P L D 1988 Karachi 414 (PLP)

AJMAL MIAN, J.‑‑(1) This petition is directed against an order dated 23‑2‑1988 passed by the respondent under clause (d) of subsection (1) of section 5 of the Sind Maintenance of Public Order Ordinance 1960 (hereinafter referred to as the Ordinance), directing the petitioner not to make any speech and issue any statement or communicate in any other manner with any organ of the media having the effect of creating/increasing hatred, animosity between different ethnic grounds and capable of being misconstrued, misunderstood or being inflammatory in character for a period of 90 days with effect from 23‑2‑1988.

2. The brief facts leading to the filing of the above petition are that the petitioner claims to be the President of the Punjab, Pakhtoon Ittehad known as "PPI". He was seined with an order dated 21‑1‑1988 under the above provision of the Ordinance, whereby the petitioner was directed not to issue any statement or communicate in any other manner with any organ of the media for a period of 90 days with effect from 21‑1‑1988. Thereupon, the petitioner filed a Constitutional Petition. The above order was apparently revoked and the fresh impugned order was passed. The petitioner being aggrieved by the above order has filed the preset petition.

3. Mr. Mohammed Faridul Haq assisted by Mr. Munawwar Ali Bhatti has urged as follows: That no preventive order of the nature could have been passed. That no fresh order could have been passed without having fresh grounds. (3) That the impugned order is male fide as by withdrawing the earlier order and by gassing fresh order the restriction would operate for more than 90 days. ( 4) That ground ( b) mentioned in the grounds annexed with the impugned order is vague and, therefore, the entire order cannot be sustained. (5) That the provision of the Constitution is to be construed in the manner which should not admit any restriction. On. the other hand Mr. Abdul Rahim Kazi learned Additional Advocate‑General has contended as under:‑ (1) That factually the impugned order does not impose any restriction but only directs the petitioner not to make any speech which may create hatred between different ethnic groups keeping in view the situation obtaining in Karachi. (2) That if the first order was defective, a second fresh order could have been passed. ( 3) That the impugned order is bona fide. ( 4) That ground ( b) referred to is not vague. (5) That freedom of speech guaranteed under Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), is subject to reasonable restrictions imposed by law and that it is for the Court to determine the factum of reasonableness. Adverting to the first submission of Mr. Mohammed Faridul that no preventive order of the nature in issue could have been passed, it :nay be observed that, he has referred to various Articles contained in Part I1 of the Constitution relating to Fundamental Rights and clause 3 of Article 10 in' order to canvass that except under above clause 3 of Article 10 there is no provision in any Article including Article 19, which relates to freedom of speech, providing the passing of a preventive order. In furtherance of his above submission, he has referred to the case of Muhammad Zaman v. District Magistrate, Lahore, etc. reported in P L D 1958 (W.P.) Lahore 651, in which a Division Bench of the erstwhile High Court of :Vest Pakistan while construing section 7 of the Press (Emergency Powers) Act (XXIII of 1931) and Article 8 of the late Constitution of 1956 held that "when Article 8 requires that every citizen shall have the right to express himself freely, it does not mean that he can be restrained before he has actually expressed himself." It was further urged by Mr. Muhammad Faridul Haq that the language used in the present Article 19 of the Constitution is more or less identical with the language employed in the aforesaid Article 8 of the late Constitution of 1956 except the words "glory of Islam or the integrity, security or defence of Pakistan or part thereof" have been added in the present Article. The above case is distinguishable from the instant case inasmuch as in the above case by the impugned order a total prohibition was imposed against the publication without depositing of the amount of security of Rs.1,000 whereas in the present case as pointed out hereinabove, under the impunged order there is no total prohibition. The petitioner has been directed not to make a statement or communicate which may have the effect of creating or increasing hatred or animosity between different ethnic groups. In our view, strictly the impugned order cannot be construed as having imposed any restriction or embargo on the freedom of‑speech guaranteed by Article 19 of the Constitution. Every citizen is expected and is required by law not to make any statement or communicate through any media which may have the effect of creating/increasing hatred and animosity between different ethnic groups. We may also observe that Article 19 of the Constitution does not guarantee unrestricted freedom of speech and expression as it provides that "every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity; security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, commission of incitement to an offence." In other words, freedom of speech and expression guaranteed by the above Article is subject to any reasonable restrictions. Mr. Abdul Rahim Kazi learned Additional Advocate‑General has referred to the case of Muzaffar Qadir v. The District Magistrate, Lahore, reported in P L D 1975 Lah. 1198, in which Dr. Nasim Hasan Shah, J (as he then was) while construing the provisions of section 12 of the Press and Publication Ordinance 1960 and of Article 19 of the Constitution observed that "the concept of freedom of expression would imply that every citizen is free to say or publish what he wants, provided that he does not trample upon the rights of others and this freedom could become a mockery and delusory if while every man was at liberty to publish what he pleased, this was made impossible by a statutory authority :merely by refusing permission to bring out a newspaper, through which means alone he could print and publish his thoughts." The above‑cited judgment indicates that freedom of speech and expression guaranteed under Article 19 of the Constitution cannot be used for infringing the rights of others or for committing breach of law. We cannot be unmindful of the factum that unfortunately in Karachi there have been at a wide scale ethnic disturbances at the behest of anti‑State elements resulting into death of so many innocent persons.

