The instant petition as also WP No, 8403/2003, WP No, 12943/2003,- WP No, 12944/2003 and WP No, 12945/2003, are being disposed of together, a common questions of law and facts are involved in all these matters.
3. Briefly stated the facts of the case are that the petitioners are the manufactures of 100% cotton thread, which according to them, is used for the kite flying, general sewing and also in the manufacture of carpets and tarpals, etc; for the above purposes, the petitioners states to have set up a unit, by installing local and important machinery and a number of workers have been employed by them. The petitioners of the other cases are also the manufactures or the sellers of the material, items/finished products, which are directly or indirectly used in the process of kite flying.
4. Respondent No, 1, the Zila Nazim of Lahore, in the press conference held on 24.6.2003, published in the newspapers, the second day, has vowed to impose a Ban on the kite flying, which according to the press cuttings, appended with the petitioners, was likely to be effective from 1st of July, 2003, and shall be for a period of three months. Subsequently, the Zila Nazim, while exercising his power u/S. 144 Cr.P.C., issued the notification dated 30.6.2003 to the following effects:-- "Kite flying in Lahore District has assumed alarming proportions for human life by way of use of different nature of cord with hazardous chemical material and metallic wire, and that distinction between harmless and harmful kite flying has become difficult. NOW THEREFORE, I, Mian Amir Mahmood, Zila Nazim, Lahore in exercise of powers conferred upon me under Section 144 Cr.P.C. of 1898, do hereby prohibit:-- "flying of kites as well as sale, purchase, storage, manufacture, transportation and use of Kites and any other material used for flying kites within the revenue limits of Lahore District."
Thereafter, in pursuance of sub-section (6) of Section 144, the Respondent No, 2, issued a notification dated 4.7.2003, initially extending the Ban for a period of two months. But this imposition through various notifications issued by both the respondents have been extended from time to time. The petitioners are aggrieved of the above, hence these petitions.
4. Mr. S.M. Masoud, learned counsel for the petitioners contends that the original notification dated 30.6.2003, issued by the Zila Nazim is malafide for two reasons, firstly, it was circulated on 30.6.2003, but it has been signed on 1.7.2003; secondly, because there was no urgency in the matter, which is an essential condition to invoke the said provision, rather Respondent No, 1, for extraneous reasons was predetermined to take the actions of banning kite flying and the sale of goods/material related thereto, which he has been indicating much prior to the final action and in this behalf, the campaign was going on since long. Thus instead of the action u/S. 144, the law should have been made, during the available period to curb the problem of dangerous kite flying, if any. Besides, the law in the form of LIX of 2001, on the subject was already there and thus in the presence thereof, Section 144 Cr.P.C. could not be invoked. It is further submitted that the first notification of the Zila Nazim dated 30.6.2003 had lapsed after two days, thus at the time when, it was extended by the Government on 4.7.2003, there was no such notification, which could be extended. It is also argued that the impugned notifications are vague and do not specify as to what kind, specification, nature, quality of the thread is prohibited. The threads manufactured by the petitioners is used for a number of other purposes and therefore, to completely preclude the petitioners from manufacturing and sale, etc., of their product, on the pretext that it is also usable in the process of kite flying, tantamounts to putting unreasonable and arbitrary restraint and restriction upon the petitioners' right to business, which is not permissible under the law. He submits that action taken by the respondents in Banning manufacturing, etc. of the material used in the kite flying does not fall within the ambit and purview of Section 144 Cr.P.C. Above all, it is submitted that the impugned notifications are the violative of the fundamental rights of the petitioners enshrined by Articles 18 and 24 of the Constitution; the issuance of successive notifications in a routine manner without proper application of mind each time, is an improper and colourable exercise of power in terms of Section 144. In support of his various contentions, Mr. S.M. Masoud, has relied upon the following judgments : M Abdul Satar Fazal Din vs. The State (1971 P.Cr.L.J. 228). Ramzan Welfare Trust vs. Wapda, (PLJ 1997 Lah. 573). Yahya Jan, etc. vs. District Magistrate, Peshawar, etc. (1980 P.Crl. L.J. 799). Hassan, etc. vs. The State (1976 P.Cr.L.J. 997). Ismail Khan, etc. vs. Kamran Ali Afzal (1998 PLD 1340).
