Syed MANZOOR HUSSAIN SHAH vs GOVERNMENT OF N.-W.F.P. through Collector, Dera Ismail Khan and others

ORDER

'TASSADUQ HUSSAIN JILLANI, J.--- This petition is directed against the order dated. 26-10-2004 vide which a learned Judge of Peshawar High Court reviewed the order dated 5-4-2004 passed in Civil Revision No,152 of 2002 in terms as under:- "..., Hence this review petition is accepted and it is observed that the Government and the Local Administration would not cause any discrimination as to the duties of the petitioner as Mutawali of Thalia No,19, D.I. Khan City and would follow the centuries old precedents of licence;holders and Mutwalies including the petitioner."

2. Facts in brief are that respondent/plaintiff filed a suit for declaration to the effect that the order dated 3-1-1996 issued by Senior Superintendent of Police, Dera Ismail Khan is illegal and that no licence of Azadari and Majlis for Muharram including Chehlum could be issued in the name of respondent/defendant Syed Manzoor Hussain Shah (who is petitioner before us in the instant petition). Petitioner/defendant was Mutawali of the shrine subject-matter of this petition and according to him he had been leading processions. In 1995 petitioner/defendant got issued a licence to take up procession and hold Majlis from respondent/defendant No,3 which according to the respondent/plaintiff was illegal as it could only be granted with the consent of the respondent/plaintiff. The suit was decreed vide judgment and decree dated 24-5-2000. Both the parties challenged the decree of the Civil Court in appeals which were disposed of vide judgment and decree dated 19-6-2002 with the observations as under:- "The pith of the above discussion is that after taking into consideration arguments of the parties, consulting the available ' evidence and keeping in view the legal aspect of the case, this Court is of the view that S.P. D.I. Khan (defendant No,3/respondent No,4) has no authority to permanently debar a person from applying for a licence provided under section 30 of Police Act, 1861 and on the same analogy the learned trial Court too has got no jurisdiction to pass a decree of permanent injunction compelling the S.P. D.I. Khan to issue such licence in the name of Syed Ghulam Muhammad Shah for future and hence has violated the mandatory provisions of section 56-D of the Specific Relief Act. Need not to clarify here that any person or party including the parties in suit can apply for issuance of such licence and the S.P., D.I. Khan has the discretion to accept or reject the request of any party/person. As such with these observations and amendments both the appeals stand disposed of accordingly."

' The afore-referred judgment and decree was challenged in revision before the High Court but without any success and the order of the Additional District Judge was maintained.

3. Learned counsel for the petitioner submitted that vide impugned order the learned High Court had reviewed its earlier order passed in Civil Revision which is not sustainable in law, that no case for review was made out and the learned Judge has diluted the effect of the judgment and decree of learned Additional District Judge on a conceding statement made by learned Deputy Advocate- General.

4. Learned counsel for the respondent/caveator defended the impugned order by submitting that the observations made in the impugned order have in no manner adversely affected petitioner's case and that no case for grant of leave is made out.

5. Heard. The impugned order on the face of it appears to be an innocuous order as prima facie it does not adversely affect petitioner's case. The order of the Additional District Judge dated 19-6- 2002 remains intact and respondent/defendant's learned counsel does not find any cavil with it.

However, the tenor of the operative part of the impugned order could be misconstrued. In these circumstances we are inclined to dispose of this petition with the observation that the judgment and decree of Additional District Judge referred to above still hold the field and while deciding an application for grant of permission under section 30 of the Police Act, 1861 or under any amended law pari meateria to the said Act, the Superintendent of Police, D.I. Khan shall remain even-handed and proceed strictly as mandated in law.