P L D 2011 Karachi 99 (PLP)

GULZAR AHMED, J.

By this petition, petitioner seeks direction for registration of F.I.R.

2. Learned counsel for petitioner has contended that the petitioner has applied to the Ex-Officio Justice of Peace for registration of F.I.R., who has disallowed such application and that order disallowing petitioner's request was not legally justifiable and in support of his submissions has relied upon the cases of Muhammad Bashir v. Station House Officer (PLD 2007 SC 539) and Naseem Ahmed v. District and Sessions Judge (PLD 2005 Karachi 285).

3. We have considered the submissions of learned counsel.

4. It seems that petitioner lives in a house built on plot of land on which 20 storey commercial building is proposed to be constructed. Such plot happens to be adjacent or near about Karachi Grammar School. The construction of such commercial building is being opposed by Karachi Grammar School, its students and their parents. A demonstration against such construction was held on 12-10-2010 in which as alleged by learned counsel for the petitioner the Principal of the school, students and their parents participated and that such demonstration was held in front of main gate of petitioner's house and it is alleged that it was a mob chanting slogans and using derogatory language. An application under section 22-A read with section 25, Cr.P.C. for registration of case against the Principal of Karachi Grammar School, his associates and accomplice and police officials under sections 341, 347, 440, 441, 447, 506, 144, 145, 148 and 149, P.P.C. read with sections 6/7 of Anti-Terrorism Act, 1997 was filed. Through order dated 25-10-2010 learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi- South dismissed such application.

5. It appears that the principal, students and their parents of Karachi Grammar School were demonstrating against proposed construction of commercial high-rise building adjacent or near about the said school. Such demonstration appears to have taken place on a public road in front of the house of petitioner where the commercial high-rise building is proposed to be constructed. The right to hold demonstration is conferred on every citizen as a fundamental right under Article 16 of the Constitution, which provides that every citizen shall have the right to assemble peacefully and without arms subject to any reasonable restrictions imposed by the law in the interest of public order. Holding of demonstration and freedom of assembly is an essential element in a democratic setup. Such right has to be construed liberally and is to be given full effect until a reasonable restriction on it is imposed by law in the interest of public order. Such sacred and inalienable right cannot be abridged or restricted nor can it be allowed to be construed or termed as an offence of unlawful assembly. A guaranteed right under the Constitution cannot be translated as a crime as mere apprehension or fear in the mind of a citizen of such right being labelled as crime will amount to negation and denial of such right weakening the concept of civil liberty, freedom of expression, freedom of assembly etc. and erode the institution of democracy. The exercise of fundamental right by the citizen cannot justifiably be made ground for registering of-F.I.R. against them.

6. In the cited judgment Muhammad Bashir (supra) it is not laid down by Hon'ble Supreme Court that in all circumstances, the High Court is required to give directions for registration of F.I.R. rather it is noted that exercise of discretion under Article 199 of the Constitution was not dependent on an illegality committed by a competent authority but was also controlled by some other important considerations such as the seeker of a writ being an aggrieved person, availability of alternative remedies such as filing of a complaint etc. and the applicant being qualified in equity for grant of relief sought. Such being the legal position and we having come to the conclusion that it was case of demonstration and freedom of assembly in terms of Article 16 of the Constitution, therefore, we find no merit in this petition.

7. After hearing the learned counsel, by a short order passed on 8-11-2010, the petition was dismissed. Above are the reasons for the same. A.R.K./N-57/K Petition dismissed.