1. ' The petitioner has challenged the imposition of ban on pillion riding on motor cycles and scooters by the Government of the Punjab under the provisions of section 144, Cr.P.C. Vide Notification, dated 5th March, 2001 for two months. During the pendency of the writ petition the impugned notification was lapsed and respondent No,1 extended ban on pillion riding for a further period of one month with effect from 6th May, 2001 vide Notification, dated 7th May, 2001. The petitioner filed Civil Miscellaneous No,4 of 2001 for amendment of the writ petition to challenge vires of subsequent Notification, dated 7-5-2001 which was allowed vide order, dated 21-5-2001 as the learned Advocate-General, Punjab has no objection to allow the application as prayed for.
2. The petitioner submits that a recognized right given by section 89 of the Motor Vehicles Ordinance, 1965 whereby pillion rider is allowed to sit on two wheelers/motorcycles is taken away with the apprehension of alleged commission of crime by certain motor-cyclist which not only violates the Constitutional guarantee but has also caused tremendous difficulties to the public at large. He further submits that by issuing successive/repeated orders for the last about four years without any break and it has also violated the temporary care assigned to such orders by section 144 of Cr.P.C. Itself. He further submits that respondent No,1 has no jurisdiction under section 144, Cr.P.C. To impose such type of ban. He further submits that only a District Magistrate of a District is competent to impose the ban under section 144(1), Cr.P.C. In the specified area.
3. Mr. Maqbool Elahi Malik, Advocate-General, Punjab submits that District Magistrate was empowered by the Government, therefore, notification issued by respondent No,1 is valid on the well-known principle. When an authority has the power to confer jurisdiction upon the Magistrate then the same authority has right to exercise the same power itself. He further submits that the authority who has power to delegate his authority to his subordinate has inherent power to exercise the same power as and when needed or he has authority to withdraw the power which was conferred by the authority to his subordinate. He further submits that respondent No,1 has power to extend the period of ban as is envisaged by section 144(6), Cr.P.C. The authority who has power to extend the period of ban is competent to issue an initial notification. He further urges that if there is some lacuna in the first notification which is rectified in the second notification. The second notification was issued by the competent authority under subsection (6) of section 144, Cr.P.C. He further submits that it is the duty and obligation of respondent No,1 to maintain law and order situation in the Province. The notifications were issued keeping in view the law and order in the Province in accordance with law. For this purpose the sole Judge is the respondent No,1 who had issued the aforesaid notifications after applying his independent mind and exercising the powers in accordance with law. In support of Lis contention he relied upon Wattan Party and others v. Chief Minister and others 1999 PCr. LJ 2003, Altaf Shakoor and 4 others v. Government of Sindh 1995 PCr.LJ 615. He further urges that it is the duty of the Court to explore every possible reason for its validity before an order passed by the public authority is struck down.
2. ' The learned counsel of the petitioner in rebuttal submits that judgments relied upon by the learned Advocate-General, Punjab are distinguished on facts and law, as the above question of law was not raised and finally decided on the cited judgments.
3. We have considered the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce section 144, Cr.P.C. To resolve the controversy between the parties:-- "144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger.---
(1) In cases where, in the opinion of a ' District Magistrate, Sub-Divisional Magistrate, or of any other * [Executive Magistrate] specially empowered by the Provincial Government or the District Magistrate to act under this section (there is sufficient ground for proceeding under this section and) immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.
(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
(4) Any Magistrate may (either of his own motion or on the application of any person aggrieved); rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor-in-office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the orders; and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing. . (6) No order under this section shall remain in force for more than two months from the making thereof, unless in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the (Provincial Government), by notification in the official Gazette, otherwise directs."
