1997 PLP 588 (MLD)

Muhammad Siddique, petitioner, who is a follower of Fiqah‑e‑Jafaria, claims to have constructed in Azakhana and a Madrissa at Rehmanpura, Lahore. According to him, he is holding Majlis‑e‑Aza from 26th of Moharram to 30th of Moharram in the Azakhana for the last 12 years. He submitted an application to the District Magistrate, Lahore for taking out religious procession from his Madrissa to Majlis‑ul‑Hussain on the 30th of Moharram but the District Magistrate declined permission vide order dated 13‑11‑1995 which is reproduced below:‑‑ "Memo. Reference your application dated 26‑10‑1995 on the subject noted above. A report was summoned from Assistant Commissioner, Model Town, Lahore who did not recommend the granting of permission for taking out procession due to genuine apprehension of law and order situation. There is, thus, no justification for granting permission and the request is turned down. for Deputy Commissioner, Lahore." The petitioner has challenged the above order by invoking the Constitutional jurisdiction of this Court.

2. It is contended on behalf of the petitioner that it is his Constitutional right to worship according to his faith and he cannot be deprived of the right to propagate and profess his religion. The order of the Deputy Commissioner denying permission to him. to take out the procession is not based on judicial considerations, it is maintained.

3. Mr. Asif Haider Shah, Assistant Commissioner, Model Town, Lahore states that permission to take out procession was refused to the petitioner in pursuance of letter dated 21‑9‑1987 issued by the Government of Punjab Prohibiting the issuance of fresh licences for taking out religious procession. A report was called from his predecessor who reported that the petitioner conducted Majlis‑e‑Aza at his residence from 26th of Moharram to 30th of Moharram inside the premises and that he was the only Shia residing in that area and if the required permission was granted to him, it might entail serious law and order situation/sectarian violence because inhabitants of the locality had made an application to the Assistant Commissioner, Model Town, Lahore against the petitioner.

4. Learned counsel for the petitioner states that the mere fact that the petitioner is reported to have been holding Majlis‑e‑Aza at his residence previously would not create any legal bar on him to apply for licence for taking out the procession. In this context, he has relied on Syed Dilshad Hussain v. District Magistrate, Sialkot and another (PLD 1983 Lahore 97). Learned counsel further states that the District Magistrate is required to apply his own independent mind in discharge of his statutory duties and should not have been swayed by the instructions issued by the Government on the executive side. Reliance in this respect has been placed on Syed Dilshad Hussain v. Province of Punjab and others (PLD 1982 Lahore 153). In Muhammad Hussain Bhatti v. District Magistrate, Gujrat (1985 PCr.LJ 301), it was observed that where the applicant was not shown to have acted mala fide or for some ulterior motive in moving an application for the grant of the licence to take out religious procession, the District Magistrate in such circumstances was under a legal obligation to issue licence. In Sarfraz Hussain Bokhari v. District Magistrate, Kasur and another (PLD 1983 SC 172), it was held that total prohibition or outright refusal for all times to take out procession or to participate in religious ceremony or observance is not envisaged under law.

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. N.H.Q./M‑219/L Petition accepted.