2000 PLP 2655 (YLR)

Ainuddin Khan, Addl. A.‑G for Respondents Nos. 2, 3 and

4. Dates of hearing 21st and 22nd September, 1999. S. A. RABBANI, J.‑‑‑Petitioner No.l is a registered company incorporated under the Companies Ordinance, 1984 and is dealing with the business of security services. Petitioners Nos.2 and 3 are the persons running business of this company. The petitioner's case is that they employ mostly ex‑army personnel who carry arm licence issued in their names and the company supply watchmen and security guards to various organisations on payment for their services.

2. The respondents found that ' the petitioners were running this business without obtaining no‑objection certificate from the respondents and, therefore, respondent No.4, under the instructions of the other respondents, sealed the office of the company. The petitioners, therefore, filed this petition that the impugned directive/order/ action issued/passed by the respondents is violative of the .Fundamental rights, illegal, void, without any lawful authority and of no legal effect. They also prayed for suspension of operation of impugned order.

3. The petitioners also seek declaration that their trade and business of private security agency is lawful and not forbidden by any law and that the business is not subjected to any licensing system nor any permit or NOC is required under any law, and neither Federal nor Provincial Government, in any manner control or regulate the said business under any law.

4. Comments have been tiled by the Federal Government as well as Provincial Government on behalf of the respondents. The case of Federal Government, according to the comments and written statement tiled on their behalf, is that according to instructions issued by this respondent vide Letter No.7/33/87‑Arms, dated 5‑9‑1988 and No.7/39/88‑Arms, dated 30‑10‑1988, the petitioners were to obtain necessary permission from the Federal Government, as well as from the Provincial Government, before establishment of such a business, and since such permission was not obtained by the petitioners, their business is illegal. They have mentioned that a number of security companies are operating with the permission of the Government. They claim that instructions issued under plenary powers of the Government have force of law and all the citizens are to follow the orders issued by the Government under executive powers conferred upon them. They say that this respondent has initiated action against all those companies, which are working without proper NOC. This respondent has also referred to the (Private) Military Organisations (Abolition and Prohibition) Act, 1974. They say that (private) military organisations are prohibited under the Constitution.

5. Similar stand has been taken by respondents Nos. 2 and 3, the Provincial Government, and District Magistrate, Karachi East in their comments. They say that SDM acted legally on the directives of the Government of Sindh, Home Department and since the petitioner had no licence, the office was sealed.

6. Mr. Yousuf Molvi, learned counsel for the petitioner contended that under Article 4 of the Constitution, the petitioners are entitled to enjoy protection of law, and to be treated in accordance with law, and under Article 18, they have a right to enter upon any lawful profession, business or trade. According to him, the business or security agencies is not forbidden by any law, and since no law requires the petitioners, to obtain permission or no‑objection certificate from any authority, the respondents cannot lawfully demand that the petitioners should obtain such permission or NOC before establishment of such business. He however, submitted that since there was such a demand, the petitioners applied for it, but it was not issued. In support of his contentions, Mr. Yousuf Molvi cited the following cases: (1) Haji Ghulam Sabir v. Pan Allotment Committee and another (PLD 1967 Dacca 607); (2) Haji Ghulam Zamin and another v. A.B. Khoudhkar and others (PLD 1965 Dacca 156); (3) Humera Satwal Yousuf v Government of Punjab (PLD 1971 Lahore 641); (4) Anjum Jawia Tohedia (Regd.), Sheikhupura v. Deputy Commissioner/ D.M., Sheikhupura (1990 MLD 1468 (Lahore)); (5) M/s. Murree Brewery Co. Ltd. v. D.G. Excise & Taxation and others (1981 MLD 267 (Lahore)); (6) Riaz Ahmed v. The Regional Transport Authority, Multan and others (1992 MLD 1882 (Lahore)).

7. Syed Tariq Ali, learned Standing Counsel appearing for respondent No. l submitted that his arguments are same as have already presented before the Court in the written statement of this respondent. Mr.Ainuddin Khan, learned Addl. A.‑G. appearing for respondents Nos.2 to 4, has referred to Article 5 of the Constitution and further argued that the Government can take action against petitioners under the (Private) Military Organisations (Abolition and Prohibition) Act, 1974.

8. Thus, there is no claim of the respondents that any Federal or Provincial law has been enacted to control or regulate the business of private security agencies.

9. In written statement, as well as comments tiled on behalf of respondent No. l it has been asserted that no body is allowed to raise its own arms, and the (Private) Military Organisations (Abolition and Prohibition) Act, 1974, has been quoted as the prohibitive law. The prohibition is basically provided in Article 256 of the Constitution. This Article provides that "no (private) organisation capable of functioning as a military organisation shall be formed, and any such organisation shall be illegal". The prohibition is exhaustive and absolute and leaves no scope for existence of any (Private) military organisation with the N.O.C. or permission of the Government or any authority. Any permission or N.O.C. issued by the Government to establish such an organisation would be in violation of Article 256 of the Constitution.