Muhammad Wayyum, etc. vs. Rana Waris Ali Khan, (PLJ 1993 Lah. 1). Dr. D.C. Wadhwa, etc. vs. State of Bihar, etc. (AIR 1987 SC 578). Niaz Muhammad vs. District Magistrate Bhahawalpur (PLD 1975 BJ 36). M/S Mansoor Textile Mills Ltd. vs. Assistant Commissioner Shorkot, etc. (1984 P.Cr.L.J. 1021). Habib Bank Officers Welfare Association, Gujranwala, etc. vs. District Magistrate, Gujranwala, (2000 P.Cr.L.J. 1554). Habib Bank Officer Welfare Association Gujranwala Circle (Regd.), etc. vs. District Magistrate, Gujranwala (NLR 2000 Cr1. 345).
Altaf Shakoor vs. Govt. of Sindh (1995 P.Cr.L.J. 615). Mr. M.D. Tahir, Advocate vs. Govt. of the Punjab, etc. (2001 YLR 381).
He has also referred to the book titled Fundamental Rights and Constitutional Remedies in Pakistan by Mr. Syed Sharif ud Din Perzada 1966 Edition 6 Chapter I, page 4.
5. Mr. Naseem Kashmiri, the learned counsel for the petitioner in W.P. No, 12945/2003, has mainly relied upon the same argument as addressed by Mr. S.M. Masoud, but in addition has cited the judgments reported as Mueez Ali Hatim, etc. vs. The State (PLD 1966 Lah. 675), Zaheer ud Din etc. vs. The State (1993 SCMR 1718), Asia Floor Mills etc. vs. Director of Foods (PLD 1996 Lah. 133).
6. Replying to the above, Mr. Shabar Raza Rizvi, learned Advocate General, Punjab, has argued that Section 144 Cr.P.C. consists of two parts first, where the powers are given to the Zila Nazim for meeting an urgent situation to safeguard the life and property of the citizens, and to take measures against riots and affray, etc. and second, by virtue of sub-section (6), the Government has the authority to continue the order of the Zila Nazim, for an indefinite period of time, which is an independent action. It is stated that as the evil, to curb which, the action was originally initiated, persisted, thus in the unchanged circumstances, the Govt. could continue the orders. He has argued that the action under question was taken with honesty of purposes, to safe the life and property of the citizens and to curb the menace and the hazards of dangerous kite flying, which was severely imminent, and was a source of annoyance and a threat to the life, property, peace and tranquility of the public at large. He has submitted that in Mr. M.D. Tahir, Advocate vs. Govt. of the Punjab (1999 MLD 2579), this Court even had suggested that action should be taken u/S. 144 to meet the problem of kite flying. He has placed reliance on the following judgments:-- Mirza Khurshid Ahmed, etc. vs. Gout of Punjab, etc. (PLD 1992 Lah. 1 at 33, 34).
Mr. MD. Tahir, Advocate vs. Govt. of the Punjab (1999 MLD 2579 at page 2580 Para 4).
M.D. Tahir, Advocate vs. Govt. of the Punjab, (NLR 2002 Crl. 251).
Altaf Shakoor, etc. vs. The Govt. of Sindh (1995 P.Cr.L.J. 615 at pages 621, 624).
Muhammad Shafi, etc. vs. Govt. of Sindh, etc. (NLR 2002 Crl. 682).
Karachi Building Control Authority vs. Saleem Akhtar Rajput (1993 SCMR 1451 at page 1455).
