Syed SARFRAZ HUSSAIN BOKHARI vs DISTRICT MAGISTRATE, KASUR AND OTEIERS

1. ' SHAFIUR RAHMAN, J.-Leave to appeal was granted to the petitioner to examine the legal question whether in view of the decision of this Court in Mian Muhammad v. Government of West Pakistan (1), the District Magistrate was competent under section 30 of the Police Act to refuse for all times a licence to the petitioner to take out a religious procession in the locality to which he belongs.

2. ' The appellant professes Shia faith and is a resident of Kasur Town. He applied on 6-10-1979 for a licence under section 30 of the Police Act to take out a Zuljinnah procession on 24-3-80. The District Magistrate after obtaining police report in the matter refused him the licence on 12-11-1979. He challenged this refusal by means of a constitutional petition which succeeded. The District Magistrate, however, then invoked his powers under section 144, Cr. P. C. And promulgated a prohibitory order on 23-3-80. On 14-6-80 the appellant filed yet another application for permission to take out Zuljinna procession. As this application remained unattended for long the appellant moved another constitutional petition on which directions were issued to the District Magistrate to decide the application at an early date. The District Magistrate obtained a report from the S. H.

0. And heard the parties in the matter and on 2-3-81 refused the licence giving out following reasons for the refusal :-

(i) There are 3000 Sunnis living in this abadi while there are only two houses belonging to Shia sect.

(ii) The Sunnis are bitterly opposing the taking out of procession by the Shias.

(iii) The situation is already explosive and likely to take a violent turn it the Shias take out their procession.

(iv) Existing law and order situation does not warrant the issuance of a licence to the petitioner.

3. ' The appellant challenged this order of the District Magistrate by means of a constitutional petition.

4. This petition was dismissed in limine by the Lahore High Court on 28-3-81 observing as follows:- " The facts given above do show that the District Magistrate passed his order after applying his mind to the facts of the case and I am not' persuaded to hold that he acted without lawful authority in refusing to grant the licence."

5. ' The learned counsel for the appellant contended that the right of a citizen to take out a religious procession on a public street was fully recognized as far back as 1925 in the case of Saiyed Manzur Hasan and others v. Syed Muhammad Zaman and others , in the following words:- "Persons of whatever sect are entitled to conduct religious procession through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrate may lawfully give to prevent obstructions of the thoroughfare or breeches of the public peace."

6. ' A more forceful expression of the same law, according to the learned counsel for the appellant, is found in the judgment of Suleman Judge in Muhammad Jalil Khan and others v. Ram Nath Katua and others :- "There is a right in every community to take out a religious procession with its appropriate observance along a high way. This is an inherent right and does not depend on the proof of any custom or a long established practice. Even if such a procession be an innovation it would be in exercise of legal rights The Police authorities are responsible for a proper regulation of traffic and can issue necessary orders for that purpose. Magistrates are competent to issue directions to prevent obstructions of public thoroughfares."

7. ' According to the learned counsel for the appellant even in the case of Mian Muhammad v.

8. Government of West Pakistan that right was recognized and the opportunity to participate in such a procession was afforded in the following words :- "It is plainly clear from section 30 of the Police Act that processions cannot be banned altogether under the provisions of that section. But that does not mean that licence to take out processions can never be refused to any one on any of the grounds or that the number of processions to be taken out in any particular area cannot be regulated under any circumstances. The expression "he may issue a licence" occurring in section 30(3) of the Police Act implies that in a bit case licence may not be issued to any particular applicant. In the instant case far from imposing any ban on taking out processions licence was issued to a co-villager of the petitioner for taking Muharram processions. Although the petitioner's application for licence was refused, he was not forbidden to participate in the procession permitted to be taken out by his co-villager."

9. ' It is contended by the learned counsel for the appellant that refusal of a licence in the circumstances of this case and on the grounds mentioned amounts to a perpetual prohibition to take out a procession, a ban which is complete and total. The law does not countenance such action.

10. ' The learned Assistant Advocate-General on the other hand contended that as the law explicitly provided for the grant of a licence there was no question of a legal right inhering in the appellant and as held in Government of Pakistan v. Zamir Ahmed it was a case of a mere privilege and he could be in appropriate case denied by the competent licensing authority, the licence to take out the procession. To support the order of the District Magistrate, as' within jurisdiction and with lawful authority the learned Assistant Advocate-General referred to decision in Muhammad Hussain Munir v. Sikander and para. 9 of the judgment in Muhammad Aslam v. D. M. Gujrat .

11. ' The law under which the appellant applied and the authority refused the licence is contained in section 30 of the Police Act which is reproduced hereunder in extenso "30. Regulation of public assemblies and processions and licensing of same.-(1) The District Superintendent or Assistant District Superintendent of Police may as occasion requires, direct the1 2 3 4 5 conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares and prescribe the routes by which and the times at which such processions may pass.

(2) He may also, on being satisfied that it is intended by any person or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form a procession which would, in the judgment of the Magistrate of the District, or of the sub-division of a district, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a licence.

(3) On such application being made, he may issue a licence specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this section : Provided that no fee shall be charged on the application for, or grant of, any such licence.

(4) Music in the streets.-He may also regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies."

12. The general right of the public to assemble3and take out processions o public streets or thoroughfares is manifestly recognized in this law. In recognition of such a right certain statutory powers have been conferred on the District Superintendent and Assistant District Superintendent and the Magistrate of the District in the matter of prescribing the route, the timing and imposing regulatory conditions on the conduct of the assembly or the procession. The very power to direct an application for a licence is dependent on the jurisdictional fact that "in the judgment of the Magistrate of the district or of the sub-division of a district" if such an assembly or procession is uncontrolled, it is likely to cause a breach of the peace. So the likelihood of the breach of peace, in the absence of control, provides the jurisdiction to impose controls and conditions and that jurisdictional fact by itself cannot be made the ground for refusing the licence itself. There has to be something' else e. g. Lack of bona fide, some ulterior motive or purpose manifestly established to account for refusal of a license. In this view of the matter, as held in Mian Muhammad's case the law does not envisage a total prohibition, an outright refusal for all times to take out the procession, to participate in a religious ceremony or observance. By requiring the taking out of a licence, the organizers, the managers, the leaders of the group can be identified. They can be placed under control, with regard to the route, timing, halting places, the accompaniments, and the conduct of the procession itself. Such controls and regulatory conditions must have the sole' object of avoiding breach of peace, and without such controls or regulatory conditions breach of peace must appear imminent or likely. The plenary power to grant license where a right is altogether absent as in the case of import/export of goods is concerned, is a different power in content and quality than the power to license processions and assembly which right finds recognition in the licensing law itself. This power cannot be used to completely ban or prohibit the assembly or procession. In this case the action of the District Magistrate was clearly without jurisdiction and lacking in lawful authority. The appeal is accepted, the order of the District Magistrate is set aside. If the appellant applies afresh his application shall be dealt with in the light of the law declared. AIR 1925 P C 36 AIR 1931 All. 341 PLD 1975 SC 667 PLD 1974 SC 139 1980 P Cr. L J 7071 2 3 4 5