5. As ‑regards the second submission of Mr. Muhammad Faridul Haq that a fresh order could not have been passed without having fresh grounds, it may again be observed that through the earlier order a total restriction was imposed upon the petitioner, he was directed not to make any statement or communicate in any other manner with any organ of the media. The above order, therefore, apparently was in conflict with Article 19 of the Constitution which contemplates imposition of reasonable restrictions and not total prohibition, whereas the second order, which is impugned before us, as pointed out hereinabove, does not impose a total prohibition but contemplates imposing of reasonable restriction in terms of Article 19 of the Constitution. Mr. Muhammad Faridul Haq in support of his above submission has referred to the following cases:‑ (i) Muhammad Shaft and another v. State of Jammu and Kashmir,A I R 1970 S C 688. (ii) Har Jas Dev Singh v. State of Punjab and others A I R 1973 S C 2469. (iii) Hadibandhu Das v. District Magistrate, Cuttock and another AIR 1969 S C

43. The ratio decidendi of the above cases seems to be that in view of the language used in section 13(2) of the Preventive Detention Act, 1950 (or in the corresponding provision under the relevant enactment) enforced in India (providing that upon revocation of a detention order no fresh order can be gassed without having fresh grounds), afresh detention order without the backing of fresh ground will not be sustainable in law‑and that it does not‑make any difference whether the earlier order was valid or invalid. In our view the above cases have no application to the present case as there is no parallel provision in the Ordinance providing that no fresh order can be passed without having fresh grounds.. Mr. Abdul Rahim Kazi has referred to the case of Mumtaz Ali Bhutto and another v. The Deputy Martial Law Administrator and another, reported in P L D 1979 Kar. 125 in which a Division Bench of this Court while construing sub‑para (2) of Martial Law Regulation No.12 held that the Court is to examine the legality of the order in force and not the factum that the earlier order was invalid. Reference may also be made to the case of Masood Ahmed v. The Government of Sind, through Secretary, Home Department, Karachi and another, reported in P L D 1976 Kar. 311 and the case of Bahar Khan v. Inspector‑General, Frontier Corps at Quetta and 3 others, reported in P L D 1987 Quetta

13. In the above first case a Division Bench comprising of Khuda Bakhsh PAarri, J and Zaffar Hussain Mirza, J (as he then was) held that the detention of detenu is shown to be under a valid order, previous detention order was immaterial. In the second case a Division Bench of the Baluchistan High Court while relying upon the above Karachi case held that‑the mere fact that the first detention order might be illegal would not render second detention order as illegal, if it was otherwise in accordance with law and that there was no necessity to examine the legality of the first detention order. 111e may also refer to the case of Arbab Muhammad Hashim Khan on behalf of Arbab Abdul Ghafoor Khan and Abdul Wali Khan v. The Crown, reported in P L D 1954 Federal Court 1, in which the Hon'ble Federal Court of Pakistan pointed out distinction between a fresh order of detention and an order of extension of detention and held that a fresh order is not affected by the previous detention having been illegal, whereas an order of extension of an illegal detention will also be illegal. We are inclined to hold that if an earlier detention order or any other order is illegal for want of compliance with certain provision of law, it is open to the competent authority in the absence of any express prohibition to revoke the earlier illegal order and to pass a IB fresh order in accordance with law. In the instant case as observed by us hereinabove that the first order dated 21‑1‑1988 was apparently an illegal order being in conflict with Article 19 of the Constitution, it was open to the respondent to have revoked the above order, and to pass a fresh order.