Responding to the arguments, if the impugned notifications are violative of the fundamental rights of the petitioners, the learned Advocate General, states that the kite flying is not fundamental right and therefore, if in order to prevent the adverse consequence of this activity, the respondents have blocked the very channel and the source thereof, such as the goods/the material, which enables the kite flying, no illegality has been committed in taking the action u/S. 144 Cr.P.C. He has also argued that the right of the individuals must yield in favour of the public good and in such situation, even if the actions impugned are not strictly in accordance with law, still the exercise of writ jurisdiction can be declined. In this behalf, he has relied upon Anjuman Prize Bonds Dealers vs. Province of Punjab, etc. (PLD 2001 Lah. 129) and Nawab Syed Raunaq Ali, etc. vs. Chief Settlement Commissioner, etc. (PLD 1973 SC 236).
7. As I deemed the question about the enforcement of the fundamental rights involved in these matter, a very important proposition, therefore, I also requested Mr. Umer Atta Bandial, advocate to act as amicus curiae to assist this Court on the issue. Mr. Bandial, by referring to Article 18 of the Constitution of Islamic Republic of Pakistan, has stated that every citizen has a right to enter upon and carry any lawful profession and business, etc. and there can be no clog on such activity; the State can only regulate the profession/business, etc. and the regulation according to him in no manner can be equated to a prohibition. He further submits that the notifications are discriminatory and have nexus to repress the mischief of the kite flying. If the object according to him, is to prevent the accidents/death of the citizen and damage to the public and private property, it should be the kite flying, which under the proper legislation or the legal cover be prohibited. But indirectly to achieve the above purpose, the fundamental right of the petitioners cannot be encroached upon.
8. Heard. Some year ago, the kite flying in a particular season and specially on the "Basant" day, was considered as an innocent past time and was a Cultural Festivity of Lahorites. But today, the activity has extended to almost whole of the year and involves hazards and serious implications, such as the grave threat to the life and the property of the citizens. Since the last few years, with the celebration of night Basant; aerial firing, loud music, use of metal and chemical wire/cord; flying of kites in the open places and parks, has caused annoyance to the public-at-large, and is a clear intrusion and violation of the citizen's right of privacy and their peace and tranquility. The tripping, interruption and short circuiting of the electric supply has became rampant and a routine, which is causing damage not only to WAPDA's equipments, inflicting colossal loss, but the essential home appliances of the common man, which he, during these hard times of financial crunch, may not have the capacity of seeking repairs or the replacement. Thus, the innocent pass time of yesterday, has undoubtedly become a menace for the society today; the daily reported accidents, injuries and deaths caused on account of the above activity are scaring. The fun of few, has become the hazard of large number of people. A person even at his home, which is considered to be the safest place for him, may cut his throat or get electrocuted for no fault or negligence on his part. I am sure that, out of the total population of the city of Lahore, a maximum 15%, to 20%, may be involved in the kite flying, however, the remaining have been made the hostage and suffers of this menace.
It is a publicly known fact that, on account of the substantial harm and loss to the life and property, various N.G.Os, and other social organizations, have been raising hue and cry and drawing the attention of the people in power. Appeals are being published by WAPDA in the Newspaper requesting to give up the use of metallic wire. But still the situation did not improve. This obviously is and should be a matter of concern, for the people, who are in authority and directly responsible for protecting the life, safety and property of the citizen.
9. Perhaps, it was to discharge the above obligation, that the Zila Nazim of Lahore initiated the action u/S. 144 Cr.P.C. and issued, notification dated 30.6.2003, which action may be commendable otherwise. But the first question is, if such object can be achieved in terms of Section 144 Cr.P.C. by preventing the petitioners from manufacturing and selling, etc. the products useable in kite flying.
Because, it is an important rule for the dispensation of justice, that even a most laudable purpose cannot be allowed to be achieved, otherwise than in accordance with law, and certainly not by transgressing the authority under the law. Besides, the more important question is about the violation of the fundamental rights, which issue shall be dealt separately in the judgment. Anyhow, the answer to the first question for the following reasons is in the negative.
