MIAN MUHAMMAD vs GOVERNMENT OF WEST PAKISTAN AND Another

1. M. R. KHAN, J.-The petitioner is a resident of Talagang, district Campbellpur and belongs to Shia sect. He submitted an application to the Superintendent of Police, Campbellpur for the grant of a licence under section 30 of the Police Act to take out Zuljinah and Alam processions during Muharram of this year. The processions were intended to be taken out on the 18th March 1970, but the Superintendent of Police rejected the petitioner's application on the 25th February 1970. It was alleged that the Superintendent of Police not only refused to issue a licence to the petitioner, but also forbade him to take out any procession. On these allegations, the petitioner made a writ petition in the High Court of West Pakistan, Peshawar Seat on the 12th March 1970, seeking the following relief :- "------the respondents be directed either to issue a licence as required by section 30 of Act V of 1861 (Police Act of 1861) or in the alternative they may be directed not to interfere in the taking out of the procession."

2. This writ petition was given an urgent hearing by a Division Bench of the High Court. It was mainly urged in the writ petition that while the Superintendent of Police is empowered under section 30 of the Police Act to control or regulate a procession, he has no power to forbid the taking out of a procession. The learned Judges took the view that irrespective of whether complete ban on taking out processions can be ordered under section 30 of the Police Act or not, the powers conferred by that section include the power to place restrictions on the number of processions. There are ten families in the village to which the petitioner belongs and that a licence for taking out Muharram processions this year was already given to Syed Munnawar Hussain Shah of the same village. The petitioner admitted in his writ petition that since 1961 his application for licence is being rejected every year. On the background of these facts, the learned Judges held that when there was no general prohibitory order against taking out processions and when one licence for taking out Muharram processions this year was already granted to a person belonging to one of the ten families of the village, the order of the Superintendent of Police passed on the petitioner's application for licence was not without lawful authority. In that view of the matter, they dismissed the writ petition. The petitioner now seeks special leave to appeal against the judgment of the High Court Mr. Jamil Hussain Rizvi, learned counsel for the petitioner has raised the same point which was urged before the learned Judges of the High Court. According to the learned counsel, under section 30 of the Police Act, the Police have no power to ban the taking out of a procession and the mere fact that another person of the same village was given a licence to take out processions cannot be a ground for refusing licence to the petitioner, far less to forbid him to take out any procession. The learned counsel cited the decisions reported in AIR 1926 Pat. 173, AIR 1935 All. 657 and AIR 1962 Pat. 244 in support of his contention that processions cannot be banned. It is not necessary to examine these cases, because 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 ground 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 fit case licence, may not also be issued to any particular applicant. In the instant case, far from imposing any ban on taking out processions a licence was issued to a co-villager of the petitioner for taking out Muharram processions. Although the petitioner's application for licence was refused, he was not forbidden to participate in the processions permitted to be taken out by his co-villager.

3. We do not, therefore, think that in the facts of the present case our interference is called for.

4. Learned counsel submitted that in a similar case, namely, in Civil Petition No. 45-P of 1968 leave was granted by this Court. We have looked into the said civil petition and find that leave in that case was granted to consider as to what extent Fundamental Right No. 10(a) under Article 6-A of the 1962--Constitution could be controlled by section 30 of the Police Act. This, however, is not the case here.

5. The petition is dismissed.