P L D 2017 Lahore 896 (PLP)

ALI BAQAR NAJAFI, J.

This order shall dispose of the instant appeal as well as Writ Petition No. 8634 of 2011 titled "Nasir Abbas v. District Police Officer, Vehari etc.", seeking the license of 10th Muharram procession as common questions of law and facts are involved in both appeal and writ petition.

2. Through this Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972, the order dated 22.10.2015 passed by learned Single Judge in Chamber has been challenged whereby order dated 02.11.2013 dismissing the request to issue/renew the license of 10th Muharram procession passed by respondent No.1 /Home Secretary was upheld.

3. Brief facts giving rise to the filing of this appeal are that appellant and daughter of late Syed Manzoor Hussain Shah, a licensee of Tazia and Zuljinnah procession of 10th of Muharram who died in the year 2009, applied for taking out the said procession which was allowed and the license was issued to her in the year 2012. However, the procession could not be taken out as respondent No.3/District Police Officer, Vehari made an agreement with her to the extent that the procession would be taken out in the following year. Meanwhile, said license was cancelled by respondent No.1 vide his impugned order dated 27.03.2013 on the application of respondent No.5/a private individual. She then filed W.P. No. 10255 of 2013 which was disposed of on 30.10.2013 by this Court directing respondent No.1/the Home Secretary, Punjab to decide the matter after affording an opportunity of hearing to the parties. But vide impugned order dated 02.11.2013 the respondent No.1 dismissed the request which order was challenged by the appellant before the learned Single Bench in the Constitutional petition. However, the learned Judge in Chamber dismissed the writ petition on the grounds that in view of the Home Secretary/respondent No.1, after the death of Syed Manzoor Hussain Shah, the original licensee, the procession could not be taken out since the residents of the village objected against it and that there was a possibility of a bloodshed if the permission for taking out the procession had been granted in favour of the appellant.

4. Mr. Muhammad Yafis Naveed Hashmi, Advocate, learned counsel for the appellant submits that it is the fundamental right of the appellant to profess religion and taking out of the Muharram procession is the basic part of her religious practice. Adds that respondent No.3/District Police Officer, Vehari is bound to own written commitment as per the agreement between the appellant and the District Police Officer to take out the procession in the following year. Adds that Home Secretary does not figure out anywhere in the scheme of Police Order 2002 and the Police Rules, 1934, therefore, it is the District Police Officer, Vehari who was to decide and give permission to take out the procession.

5. Conversely, learned law officer assisted by learned counsel for respondent No. 5 submits that the reports so far collected from different agencies do not permit the taking out of procession as there was a possibility of bloodshed, therefore, prays for dismissal of appeal.

6. Arguments heard. File perused.

7. After hearing the learned counsel for the petitioner, the respondent No.5 and the learned law officer, it is straightway observed that in the present case the question is as to when a permission to take out the religious procession can be granted by the District Administration with the background of Article 20 of the Constitution which is reproduced as under:

20. Freedom to profess religion and to manage religious institutions. Subject to law, public order and morality,- (a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions. Before, the promulgation of Police Order, 2002, sections 30 and 30A of the Police Act, 1861 dealt with the issuance of license to take out the religious procession. Sections 30 and 30A of the Police Act, 1861 are reproduced as under:- [

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 the 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 persons 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 this judgment, 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 license. (3) On such application being made, he may issue a license 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 license. Music in the streets. (4) He may also regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies.] [30A. Powers with regard to assemblies and processions violating conditions of license.- (1) A District Superintendent of Police or Assistant District Superintendent of Police or Inspector of Police or any police-officer in charge of a station may stop any procession which violates the conditions of a license granted under the last foregoing section, and may order it or any assembly which violates any such conditions as aforesaid to disperse. (2) Any procession or assembly which neglects or refuses to obey any order given under the last preceding subsection shall be deemed to be an unlawful assembly.] Under Articles 120 and 121 of the Police Order, 2002, it is prescribed that Head of the District Police or Assistant or Deputy Superintendent of Police may regulate the conduct of procession and assemblies on the public roads and even give the route and the time for such procession. However, if he is satisfied that such procession, if uncontrolled, may cause a breach of peace, the person who intends to take out the procession shall apply for the license. It is the duty of such police officer to issue a license specifying the name of that licensee, with conditions on which procession could be taken out with reference to time and route. Under Article 121, the said Police Officer may stop such procession only it violates such conditions may order it to dispense. However, if the procession neglects such order will be deemed to be an unlawful assembly. Articles 120 and 121 are reproduced as under:-

120. Regulation of public assemblies and processions and licensing of same.

(1) Head of District Police or Assistant or Deputy Superintendent of Police may as occasion require, direct the conduct of assemblies and processions on public roads, or in 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 persons or class of persons to convene or collect any assembly in any such road, street or thoroughfare, or to form a procession which would, in his judgment, 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 processions shall apply for a license. (3) On such application being made, he may issue a license 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 Article: Provided that no fee shall be charged on the application for, or grant of any such license.