(i) From the catena of the case law cited by the counsel for the petitioners, the action permissible and warranted by Section 144, is transitory in nature, which is meant to cater for a temporary situation or to facilitate the stop-gap arrangement till proper and legal measures are taken to safeguard and preserve the life and the property of the public, etc. The power conferred upon the Zila Nazim and the Government in the Section is to meet a grave situation which, has erupted or is likely to erupt and if no measures are immediately taken, it may cause the situations mentioned in the section. Obviously, in this scenario, it is duty of the Zila Nazim and also the Provincial Government to prevent and control such situation, and the emergency action, which can be taken under the law definitely is through the exercise of the powers u/S. 144 Cr.P.C. But if the situation has been invogue since long, which was the position prevailing in the present matter for the last more than a decade, a permanent solution should be found to meet the problem by making a law, rather allowing the Zila Nazim and the Government to exercise the powers u/S. 144 Cr.P.C., which cannot be used to prevent the petitioners from conducting their business, etc. (ii)It is a publicly known fact that for the last many years, dangerous kite flying has been causing great annoyance to the public-at-large; this activity has been causing accidents and the causalities in the city and also damage to the public and private properties. It was with the object of preventing the perils of the activity that the Government had earlier issued the Ordinance LIX of 2001, which clearly establishes that the situation was neither urgent nor emergent but was prevailing since long. This also is clear from the newspaper clippings appended alongwith the petitions and from the press conference of the Nazim. Therefore, it was important for the respondents to have brought a change in the existing law on the subject or to legislate fresh. But no action against the petitioners could be taken under Section 144 Cr.P.C.
(iii)The first notification was issued by the Nazim on 30.6.2003, but it was signed a day later, therefore, not only it was technically wrong, but also shows the predisposed mind of the Zila Nazim and therefore, is a colourable exercise of the jurisdiction. Moreover, the first notification of the Nazim had lapsed after two days and was not in force, when the notification dated 4.7.2003 was issued by the Govt. thus in the light of the spirit of the provisions of Section 144(6) Cr.P.C., it is only an in-force notification of the Nazim, which could be extended. Therefore, the Govt. had no jurisdiction to revive a dead action, and there is nothing on the record, if the notification of the Govt. was applied retrospectively and the same could be so applied under the law.
(iv)(iv) As stated earlier, the action contemplated by Section 144 Cr.P.C., is emergent, temporary and stopgap in nature, to meet the situation provided in that Section. In this case, the ban was imposed by the Zilla Nazim for two days, which was initially extended for two months by the Government. Thereafter, it was never lifted till the last notification of the Government dated 20.1.2004, which was issued during the pendency of these petitions and seems to be for allowing the celebration of Basanat, otherwise; there was no change in the situation. But before that the Zilla Nazim and the Government in routine kept on issuing successive notifications, without assessing the situation after lifting the ban for even a single day or making efforts for the legislation on the subject. Thus, in such circumstances, the re-promulgation of the ban through repeated notifications on the face of it is the misuse and abuse of authority by the respondents, which cannot be termed in law as the proper exercise of jurisdiction.
10.Coming to the second question about the fundamental rights, which in my view is most important and the basic. But before answering the proposition, I feel it expedient to highlight the meaning, the nature, the scope and the significance of these rights, which have been accurately and precisely defined in our Constitution, and is one of the blessings upon the citizen of Pakistan.
11. The fundamental rights are primordial in nature, which are imperative and essential for the very existence, development, 'progress, prosperity of the citizen of the State, and are necessary for the growth and expression of their personalities. These are basic in character because, they enable a citizen to chalk out his own life in the manner he likes the best; these are the rights which, a citizen possess as a creature of the nature, and are natural in form. However, for the precise identification, extent guarantee and the enjoyment of such rights in an ordered democratic society, such as ours; the whole nation entered into a contract and by a unanimous B resolution endorsed the right in the Constitution of 1973; on account of the above, the political powers of the State stood security for the sanctity and inviolability of these rights; enabling the citizen to successfully resist the political authority in the State and assert his rights in the case of breach. The provisions of Article 4 of the Constitution, has made these rights inviolable and inalienable by conferring a right upon every individual to be dealt with in accordance with law and by specifically providing that "No person shall be prevented from or be hindered in doing that which is not prohibited by law".
