2001 P Cr (PLP)

7. The main thrust of the arguments of learned counsel for the appellants was that the learned Single Judge had placed too much of reliance on the reports mentioned by him in his findings and also on the opinion of our learned brother Iftikhar Ahmad Cheema, .J. (as his Lordship then was) about the prevailing tension in the village of whom he had acquired knowledge when he was the learned District and Sessions Judge, Chakwal. It was said that the case of the appellants was not discussed threadbare and their valuable rights reflected in Article 20 of the Constitution of Islamic Republic of Pakistan, 1973, were, therefore, not protected.

8. It appears that the followers of Fiqah‑e‑Jaffaria belonging to village Dhaular had been recurringly making applications close to 14 Safar each year for the purposes of taking out this Alam procession and it further appears that whenever this permission was refused, they had to agitate their case before this Court for appropriate orders in this connection.

9. One such order is dated 25‑6‑1996 which was passed by our learned brother now Chief Justice Falak Sher, J., who admitted Writ Petition No.915 of 1996 to regular hearing with the following observations:‑‑ Therefore, admitting the petition to regular hearing operation of the impugned order is suspended subject to notice; and the respondents are required to make arrangements for providing safe escort of the requisite procession seeking reinforcement of the administrative machinery if wanting. The writ petition however, was disposed of on 21‑4‑1998 having become infructuous.

10. While submitting parawise comments to the writ petition the District Magistrate, Chakwal had justified his action of refusing the permission. According to the District Magistrate, there was every likelihood of breach of peace and clashes between the sects. But it appears from his report that processions on 14th Safar had been emanating in the past from one part of the street to the other in this village whether on account of Court permission or otherwise

11. The main arguments of learned counsel for the appellants were that this permission cannot be withheld merely on the touchstone of breach of peace as the administration was under a bounden duty to maintain peace, While observing the dictates of the Constitution allowing religious freedom to all‑citizens. Reliance in this connection is placed on Syed Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others PLD 1983 SC 172, Syed Abdur Rehman Shah v. Superintendent of Police, Mansehra and others PLf 1999 Pesh. 9C(D.B.), Malik Ghulam Yousaf v. District Magistrate, Attock 1995 PLR 196 (Pesh.), Muhammad Jalil Khan and others v. Ram Nath Katua and others AIR 1931 All. 341 and I.C.A. No.205 of 1996, decided on 13th May; 1999 (Lahore).

12. The learned A.A. ‑G. kept on reiterating that there was likelihood of breach of peace while he justified the refusal order.

13. Section 30 of the Police Act, 1861 regulates processions and the licensing of the same. It reads as follows:‑‑ Regulation of public assemblies and processions and licensing of same.‑‑‑ (1) The District Superintendent or Assistant 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 person or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form procession which would, in the judgment of the Magistrate of the District, or of the Sub‑Division of a District, if uncontrolled, be likely to cause a breach of 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 licence. (3) On such application being made, he may issue a licence specifying the names of the licences 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 licence. (4) Music in the streets.‑‑‑ He may also regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies.

14. The amendment was brought in section 30 of the Police Act vide the Punjab Ordinance VIII of 1984, which added a proviso to section 30 in the following words:‑‑ Provided further that he shall refuse to grant a licence in a case in which the Magistrate of the District or of the Sub‑Division of a District is satisfied and conveys such satisfaction to him in writing that the grant of the licence is likely to cause a breach of the peace or to be prejudicial to the public safety or public interest or the maintenance of public order.

15. Article 20 of the Constitution of Islamic Republic of Pakistan, 1973. reads as follows:‑‑ "Freedom of profess religion and to manage religious institutions.‑‑ Subject to law, public order and morality‑‑‑ (a) every citizen shall have the right to profess, practice 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.

16. Of course, law cannot restrict the freedom of conscience and belief and to act according to such belief and it guarantees both. Whereas, the freedom to believe is absolute but, the second has been subjected to regulation for the protection of the society. It requires that freedom to act should have an appropriate definition to preserve the enforcement of that protection. Thus, the right of the appellants to act is not absolute but has to be under the subjugation of a regulation for the protection of a society. However, the power to regulate has to be exercised in such a way that it does not infringe the protected freedom. A State while acting through its local ' authority can, therefore, by general and non‑discriminatory legislation order regulating the times, the places and the manner for such processions while keeping in view the required safeguards for the peace and good order. While also taking care that the Constitutional rights guaranteeing liberties were not invaded. Therefore, the outward expressions of the religious beliefs are to be subjugated to the ordinary law in such a way that on one hand the Constitutional guarantees are observed and on the other hand there is no threat to any disorder.

17. The Courts are, therefore, called upon to judicially review whether the act of the State conforms to the fine balance of rights and responsibilities 8 in this connection and this is what we are reviewing today. As we see section 30(2) of the Police Act, we see that it speaks of a judgment which a District Magistrate etc. has to make with respect to the intention of a person for taking out a procession and this judgment has to be made after a proper factual inquiry which satisfies the Magistrate of the District etc., not because of any subjective approach but because of objective reasoning that there was an actual likelihood of a breach of peace of a magnitude which may take things out of control of the local administration. His judgment is not to be illusory, whimsical and a figment of imagination.

