' Writ Petitions Nos.2653, 2654 and 2829 all of 1991 are being disposed of through this judgment as they arise out of similar circumstances and are based on identical facts and points of law. It shall, however, remain on the file of Writ Petition 2654 of 1991.
2. The facts forming the background of these petitions briefly are that the petitioners numbering 16 in all are persons of tender age. They were rounded up by the local police from different parts of Lahore and detained under the relevant provisions of the Punjab Vagrancy Ordinance, 1958 (Ordinance No,XX of 1958), hereinafter referred to as "The Ordinance".
3. The petitioners have, through these petitions, challenged the vires of various provisions of the Ordinance mainly on the grounds, inter alia, that the provisions of the Ordinance are in violation of the Fundamental Rights guaranteed by the Constitution. It has been claimed, in particular, that under Article 10 of the Constitution, no one can be arrested or detained under any law providing for preventive detention unless procedure laid down in sub-Article 10(4) is strictly complied with. As the Ordinance clearly provides for preventive detention it obviously violates the provisions of Article 10; that Ordinance seeks to penalize a particular and a selected class of citizens hence it was discriminatory and offended against the provisions of Article 25 of the Constitution and so also the essence of Article 15 of the Constitution by restricting free movement of a citizen; that the petitioners who are destitute citizens and are absolutely innocent have been deprived of their liberty illegally; that the action of respondents was obviously against the spirit of Article 2A of the Constitution which envisages that principle of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed, that in these petitions social justice has been denied to the people who have been detained without any crime having been committed by them; that Islamically such type of poor persons could not have been detained rather State would have been responsible for providing them sustenance being resourceless and needy.
4. The respondents have stoutly resisted the petitions claiming, inter alia, that the Ordinance does not violate, in any manner, any Fundamental Right of the petitioners inasmuch as section 7(3) respects the requirements of Article 10(4) of the Constitution; that all the rights termed as Fundamental Rights in the Constitution are subject to reasonable restrictions in the interest of law and society in general; that the Ordinance provides for trial and, therefore, ensures fair procedure which is an essential part of the due process of law guaranteed by Article 4 of the Constitution. In fact that Ordinance basically requires that such- like peoples are not to allowed to roam about in the Society and instead they are taken to welfare homes where they are provided food and shelter.
As for objection of discrimination, Article 25 of the Constitution allows the State to make reasonable classification. This law obviously was made for a special class of beggars and wanderers. As such there will be no question of discrimination.
5. The arguments have been heard rather at length. The main emphasis of the learned counsel for the petitioner was that the Ordinance encroaches upon the free movement and free choice of profession of the citizens, hence was repugnant to various Fundamental Rights guaranteed by the Constitution. It was also contended that since Pakistan was not a welfare State as the State has failed to provide education, health care, employment benefits etc. To their citizens, there was no justification for imposing such harsh restrictions on the poor and needy citizens of the country; that instead of providing basic necessities to the citizens which is a pre-requisite for a good Government, they are being jailed without any lawful justification.
6. From the respondents side it was argued that establishment of welfare system was meant to cater for the needs of poor, needy and jobless persons who had no means of livelihood and the Ordinance was enacted for controlling and eliminating vagrancy and nobody's interest or right has been infringed.
7. As for reasonable classification, it has been held time and again that State may classify the people for the purpose of legislation and make law applicable only to persons of particular class.
Reference in this behalf may be made to Asfand Yar Wali's case PLD 2001 SC 607 where it was held that NAB Ordinance was a special legislation meant for special class of people and, therefore, cannot be struck down on the ground of discrimination.
8. The Ordinance has already been thoroughly examined by their Lordships of the Honourable Federal Shariat Court as reported in PLD 1985 FSC 344. After discussion on the provisions of the Ordinance, their Lordships had come to the conclusio that begging was not approved or encouraged by Islam. There were everal traditions of Holy Prophet (p.b.u.h.) in which it has been decri d as well as scorned. According to the view of their Lordships begging as only allowed for three types of persons:--
(1) One who would be in povert
(2) One who has borne a great 1 ss.
(3) One who had to pay huge amount in Diyat.
' Hence it is abunduntantly clear that Islamically begging has not been approved except in the case of stress and dire necessity. The begging by use of fraudulent means was cond emned.
Finally the provisions of Ordinance were approved by the Fe leral Shariat Court and it was held that Ordinance was not repugnant to the Injunctions of Islam. Now after these findings of Federal Shariat C ourt which had the jurisdiction to declare any law to be repugnant to Is lam, it does not befit us to say that Vagrancy Ordinance was either cont rary to Fundamental Rights or was violative of Injunction of Islam. If it was Islamically okay then it surely does not offend against any Fundamei tal Rights.
9. In view of the findings of the Federal Shariat Court, I am afraid further examining about the provi ions of Ordinance would not be legitimate exercise on our part. However, I cannot refrain from observing that such type of begging as envisaged by Ordinance has clearly been disapproved by Isla because such-like beggars are professionals and prefer to remain dle even being able-bodied.
Holy Qur'an describes the persons who re Ily deserve charity:-- "S.II. 273 (Charity is) is for thos in need, who, in God's cause Are restricted (from travel), cannot move about. In the land, seeking (For trade or work). The ignorant man thinks, Because of their modesty, That they are free from want. Thou shalt, Know them By their (unfairing) mark: They beg not importantly From all and sundry. And whatever of good Ye give, be assured God knoweth it well."
10. The charity is only permissible to those who are really and genuinely needy and do not adopt begging as a profession. It is, therefore, necessary for those who are charged with the administration of this Ordinance to keenly observe that whether a beggar is adopting beggary as a profession to avoid working and earning his livelihood and thus, becoming a parasite for the Society. If he appears to be a professional and a repeater, the provisions of Ordinance are very much applicable to such a person. If, however, the relevant officials come to the conclusion that the beggar has been impelled by circumstances to provisionally resort to begging and is not a professional his would not be case of detention. I would, therefore, direct the administrative department. Of the Ordinance to issue directions to all concerned that they should keenly observe the persons and then come to the conclusion that whether they are professionals and thus, come under the mischief of the provisions of Ordinance or are genuinely to be needy who are required assistance and help from their well to do brothers in the Society. It appears that none of the petitioners was still under detention. In these circumstances the petitions are dismissed with the above direction to the Administrative Department who shall submit a compliance report to the Additional Registrar (Judicial) of this Court within six weeks after the receipt of the copy of the judgment. No order as to costs.