12.It has been made the duty of the State to protect, respect, safeguard, ensure and to facilitate the exercise of these rights. And in case of any violation, and encroachment, thereof, the judiciary specially the superior Court of the Country by means of Articles 199(2) and 184(4), has been made responsible to provide remedy to these citizens, whose rights have been encroached by the State, or its functionaries. The importance of the fundamental rights can also be gauged from the provisions of Article 8 of the Constitution, which declares that any existing law, which is inconsistent with these rights shall be void, and further prohibits the State from enforcing any law which takes away or abridges such rights. Syed Sharif ud Din Pirzada in his books Fundamental Rights and Constitutional Remedies in Pakistan 1966 Edition 6 at Chapter 1, page 4 has elucidated the significance of these rights as under: The political institutions and social structure rest on the theory that all men have certain rights of life, liberty and the pursuit of happiness, which are unalienable, fundamental and inherent. When these "unalienable" rights are protected by Constitutional guarantees, they are called "fundamental" rights because they have been placed beyond the power of any organ of the State, whether executive or legislative to act in violation of them. They can be taken away, suspended or abridged only in the manner in which the Constitution provides." The above discussion to some extent, has highlighted the importance of the fundamental rights in a democratic set-up, as established in our country, where the independence of the judiciary is the part of the basic structure of our Constitution and the judiciary is functioning to act as a watchdog and to supervise that such rights are safeguarded and protected. It is thus clear that the fundamental rights are most superior and special and nature and cannot be interfered without strict recourse to the law and that too subject to the condition provided for the exercise of these rights.
13. Settling up-the above criteria, I shall now endeavour to examine, whether the fundamental rights of the petitioners, as enshrined by Article 18 of the Constitution, have been violated. To answer this question, the following two ancillary but important questions also arises for the determination:-- (i)What are the parameters for the exercise of the right under Article 18; (ii)Whether such right has been and could be interfered, by the Zilla Nazim or the Government under Section 144 of the Cr.P.C.
To resolve the above and for the facility of reference, I feel expedient to reproduce the provisions of Article 18, which reads as below:--
18. Freedom of trade, business of profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business : Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by licensing system; or (b)the regulation of trade, commerce or industry in the interest of free competition therein; or (c)the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons.
14.From the plain reading of the Article, it consists of two parts. The first, which confers upon a citizen a right to choose his profession and business, a etc. and is objected towards enabling the citizen to explore and adopt the best for his future and the means of his living and earning; and the best for the expression and recognition of his skill and the ability. However, this right is not absolute and unqualified, rather the Article itself permits the State through proper legal means to impose certain qualification for the exercise of the right, without possessing which, it cannot be so exercised. For example, a doctor or a lawyer for practicing in their relevant fields, essentially needs the degree of MBBS or LL.B. Such qualification may also be prescribed for a person who intends to conduct a particular business or trade, which may involve some special skill and the expertees. The second part of the Article, permits only such profession or the business, etc, which is "lawful".
Meaning thereby that any unlawful profession, etc. shall not be protected under this. The expression "lawful' appearing in the Article has been used in contradistinction to the word "unlawful" and shall aptly mean according to the Black's Law Dictionary, 8th Edition, page 885, as follows:-- "Legal; warranted or authorized by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law; not illegal. The principal distinction between the terms "lawful" and "legal" is that the former contemplates the substance of law; the latter the form of law. To say of an act that it is "lawful" implies that it is authorized, sanctioned, or at any rate not forbidden by law." It is thus clear that every citizen shall have the right to choose and conduct any profession, occupation, trade or business, but subject to the requisite qualifications, if any, prescribed by the law in that behalf and that further such profession etc., has not been declared unlawful or forbidden by any law. It may however, be observed that the validity of such prescribed qualifications or the prohibition can still be examined by the superior Court in exercise of the power of the judicial review, on the touchstone of other fundamental rights, including Article 18 and other provisions of the Constitution and the law.