18. Religious intolerance amongst the various sects of Islam is now a matter of great public concern as we see a phenomenal rise in cases of sectarian terrorism. The State is doing its best to curb these trends. The Holy Qur'an provides that all Muslims constitute a single brotherhood. The relevant portions of the Holy Qur'an are reproduced below:‑‑ "Hold fast, all of you together, to the rope of Allah and do not separate. (Ill. 103). "Be not like those who are divided among themselves and fall into disputations after receiving clear signs. For them is a dreadful penalty." (III.105). "As for those who divide their religion and break up into sects you have no part in them in the least; their affair is with Allah. He will in the end tell them the truth of all that they did." (VI.159). "Dispute not with one another lest you falter and your strength departs from you. Be steadfast and remain united." (VIII.46). "Verily, this brotherhood of yours is a single brotherhood. Do not cut off your affair of unity. All have to return to Allah." (XXI.92 93). "People have cut off their affair of unity between them into sects; each party rejoicing with that which is with itself." (XXIII.55). "Do not be of those who split up their religion and become mere sects, each party holding to that which is with it." (XXX.32). "and if at any time, an incitement to discord is made to you by the Evil One, seek refuge in God." (XLI.36). "Those who fall into sects in disagreement are wrong‑doers and woe to them." (XLIII.65). "We granted them clear signs in matters of religion, but after knowledge had been granted to them they fell into schisms through insolent envy among themselves. Verily, Allah will judge between them on the Day of Judgment as to those matters in which they set up differences." (XLV. 17). "The believers are nothing else than brothers (in Islamic religion). So make reconciliation between your brothers, and fear Allah, that you may receive mercy." (Surah Al‑Hujrat Ayat 10).

19. Islam is not only an enlightened religion but is also a sophisticated religion where people are supposed to be polite, descent, low in their speech and humble in manners. In this connection, reference may be made to Surah Luqman. In Surah Az‑Zumar Ayat 22, Allah's words defining a Muslim are:‑‑ Is he whose breast Allah has opened to Islam, so that he is in light from His Lord (as he who is a non‑Muslim)? So woe to those whose hearts are hardened against remembrance of Allah! They are in plainerror

20. But the question is as to why is there so much of tension with respect to beliefs in different Fiqahs. An answer lies in spreading the message of Allah in its true spirit and through an easy language to the teeming millions so that the believers are inspired by the words of the Almighty both in the case of Ibadaat and Moamlaad they keep themselves away from those who may be spreading discard and mischief. One such institution at the National level who can perform this function is of course the Ministry of Hajj and Religious Affairs, whose inter alia duties ought to be to create harmony between different schisms.

21. Anyhow we find that letter dated 14‑3‑2000 of the District Magistrate, Chakwal appears to be based on mere reports and it perfunctorily intends disposing of the application seeking permission for taking out the Alam procession. It seems that the District Magistrate had not seriously appreciated the rights guaranteed by Article 20 of the Constitution of Islamic Republic of Pakistan, 1973 otherwise, he would have justified his order of G refusal by showing his personal satisfaction based on his visit to the area and against facts, he may have gathered for arriving at a judgment as required by section 30(2) of the Police Act, 1861. We may reiterate that the rights guaranteed by the Constitution cannot be taken so lightly and a justification through a speaking order can only satisfy a judicial conscience that an outward expression of religious beliefs if allowed in this case on 14 Safar would definitely result in a law and order situation and that a refusal on this basis was the only reasonable answer.

22. As this letter falls short of the requirements placed by section 30 of the Police Act and while we also feel that the learned Single Judge had given the impugned findings on the basis of the police reports which were submitted and on the opinion which was expressed by another learned Single H Judge, we respectfully disagree with the findings of the learned Single Judge and direct the District Magistrate to carry a spot inspection on 5‑5‑2001 accompanied by the Superintendent of Police. Where both of them should meet the cross‑section of the society, inspect the route of the procession, ascertain the dangers involved if any and then give a judgment whether to permit the taking out of the Alam procession for 14 Safar this year or not.

23. In this connection reference may be made to Ayat 83 of Surah An Nisa which reads as follows:‑‑ When there comes to them some matter touching (public) safety or fear, they make it known (among the people); if only they had referred to the Messenger or to those charged with authority among them, the proper investigators would have understood it from them (directly). Had it not been for the Grace and Mercy of Allah upon you, you would have followed Shaitan (Satan), save a few of you.

24. In case the District Magistrate, Chakwal comes to the judgment that apprehensions against breach of peace were either illusory or were being over emphasized, he may then consider granting permission while also considering providing sufficient protection against outsiders for the taking out of the Alain procession while regulating its tenure, time and the route.

25. We are disposing of this appeal accordingly.

26. A copy of this judgment be sent by the Deputy Registrar (Judicial) of this Court to the Secretary, Ministry of Hajj and Religious Affairs, Islamabad in view of our observations in paragraph

20. M.B.A./T‑35/L Order accordingly.