6. Reverting to the third submission of Mr. Muhammad Faridul Haq that the impugned order is mala fide as by withdrawing the earlier order and by passing fresh order the restriction would operate for more than 90 days, it may be observed that a perusal of the provisions of the Ordinance indicates that a distinction has been made between a detention order and an order of the nature in issue inasmuch as by virtue of section 5‑A no person is liable to be detained for a period exceeding three months unless the Board has reported before the expiration of the said period that there is, in its opinion, sufficient cause for such detention but there is no such provision relating to an order of the nature in issue which has been passed under clause (d) of subsection (1) of section 5 which empowers the Government or the District Magistrate upon being satisfied to prevent any particular person from acting in any manner prejudicial to public safety or public interest or the maintenance of public order and inter alia to order that he shall conduct himself in such a manner or abstain from such acts as may be specified in the order. However, section 20‑A of the Ordinance enjoins the Government that in case where a representation is received by it under subsection (5) of section 5 against an order under clause (a), clause (c), clause (d) or clause (e) to subsection (1) of section 5 and if the order represented against is not rescinded or cancelled and the order is to have effect for a period exceeding three months to forward the case, including the representation to the Board constituted under subsection (5) of section

3. Since the impugned order has been passed under clause (d) of subsection (1) of section 5 upon receipt of the petitioner's representation, the respondent is obliged to make a reference to the Board in terms of above section 20‑A of the Ordinance. Mr. Muhammad Faridul Haq has referred to the following cases in furtherance of his above submission: (i) Dwarcadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. and others reported in A ‑I R 1954 S C 119 in which the Indian Supreme Court while construing Articles 13 and 245 of l the Constitution held that: "In order to decide whether a particular legislation is unconstitutional as offending the provisions of the Constitution it is necessary to examine with some strictness the substance of the legislation for the purpose of determining what it is that the legislature has really done; the Court, when such questions arise, is not overpersuaded by the mere appearance of the legislation. In relation to constitutional prohibitions binding a legislature it is clear that the legislature cannot disobey the prohibitions merely by employing indirect method of achieving exactly the same result. It was further held that in all such cases the Court has to look behind the names, forms and appearances to discover the true character and nature of the legislation." (ii)(ii) Romesh Thappar v. The State of Madras A I R (37) 1950 S C

124. In the above case the Indian Supreme Court while construing the expression "public order" and "public safety" used in Schedule 7 List II Entry 1 of the Indian Constitution held that the former expression is of wide connotation and signifies that state of tranquillity prevailing among the members of a political society as a result of the internal regulations enforced by the Government which they have instituted, and whereas the latter expression ordinarily means security of the public or their freedom from danger and that anything which tends to prevent danger to public health may also be regarded as securing public safety. (iii) Ram Manohar Lohia and others v. State of U.P. and others, A I R 1968 All. 100, in which a Division Bench of the Allahabad High Court while construing the provisions of section 144 Cr.P.C. and Article 19 of the Constitution held that restriction imposed for preventing disturbance of the public tranquillity under section 144, Cr.P.C. are restrictions within the limits of saving provisions of Article 19(2) and Article 19(3) and that the provision of section 144 Cr.P.C. is not ultra vires as it cannot be held to place any unreasonable restriction on rights guaranteed under the above Article. (iv) The Jamath Mosque v. Vakhan Joseph, A I R 1955 Trav‑Co

227. In the above case a Full Bench comprising of three Judges of the Travancore‑Cochin High Court held that the burden of proving the reasonableness of any restriction on fundamental rights will be on those who seek to support the restriction, and that the principles that govern the test of reasonableness are well established and can be summed in the words of the Indian Supreme Court in the case of Chintamanrao v. State of Madhya Pradesh, A I R 1951 S C 118 as follows: "The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond that is required in the interest of the public. The word 'reasonable' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the rights cannot be said to contain the quality of reasonableness and unless if strikes a Proper' balance between the freedom guaranteed in Article 19 (1)(g) arid tire social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality," (v)' Jeshingbhai ]shwarlal v. Emperor A I R (37) 1950 Bomb.