121. Powers with regard to assemblies and processions violating the conditions of license.

(1) Head of District Police or Assistant or Deputy Superintendent of Police or Inspector of police or an officer in-charge of a police station may stop any procession which violates the conditions of a license granted under the last foregoing Article, and may order it or any assembly which violates any such conditions as aforesaid to disperse. (2) Any procession or assembly, which neglects or refuses to obey any order given under clause (1) shall be deemed to be an unlawful assembly.

8. Before further discussing the subject, here it would be expedient and therefore, enlightening to scan out the relevant case law of our jurisdiction on the subject. Before we do that, the standard meaning of word Procession as given in Oxford Dictionary is to be understood:- The action of moving forward in an orderly way, or 'the fully robed civic dignitaries walk in procession' 2Theology, calling it is the emanation of the Holy Spirit. It also means a line of people or vehicles that move along slowly, especially as part of a ceremony; the act of moving in this way a funeral procession a torchlight procession. Groups of unemployed people from all over the country marched in procession to the capital. In Oxford Collocations Dictionary, it may be a number of people who come one after the other like a procession of waiters appeared bearing trays of food. The above definitions clearly show that an orderly physical movement by people with a community of object are the pre-requisites of a procession. In our jurisdiction, the first judgment on the subject to take out religious procession is Hakim Sher Ahmad Chishti v. Syed Abbas and 2 others (PLD 1976 Lahore 85), in which it was held that taking of the procession cannot be outrightly barred. Para 15 is reproduced as under:- "

15. Now I may sum up the principles which are clear from these authorities. These principles are that members of a religious sect have a right to take out processions provided they do not infringe the legal rights of others. This right is subject to the provisions of different laws. Section 30 only empowers some Police Officers to regulate the conduct of procession and in case of apprehension of breach of peace which must have the sanction of a Magistrate, to ask the promoters of the procession to take a licence. In rare cases the licence may be refused but that refusal cannot be permanent but can only be for a particular occasion since no general order can be passed under this section calling upon the members of the public to take a licence before taking out a procession. Unless called upon by the Superintendent of Police or the Assistant Superintendent of Police to obtain a licence in view of the circumstances prevailing as enumerated in subsection (2) of section 30, the Organisers of a procession have no obligation to submit any application for permission or licence. The Police is required to be vigilant in finding out the programme of processions being taken out and to act of its own under subsection (1) of section 30 on receipt of such information. But the law does not imply the necessity of making any application to the Police for invoking the regulation of the procession on the part of the citizens". A license is required on the new route of the procession as held in para 16 of the above cited case law which is reproduced as under:- ".....The form shown to me by the learned counsel for the Government proves that it is a licence issued under section 30 of the Act. It is also admitted that the licensing authority is the Superintendent of Police. In view of this, rule 21.22 cannot be read as creating an obligation on the part of a citizen to apply for a licence before taking out procession. Sub-rule (1) only places an embargo upon the use by a procession of new routes without sanction of the District Magistrate where the route for a procession is already sanctioned. 1, therefore, agree with the finding of the learned District Judge that no licence is necessary to be obtained from the District Magistrate. In view of this interpretation of rule 21.22, in my view the condition imposed by the learned trial Court which is similar to one imposed by the Privy Council in Saiyid Manzur Hassan and others v. Muhammad Zaman and others should not have been deleted." The issuance of license can be refused rarely under exceptional circumstances. This view was also given in Mian Muhammad v. Government of West Pakistan and another (1970 SCMR 645), by the Supreme Court the relevant extract of which is reproduced as under:- "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...." While deciding about the grant or refusal of procession, the authority would be guided by following principles that authority would refrain from dealing it arbitrarily and capriciously as laid down in Muhammad Aslam alias Muhammad Mehdi v. District Magistrate, Gujrat and another (1980 PCr.LJ 707), para 9 is reproduced as under:-