15.Before examining the question, if the impugned ban has breached the rights of the petitioner, I may briefly like to deal with the proviso to Article 18, which creates an exception to the right and permits the State to enforce and regulate the trade or the profession by a licensing system; control the monopoly for a free competition and restricts any trade/business exclusively to be conducted by the State itself. Anyhow, it is not the case of either of the party that the present matter falls within the exception provided by the proviso.
16.Coming back to the issue, when questioned, the learned Advocate General, has not been able to establish, if there are any qualification prescribed for the conduct of trade and profession conducted by the petitioners. He has also not been able to show, if the trade and business of the petitioners under any law, has been declared unlawful and prohibited. It is not argued by him, if any licence for the manufacturing and the sale of the goods by the present petitioners in this particular case, was required and has not been procured by the petitioners. Thus, it is manifest that the trade and business of the petitioners, is not circumscribed by any qualification and has not been prohibited or forbidden by any law, resultantly, the petitioners have a fundamental right to conduct their above mentioned business and the trade.
17. Now the question whether the right of the petitioners, can be interfered by the Zila Nazim or the Government, suffice it to say that the authority vested in the respondents u/S. 144 Cr.P.C. is more in the nature of an administrative character and it is unimaginable in view of the position and the importance of the fundamental rights highlighted above, that the administrative authority of the respondent, can be invoked to suspend or interfere with these rights. This is so, particularly in view of the Articles 4 and 8 of the Constitution, which provides that these rights are inviolable and even the State has been prohibited to make any law inconsistent with the free exercise of these rights and even the existing laws impugning upon the rights have been declared void. In this manner, the supremacy of the parliament to make the law has been made subservient to the fundamental rights of the citizen. Thus how it is possible that the Zila Nazim and the Government, could directly or indirectly, in exercise of the power u/S. 144, interfere, curb, forfeit, suspend or take away the fundamental rights of the petitioners under Article 18 of the Constitution. I am, therefore, constrained to hold that the notifications impugned are in clear breach of the petitioner's right mentioned above and on this account, are declared to be violative and nullity in the eyes of the law.
It may, however, be observed that none of the kite flyers has approached this Court, nor it is a fundamental right of any citizen to fly kites, resultantly, the present judgment in no manner, should be considered as declaring, the notifications with regard to the prohibition of kite flying, as illegal etc., which aspect, shall be considered, if so challenged before this Court in any appropriate matter.. It may also be observed that the argument of learned Advocate General that in one of its judgment, this Court has suggested for the imposition of the ban on the kite flying by taking resort to action u/S. 144 Cr.P.C., suffice it to say that in the said judgment, there is no observation, even remotely suggesting the imposition of the ban on the business of the petitioners, which otherwise, has nexus with the kite flying. Therefore, the judgment is not considered relevant for determining the issue of fundamental right involved in these cases.
18. Meeting the argument of the learned Advocate General based upon Nawab Syed Raunaq Ali, etc. vs. Chief Settlement Commissioner, etc. (PLD 1973 SC 236), that the issuance of the writ is a discretionary relief and in the circumstances of the case, should not be issued, has no merits.
Because in these matters, primary and basic question involved is, about the exercise and the violation of the fundamental rights of the citizen. The aforesaid judgment has never laid down the law that the relief in the writ jurisdiction on the principles of discretion should even be refused in the case where the fundamental right has been visibly violated.
In my view, the provisions of Articles 199(2) and 184, independent of the general writ jurisdiction, have saddled the superior Court with the responsibility to enforce the fundamental right in case of a complaint about their violation; the aggrieved citizen on the basis of the rule Ex debito justitiae as a matter of right, can claim the redressal of his grievance and for the enforcement of his fundamental right and there is little room for the discretion left in such cases.
In the light of what has been observed above, the present petitions are allowed and the impugned notifications to the extent of the petitioners banning, suspending, prohibiting their business and storage, transportation of their goods, are declared as illegal and ultra vices and thus are set aside.