363. A Full Bench of the Bombay High Court while construing Article 19 of the Constitution held that the legislature has been given the power under the proviso to sub‑clause (5) of Article 19 to impose restrictions on the exercise of the rights conferred .under Article 19(1), sub‑clauses (d) and (e) but those restrictions have to be reasonable restrictions and that it is not for the legislature to determine whether the restrictions are reasonable or not but it is for the Court of law to consider the reasonableness of the restrictions imposed upon the rights. (vi) Smt Begum d/o Hussain Saheb Kalawat and another v. The State; reported in A I R 1963 Bomb. 1t. .In the above case a Division Bench of the Bombay High Court while construing the provisions of section 20 of the Suppression of Immoral .,"Traffic in Women and Girls Act 1956 with reference to Article 14 of the Indian Constitution held that the above provision of the Act does not violate Article 14 of the Constitution. It was also held that the question of reasonableness is to be determined judicially by the Court and there is no limit placed upon the power of the Court to consider the mature of the restrictions. On the other hand Mr. Abdul Rahim Kazi, Additional Advocate‑General has referred to the following cases: (i) Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another P L D 1964 S C 673; (ii) Hakam Qureshi, President, District Bar Association, Lahore and 2 others v. The Judges of the Lahore High Court through the Registrar and another P L D 1976 S C

713. In the former case the Hon'ble Supreme Court considered at length with reference to the banning of Janat‑e‑Islami the question of reasonable restriction and pointed out as to how the above question is to he judicially reviewed. Whereas in the latter case the Hon'ble supreme Court while dealing with the case of a contempt of Court pointed out the prohibition contained iii Article 168 of the Constitution. against the discussion in the Parliament with respect to the conduct of any Judge of the Supreme court or of a High Court in the discharge of his duties.

7. From the above‑cited cases, the following principles of law are deducible:‑‑ (i) If a constitutional prohibition as to legislative power is clear, the legislature cannot disobey the same by merely employing indirect method of achieving exactly the same result. (ii) That the expression "reasonable restrictions" used inter alia in the Articles relating to Fundamental Rights connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond that is required in the interest of public. That the use of the word, 'reasonable' implies intelligent care and deliberation, that is, the choice of course which reason dictates. (iv) That the question, whether any restriction is reasonable is to be determined by the Court judicially and not by the legislature. (v) That a restriction imposed under section 144, Cr.P. C. for preventing disturbance of the public tranquillity will be considered as reasonable. (vi) That section 144, Cr.P. C. is not ultra vires of Fundamental Rights. (vii)That the expression "public order" has wide connotation and inter alia signifies that state of tranquillity prevailing among the members of a political society as a result of internal regulations enforced by the Government. It may be observed that it seems to be a settled principle of law that on the question of reasonableness the Court and not the legislature is the arbiter. The respondent has placed the material on record which comprises of certain Press reporting and source reports which indicate that the petitioner had made some statements which might have been misunderstood or misconstrued resulting into creating/ increasing hatred animosity between different ethnic groups. We are inclined to hold that there is nothing on record from which any, male fides can be inferred nor it can be urged that the restriction if it is construed as a restriction is unreasonable.