10. If such (private) security agencies are treated as (Private) military organisation, no N.O.C. or permission issued by the Government or any other authority can legalise their existence. The respondents have stated that they have issued permission and N.O.C. to many other (private) security agencies. It means that either such N.O.C. and permission has been issued in violation of the Constitutional prohibition, or such agencies are not covered by the definition of (private) military organisation. It may be assumed that the permission has been issued by the Government because these organisations have not been treated as (Private) military organisation, and reference of the (Private) Military Organisations (Abolition and Prohibition) Act, 1974, is therefore. misconceived.

11. The case of respondent No. l (Pakistan through Secretary, Ministry of Interior, Government of Pakistan) has been represented by a Section Officer of Interior Division, who has tiled comments and written statement on their behalf. These documents do not mention that they were prepared and tiled with the authority or approval of the Secretary or other top authorities. They reflect an incorrect, detrimental, and dangerous attitude and disposition that executive instructions may be a substitute of law. It has been stated, in the written statement, that "according to Article 5 of the Constitution, obedience to law is inviolable duty of every person, and the law as defined by the superior Courts includes the instructions issued under plenary powers of Government".

12. There is a Constitution in the country and all official powers and authority emerge from it. In the Constitution, there is no concept of "plenary powers of Government". The Objectives Resolution, which was adopted as preamble to the Constitution, and which is now its substantive part by virtue of insertion of Article 2A, gives the basis. According to it, the State shall exercise its powers and authority through the chosen representatives of the people. Under the scheme of the Constitution, the mode of exercise of these powers and authority is law‑making. Every organ of the Government and the functionaries have only those powers which the chosen representatives of the people delegate to them by way of legislation. As observed in the case of Haji Ghulam Zamin and another v. A.B. Khondkar and others (PLD 1965 Dacca 156), there is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of all powers and duty. Same principle was repeated in the case of Haji Ghulam Sabir v. Pan Allotment Committee and another (PLD 1967 Dacca 607). Although, these rulings were with reference to the Constitution of Pakistan, 1962, but they apply in the scheme of the present Constitution also. As a matter of fact, this ' is universally recognised, by all democratic polities.

13. Article 5 of the Constitution describes loyalty to the State as basic duty of every citizen. It also enjoins obedience to the Constitution and law. We often don't distinguish 'State' from 'Government' and there is a tendency to replace or add words to misuse legal provisions, as has been done in the written statement of respondent No. l in this case. While referring to Article 5 of the Constitution, the Section Officer added that all the citizens are to follow the laws "and orders issued by the Government Agencies/Authorities Local Administration under executive powers conferred upon them". Article 5 nowhere mentions such orders.

14. Article 18 of the Constitution gives a right to every citizen to enter upon any lawful profession or occupation and to conduct any lawful trade or business. A profession or business is lawful unless a law forbids it or declares it unlawful. This choice of a citizen is, however, subject to qualification, if any, prescribed by law. The Article permits regulation of any trade or profession by, a licensing system, or regulation of trade, commerce or industry in the interest of free competition therein. This regulation, obviously, needs a law to determine the authority, mode, extent etc. Without such law, no authority, mode, extent etc. Without such law, no authority, body or department can arbitrarily assume these functions and powers. Neither any law prohibits the business of (private) security agencies, which are not being treated as (private) military organisations, as explained above, nor any law has been made to regulate this business. The respondents have, therefore, no legal authority to interfere with the business of the petitioner in the manner they have done so.

15. Copy of D.O. No.7 33 87‑Arms, dated 5th September, 1988, purported to hay c been addressed, secretly, by the Ministry of Interior, Government of Pakistan to the Provincial Chief Secretaries and Secretaries to all Ministries/Divisions, has been filed by respondent No.

1. This letter communicates the procedure and authority to regulate this business. It mentions that it was decided by the Federal Government, but it did not mention the law under which the Federal Government exercised this power. The decision lacks legal sanction.

16. Since this matter has not been taken very seriously on behalf of the respondents, ;t has not been specifically contended that the said decision was made on the authority of Rules of Business, 1973 of the Federal Government but it seems that the, decision was made on the assumption that said Rules of business empower the Ministry to take this decision. These Rules have been treated under Article 99 of the Constitution, and Article itself clearly, states that they shall he "for the allocation and transaction of the business of the Federal Government" of course, these Rules have a higher status than or ordinary delegated legislation, because they have been made on the authority of the Constitution itself, but they cannot substitute an Act of Parliament or Law to determine or affect the rights and duties of tile citizens Where a law assigns a function or confers a power on the Federal Government, the Rules of Business merely prescribe as to which of the Ministries or Divisions shall perform those functions and exercise those powers, and in what manner. These Rules cannot, therefore, be used to lay down the limitations, requirements and mode, as done in this case, which can only be done by enactment. In the case of M/s. Murree Brewery Co. Ltd. v. D.G. Excise and Taxation and others (1991 MLD 267 (Lahore)) also, a view was expressed that the licensing system contemplated in Article 18 of the Constitution should be under some law.

17. For the reasons and circumstances mentioned above, the petition is allowed and it is declared that the decision and instructions communicated through D.O. No.' 7/33/87‑Arms, dated 5th September, 1988 by Ministry of Interior, Government of Pakistan, and the action taken against the petitioners in pursuance thereof were illegal, without lawful authority and of no legal effect. The respondents are directed to deseal the office of the petitioners and allow them to carry on the business unless there is a violation of a law. No order as to costs. Q.M.H./M‑.A.K./M‑78/K Petition allowed.