3. ' The mere reading of the aforesaid section which reveals that it is only in exceptional circumstances, where emergency of the grave nature is made out i.e, danger to human life, imminent disturbance of the public tranquility or riot or affray or an urgent case of nuisance or apprehended danger, that the Magistrate would be justified in making an order under section 144, Cr.P.C. Which would have the effect of interfering with the private rights of the individuals. Under subsection (1) section 144, Cr.P.C. The duty is cast upon the District Magistrate to impose restrictions within the limits of the district over which the District Magistrate concerned has jurisdiction. The Magistrate before exercising power under section 144(1), Cr.P.C. Must be satisfied that immediate prevention or speedy remedy is essential meaning thereby the Magistrate is required to satisfy himself about, what are called the existence of necessary elements for the foundation of his jurisdiction coupled with the facts that the District Magistrate must give the material facts which weighed with him to promulgate to issue the notification. It is pertinent to mention here that section 144, Cr.P.C. Is complete Code. Section 144 of subsection (1), Cr.P.C. Is divided into following categories to resolve the present controversy between the parties:-- ' In cases where in the opinion of--
(a) District Magistrate.
(b) Sub-Divisional Magistrate or
(c) any other Magistrate (not being a Magistrate of 3rd Class specially empowered by the Provincial Government or the District Magistrate to act under this section.
4. ' The aforesaid classification shows that District Magistrate and Sub-Divisional Magistrate are competent to act under this section without empowering by the Provincial Government whereas if any other Magistrate has to take action under this section, he must be empowered by the Provincial Government. Subsection (6) of section 144, Criminal Procedure Code clarified the position that Provincial Government is only competent to extend the period mentioned in the first notification issued by the aforesaid District Magistrate, Sub-Divisional Magistrate or empowered Magistrate, meaning thereby power was conferred on District Magistrate by Statute enabling him to ensure the peace of his district and he should alone exercise power under this section. In arriving to this conclusion we are fortified by Harihaz Singh and others v. Emperor AIR 1934 Pat.
463. We are also fortified in support of the aforesaid proposition of law by the following judgments: ' Maqbool Ahmad and others v. Additional Deputy Commissioner, Bahawalpur 1980 PCr.LJ 851, Tariq Mehmood v. State and others PLD 1968 Lah. 939, Qari Abdul Hameed Qadri v. District Magistrate PLD 1957 Lah. 213, Muhammad Ismael v. Muzaffar Qadir District Magistrate PLD 1968 Lah. 1353, Ghulab Din v. Azad Jammu and Kashmir PLD 1960 Azad J&K 51, Nainamalai Goundan and others v.
5. Ramaswa ni Goundan AIR 1942 Mad.
6. 20.
7. ' Section 15 subsection (1) of West Pakistan Urban Rent Restriction Ordinance is somewhat similar as section 144(1), Cr.P.C. Section 15(a) is reproduced hereunder:- "15.---(1)(a) Government may by a general or special order, by notification, confer on such District Judges as it thinks fit the powers of appellate authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order."
8. ' The aforesaid section was interpreted by the Honourable Supreme Court in Khadim Mohiud-Din's case PLD 1965 SC 459 and laid down the following principles:-- "Subsection (1) gives power to the Provincial Government 'to appoint such District Judges as it thinks fit' as appellate authority. Now the question is: Is the District Judge as contemplated in this section the District Judge in his judicial capacity as the Presiding Officer of the principal Court in the District or a person designate? If the Legislature really wanted that the District Judges should hear the appeal as the Presiding Officer of the Principal Court in the District, it could have easily said so. The fact that the Provincial Government is given power to select for this purpose 'such District Judges as it thinks fit' indicates that the intention was not to confer appellate power on him as the Presiding Officer of the principal Court in a District. This is also clear from the provisions of subsections (3) and (5) of section 15."
9. ' The District Magistrate before exercising power under section 144, Cr.P.C. May consult the Provincial Government. We are fortified by the law laid down by the Federal Court in Gul Hassan's case PLD 1956 FC 190. Order was passed by a Magistrate who was neither empowered by the Provincial Government nor by the District Magistrate to act under section 144, Cr.P.C. The same was set aside by the reported case in Abdul Kadir Lebba Rahim and others v. State and 2 others AIR 1952 Travan Core Cochin 251. It is no doubt that preservation of the public peace and tranquility is the primary function of the Government and in the performance of that function it may be necessary for the Government to override temporarily private rights. Where there is a conflict between the public interest and private interest the former must prevail. In arriving to this conclusion we are fortified by the following judgment:-- ' Chetty v. Queen (1889) 6 Mad. 108-2 Wrir 77(F-B).