8. As regards the fourth submission of Mr. Mohammed Faridul Haq that ground ( b) mentioned in the grounds annexed with the impugned order is vague and, therefore, the entire order cannot be sustained, he has invited our attention to the above ground (b) which reads as follows:‑ 11(b)That on 15‑1‑1988 you attended "a reception organised in honour of PPI by Punjab Friends Welfare Federation in Gulshan‑e -Hadeed. You made a speech ors that occasion wherein you mocked at and condemned certain politicians from Punjab for congratulating the leaders of MQM and their statements about Islam and Pakistan. They, according to you, should instead talk about the rights of Punjab.'' Whereas Mr. Abdul Rahim Kazi has invited our attention at page 11 of the material placed before us which is a Press cutting from Urdu Rozanama 'Arran' dated 16‑1‑1988 containing the Press report of the public meeting which was inter alia addressed by the petitioner. It contains reference to certain political leaders. We are inclined to hold that the above ground (b) cannot be said to he vague as it contains the date when the petitioner made the speech and the theme of the speech. Mr. Mohammed Faridul Haq has also referred to the case of Khadeja Bi v. The District Magistrate, Hyderabad 1987 P Cr. L J 2418 and the case of, Mohammed Younus v . Province of Sind through the Secretary to the Government of Sind, Home Department, Sind Secretariat Karachi and 2 others P L D 1973 Kar. 694, in which it was held that if one, ground is vague and is knocked out the order of detention cannot be sustained.

9. Adverting, to the last submission, namely that the provision of the Constitution is to be construed in the manner which should not admit any restriction, it will suffice to observe that the Court while construing a provision of the Constitution relating to the rights of persons will prefer to construe in a manner which will be more beneficial to them. But at the same time any reasonable restriction for the good of the public and the Society provided for in a constitutional provision cannot be ignored or construed in a manner which instead of suppressing mischief encourages ox accelerates mischief . We may observe that constitutional jurisdiction is a' discretionary jurisdiction. It can be pressed into service to foster the cause of ~G justice and for the good of the public and the country at large. It i 's a well‑settled principle of law that even where an impugned order is illegal, the Court may decline to press into service its constitutional H jurisdiction if doing so would instead of advancing the cause of justice or the public good would defeat the same. If an authority is needed the famous case of Nawab Syed Raunaq Ali etc. v . Chief Settlement Commissioner and others reported in P L D 1973 S C 236 may be referred to, in which the Hon'ble Supreme Court of Pakistan held that an order in the nature ‑of writ of certiorari or mandamus is discretionary order. Its object is to foster justice and right a wrong. In the above case it was also held that the High Court acted properly in declining to set aside the order of the Officer on Special Duty even though the same was clearly without jurisdiction as it would have resulted, into restoring an illegal order of the Deputy Claims Commissioner. As observed hereinabove by us that it cannot be denied that unfortunately for quite sometime the Karachi has been subject to ethnic disturbances resulting into loss of lives of quite considerable number of innocent persons and, therefore, the respondent is obliged to take steps/actions which may eliminate/ alleviate the above public menace, which is adversely affecting public order, public safety, the national solidarity and integrity of the country, keeping in view the above facts, the Court will be reluctant to press into service constitutional jurisdiction if it is satisfied that the impugned order is bona fide and is in substance in consonance with the relevant provision of law though there may be some infirmity in the form. In this behalf we may also refer to the following judgments of Division Bench of the Baluchistan High Court in which one of us (Ajmal Mian, J.) was a party: (i) Saaduliah v. Secretary, Home Department acid another, P L D 1986 Quetta 270 in which the following observations were made: "Suffice to observe that the material placed before us indicates that the detenu had links with a foreign country, of which Government is hostile to Pakistan. We may also observe that in a case where State Security is involved, the Court may be reluctant to exercise constitutional writ jurisdiction even in case of detention if the order is bona fide and is supported by the material on record though there might be some infirmity in the order as to the procedure and not as to the substance." (ii) Bahar Khan v. Inspector‑General, Frontier Corps at Quetta and 3 others, P L D 1987 Quetta 13, in which inter a following observations were made: "We may observe that a Court will be slow to interfere with detention case, in which, the impugned order seems to bona fide and the material placed before the Court indicate that the detenu may indulge in the activities prejudicial to t integrity and security of Pakistan." The principles enunciated in the above‑cited observations can extended to a case where the maintenance of public order and t public safety are involved, which in the present case are in fact involved.

10. For the aforesaid reasons, we see no merit in the above petition and, therefore, it is dismissed but there will be no order as to costs. M.Y.H./G‑62/K Petition dismissed.