9. Thus none of the above cases help the petitioner. It is quite clear that the respondents could even restrain the petitioner if the law and order situation so warranted. However, the only restriction on the power of the respondents is, to apply their mind and abstain from dealing with the case arbitrarily or capriciously...." In Muhammad Hussain Bhatti v. District Magistrate, Gujrat (1985 PCr.LJ 301), it was held that route falling in the area predominantly of residents of the followers of another sect, or an incident happened much before the application for taking out procession, will not debar the issuance of license. Paras 'a' and 'b' at page 305 is reproduced as under:- "In the instant case there is nothing on the record to show that the petitioner in moving application for the third time, for the grant of licence to take out procession for participating in a religious ceremony or observance has acted mala fide or for some ulterior motive or for such purpose manifestly established in that behalf. Para. 5 of his application rather indicates that he has undertaken to abide by the regulatory conditions imposed by the administration on the conduct of the procession " "...... The mere fact that the route which the procession has to follow as predominantly occupied by Sunnis opposed to the taking out of procession does not empower the District Magistrate to refuse grant of licence to the petitioner......" "The mishap referred by the learned Assistant Advocate-General regarding the death of a Sikh police officer occurred over a period of three decades, earlier can hardly be pressed into service for entertaining reasonable apprehension leading to breach of peace after such a long time." In Sharafat Hussain v. Deputy Commissioner, Kasur and another (1983 PCr.LJ 1485), it was again held that there can be no outright ban on taking of procession. Para 'B' is reproduced as under:- "..... (1). However, if in the opinion of the Magistrate of the District or of a sub-division of the District a procession, if uncontrolled, is likely to cause breach of the peace, the Superintendent of Police or the Assistant Superintendent of Police can require by a general or special notice that the persons intending to take out a procession should apply for licence. While issuing the licence the Superintendent of Police or the Assistant Superintendent of Police can inter alia lay down certain conditions. It will thus be seen that ordinarily no licence is required for taking out a procession. A licence becomes necessary only when the Superintendent of Police or the Assistant Superintendent of Police has issued a general or a special notice in this regard; further before the Superintendent of Police or the Assistant Superintendent of Police can issue such a notice there must be in existence a decision of the Magistrate of the District or of the sub-division that the procession if uncontrolled is likely to cause a breach of peace. In the present case so far the Magistrate of the District or of the sub-division has not formed any such opinion. Similarly there is no notice either general or special in existence requiring the petitioner to apply for a licence. The application made by the petitioner before the District Magistrate for the issuance of the licence was therefore an exercise in futility. Accordingly I would dismiss this application but make no order as to costs." The right to take out procession was duly upheld by the Supreme Court in Syed Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others (PLD 1983 Supreme Court 172), wherein it was held that:- "....... The general right of the public to assemble and take out processions on 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 licence. 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........" This view was followed in Kaneez Fatima v. District Magistrate, Sialkot and others (1985 PCr.LJ 2707), in Dr. Muhammad Bashir and another v. District Magistrate Lahore and 2 others (1988 MLD 1400) and in Syed Tausif Hussain Shah and others v. District Magistrate, Chakwal and others (2000 MLD 199), holding that for such occasion, an application, for issuance of new license is to be filed. Para 3 at page 1401 of Muhammad Bashir's case is reproduced as under:- "

3. From the applications moved by the petitioners as also from the tenor of the order passed by the District Magistrate impugned herein, it is quite clear that the petitioners applied for grant of licence to take out 'Alam' procession during the Muharram falling in the year 1984 and the applications were also refused for that particular year. That being so, writ petitions have become infructuous with the lapse of time. Both the writ petitions are accordingly dismissed with the observation that the petitioners, if so advised, may file a fresh application for the grant of requisite licence which application, if filed, shall be finally decided by the competent authority within one month of the application being moved. No order as to costs." In Malik Ghulam Yusaf v. District Magistrate, Attock (1995 MLD 1510), it was held that for the enforcement of a fundamental right through writ jurisdiction a hot-headed person of a different sect cannot create hurdle. Relevant extract of page 1514 is reproduced as under:- "...... To accept the proposition that the operation of fundamental right to profess or practise any religion is dependent upon the objection of a hot-head of a different religion or sect would make the fundamental right entirely a illusory without any substance. Therefore, we see considerable force in the argument that the permission to the petitioner to take out processions was refused rather lightly without taking into consideration that the permission was sought in relation to the performance of what is accepted by common consent as religious rite among, Shia Muslims, and which is guaranteed by the Constitution. "....... It cannot be gainsaid that the whole object of the writ petition is a vindication of the Fundamental Right guaranteed by the Constitution, which in its very nature is of a recurring character. If the refusal of the Executive Authorities is allowed to go unchallenged or is not declared invalid by an appreciate declaration then it may well-result in the perpetuation of the denial of this right in relation to the years to come." In Muhammad Siddique v. District Magistrate, Lahore and 3 others (1997 MLD 588), it was held that Muharram procession could be taken out subject to condition to maintain law and order. Para 5 is reproduced as under:- "