10. 'It is no doubt that the gist of action under section 144, Cr.P.C. Is the urgency of the situation, this efficacy in the likelihood of being able to prevent some harmful occurrences. As mentioned above subsection (6) of section 144, Cr.P.C. Has given authority only to the Provincial Government to extent the period 'of the Notification issued by the District Magistrate under section 144(1) by Notification in the official Gazette. In arriving to this conclusion we are fortified by Ch. Abdul Aziz v. District Magistrate, Sakhar PLD 1980 Kar. 333, Messrs Manzoor Textile Mills Ltd. v. Assistant Commissioner, Shorkot 1984 PCr.LJ 1021, Ram Narain Shah and another v. Parmasher Shah AIR 1942 Pat. 414, Niaz Muhammad and others v. D.M. Bahawalpur PLD 1975 BJ 36. The judgments cited by Mr. Maqbool Elahi Malik learned Advocate-General are distinguished on facts and law. The original notification issued by the District Magistrate under section 144(1) which was extended by himself under section 144(6), Cr.P.C., therefore, same is distinguishable on facts and law Altaf Shakoor and 4 others v. The Government of Sindh 1995 PCr.LJ 615. The relevant observation is reproduced hereunder:- "What has been done in the present case is that interest of the Provincial Government issuing the notification to extend the period for which the order under section 144, Cr.P.C. Could remain in force, the District Magistrate of the four districts of Karachi issued successive orders which came after other after the expiry of the prescribed period of thirty days."
11. ' The other case relied upon by the learned Advocate-General, Punjab is also distinguished on facts and law Wattan Party's case (supra) 1999 PCr.LJ 2003. The learned single Judge dismissed the writ petition filed by Wattan Party, relied upon cases mentioned in para.7 of the reported judgment neither in Wattan Party case nor in the judgment referred in the Wattan Party's case, proposition of law qua the power of the Provincial Government to issue notification under section 144(1), Cr.P.C.
12. Was raised and decided, therefore, these judgments are distinguished on facts and law.
13. ' The ratio of the aforesaid judgments is that the power under section 144, Cr.P.C. Can be exercised only by the District Magistrate, the Sub-Divisional Magistrate, or any other Executive Magistrate empowered by the Provincial Government or by the District Magistrate in this behalf as per principle laid down in 1983 Cr.LJ (NOC) 80 (Gauhati). It is pertinent to mention here that the first order of the Government of the Punjab, Home Department, under the provisions of section 144 of the Code of Criminal Procedure, 1898, was notified on 30th April, 1997 whereby the prohibition on the pillion ride of person on motorcycle and scooter within the Province of Punjab was imposed. The said ban was extended from time to time by various Notifications of the Government. The last Notification is of 7th May, 2001. It means that all the Governments since 1997 imposed the aforesaid ban by issuing notifications by the incompetent authority i.e, Provincial Government, whereas the competent authority as mentioned above is the District Magistrate or Sub-Divisional Magistrate or any other Magistrate empowered by Provincial Government or the District Magistrate to act under this section. The sole question for resolution before us was whether the Provincial Government is competent to issue a Notification under section 144 subsection (1), Cr.P.C. Or not.
14. ' In view of the aforesaid discussion the Provincial Government has no authority under the aforesaid provisions of law to impose ban under section 144(1), Cr.P.C.
15. ' In view of what has been discussed above the writ petition is accepted, the impugned notifications are set aside. However, the District Magistrate or other authority mentioned in section 144(1), Cr.P.C. Are at liberty to issue notification for imposition of ban within the District, which action if challenged, before the Court of law shall be examined on its own merits.
16. ' With these observations this writ petition is allowed and disposed of.