5. In the present case, the petitioner seeks permission to take out procession only for one day i.e. on 30th of Moharram or first of Safar after Maghrib prayer till Isha time, which request in the circumstances narrated above cannot be said to be mala fide or for some ulterior motive. The petitioner undertakes that the procession shall be taken out as per route mentioned in Annexure B appended with the petition and shall be taken out at the timings to be regulated by the District Magistrate and shall be peaceful." "For the foregoing reasons, the refusal of the District Magistrate to permit the petitioner to take out procession is not tenable in law and is declared to be without any lawful authority and of no legal effect and in consequence, the petition is accepted and the petitioner is permitted to take out the religious procession from Azakhana 31-A, Rehmanpura, Lahore to Majlis-ul-Hussain at Imam Bara Road after Maghrib prayer till Isha time on 30th of Moharram or first of Safar, subject to the conditions, as may be imposed by the District Magistrate for the maintenance of law and order situation." In Syed Manzoor Hussain Shah v. Government of N.-W.F.P. through Collector Dera Ismail Khan and others (2005 SCMR 995), it was held that Police Authorities would remain normal and proceed even handedly while dealing on application for grant of procession under section 30 of the Police Act, 1861 or under amended law pari materia to the said Act. Relevant extract of para 5 is reproduced as under:- "....... 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 materia to the said Act, the Superintendent of Police, D. I. Khan shall remain even-handed and proceed strictly as mandated in law."

9. After scanning the relevant statutory provisions and law the following legal points are amply clear:- (a) Under Article 120 of the Police Order, 2002 it is the head of District Police or Assistant or Deputy Superintendent of Police who is empowered to issue or refuse the license for the Muharram procession. (b) The corresponding Section 30(a) of the Police Rules, 1934 or the whole scheme of law does not figure out the Home Secretary as competent authority to grant or refuse such license. (c) Less population of a particular sect does not debar it from indulging into lawful religious practices as it is the responsibility of the State to protect enforcement of fundamental right under Article 20 of the Constitution, but obviously, as long as they do not infringe into the rights of other communities. (d) In rare cases the license may be refused but that refusal cannot be permanent and will be only for that particular occasion. (e) The police is required to be vigilant in finding out the programme of procession being taken out. (f) The requirement of license is for procession on new routes. (g) The authorities while dealing with such applications shall apply their mind and abstain from dealing with case arbitrarily or capriciously and shall remain even handed strictly as mandated by law. (h) As a requirement to take out the procession, licensee, the organizer, the manager, the leader, can be identified with a view to prescribe route, timing, halting places, the accompaniments and the conduct of the procession itself only with the sole object of avoiding breach of peace.

10. In the present case, the impugned order was passed by Home Secretary which is based on the report and opinion of the District Police Officer, Vehari but he cannot assume the jurisdiction of District Police Officer under Articles 120 and 121 of the Police Order, 2002. However, we are mindful of the fact that under the law license has to be renewed every year on the basis of the application presented to the District Police Officer. We are also conscious of the fact that earlier license has already been renewed in favour of the appellant and that this is not the first time that issuance or renewal of license of procession was requested. It is not denied that until 2009, said procession was being actually taken out. Besides, the impugned order passed by the Home Secretary does not mention the agreement dated 21.11.2012 which is electronically scanned as under: It was also incorrectly mentioned in the impugned order of respondent No.1 that it was a traditional procession as the fact reveals that for all intents and purposes it was a licensed procession. The other reasons advanced by respondent No.1 is that the appellant being the daughter of Syed Manzoor Husain Shah could not inherit the right of taking out procession and that she did not own any land in the area. However, it is not mandatory that a licensee must possess a certain property for taking out the procession since it is the consent of the owner of the property which is required to carry out procession from his place. Even otherwise, participants of a procession walk on the public roads and streets, therefore, the ownership of any property for issuance of the license would be meaningless. It is also worth mentioning that nowhere in the scheme of Personal Law a daughter is debarred from being substituted as a licensee provided her male family members are capable of fulfilling this responsibility.

11. We may mention here that time is changing very rapidly and with the rise of education and awareness the level of tolerance in our society is increasing though at a very slow pace. Any single untoward incident may not create a permanent embargo in publically taking out the religious procession if the situation had significantly improved.

12. For what has been discussed above, we are of the firm view that order of the Home Secretary/respondent No.1 is not sustainable as it was passed without lawful authority and of no legal effect being against the scheme of Police Order, 2002. This appeal and the writ petition are, therefore allowed and the impugned order dated 22.10.2015 is hereby set aside. Resultantly, appellant may file an application for issuance of license before the District Police Officer, Vehari afresh and if such an application is made, the same will be decided by the District Police Officer, Vehari in accordance with law and in view of the observation made above. MWA/F-22/L Order accordingly.