P L D 2016 Balochistan 21 (PLP)

MRS. SYEDA TAHIRA SAFDAR, J.

The petitioner Hamayun Shah filed the instant petition for issuance of a writ for a right to enter upon lawful profession or occupation, and conduct lawful trade and business as ensured by Article 18 of the Constitution of Pakistan.

2. It was his case that he was running a restaurant at upper floor of Eman Shopping Center at Prince Road, Quetta; through this lawful business he provided entertainment and recreation to the general public. It was further his case that in pursuance to the order dated 18th August, 2014 of the Government of Balocliistan, Home and Tribal Affairs Department, a raid was conducted at his restaurant, and he was charged for providing sheesha in his restaurant. While two complaints were lodged, and he was booked for the offence, but during the course of trial he (petitioner) was acquitted of the charge in exercise of the powers available under Section 249-A, Criminal Procedure Code (Cr.PC) by the trial court i.e. Judicial Magistrate-X, Quetta vide order dated 12th August 2014. It was contended that despite his acquittal, the respondents constantly interfered, and not permitted him to run his legal business.

3. The order dated 18th August 2014 issued by the Provincial Government was claimed to be illegal, thus to be declared void ab-initio. It was asserted that the material used in the sheesha easily available in the open market, and there was no bar on its purchase. Further, the material used for the pufpose not covered by the term narcotics, nor the act of smoking sheesha defined as an offence in the relevant law, thus neither the act was prohibited, nor there was any bar on its business. Thus in 4.he given state of affairs the respondents were not empowered to either interfere or to discontinue his business lawfully carried out. It was contended that the act on part of the respondents was not only in contravention of the law, but also violative to the fundamental rights guaranteed by the Constitution to the citizens. The prayer was to set aside the impugned order dated 18th August 2014, in addition issuance of an order of restraint against the concerned functionaries to refrain from interfering in his (petitioner's) business lawfully carried out.

4. The learned counsel for the petitioner argued his case at length. It was contended that the Secretary, Home and Tribal Affairs, Department, Government of Balochistan, imposed a ban on usage of sheesha at public places without the strength of law. Further, the tobacco used in the sheesha was legally imported, not a banned item, thus its use in business could neither be declared as illegal, nor could be made basis for initiating criminal proceedings against him. The learned counsel was of the view that as no law existed to govern the act of usage of sheesha at public places, thus this fact placed a bar on issuance of any order to restrict the act, nor even exercise of the powers available under Section 144, Cr.P.C. empowered the Provincial Government to issue an order to the effect.

5. In reply the learned Assistant Advocate General was of the view that smoking is not a fundamental right, while sheesha in fact is a narcotic, thus there is a ban on its use in public places. It was further stated that the restaurants and the sheesha cafes offering sheesha also to the school going children, who are minors, thus hazardous for their health. In addition the Government of Balochistan is competent to issue an order to the effect in exercise of powers available under Section 144 Cr.P.C. Subsection (6) of the section was referred with specification. It was contended that issuance of impugned order in no way an infringement to the right of trade or business, as smoking at public places is prohibited by law. In reply the learned counsel for the petitioner referred to Article 18 of the Constitution, which guaranteed the right of profession, trade and business. He denied lying of authority with the Secretary, Home, and Tribal Affairs Department, for the purposes under Section 144, Cr.P.C.

6. In case in hand the petitioner questioned the order issued by the Government of Balochistan, Home and Tribal Affairs Department in exercise of the powers conferred by Section 144 subsection (6) Cr.P.C. The order placed a ban on use of sheesha at public places all over the Province, with specification of its use at Fast Food Centers, Hotels, Restaurants, Net Cafes and Sheesha Cafes with immediate effects till further orders. This order was issued on 18th August 2014. The petitioner highly aggrieved of the order, but approached this court after lapse of nearly five months. The reason to cover the laches was described as he faced the trial, commenced on the complaints filed under Section 188 Pakistan Penal Code (P.P.C.) for the act, and succeeded to obtain an order of acquittal in his favour on acceptance of the application filed for his pre-mature acquittal under Section 249-A, Cr.P.C. vide order dated 12th August 2014. On the strength of this order of acquittal the petitioner questioned the impugned order, and prayed for issuance of a writ to the effect.

7. There was no denial of the fact that the petitioner was running a restaurant at the upper floor of the Eman Shopping Center situated at Prince Road, Quetta. It was also a fact that in addition to his normal busitiess of restaurant he offered sheesha to the customers. Though the petitioner claimed legality of his profession but failed to produce any permit or license issued in his favour for the purpose. As far offering facility of smoking sheesha is concerned, it is governed by the provisions of the Prohibition of Smoking and Protection of Non-smokers Health Ordinance (LXXIV of 2002), 2002 (hereinafter "Ordinance 2002"). This statute deals with the act of smoking and placed certain prohibitions to protect the non-smokers health. To understand the object of promulgation of the Ordinance 2002 reproduction of its preamble would be beneficial. It reads as under: WHEREAS smoking and other tobacco uses is posing a serious threat to the health of people and the environment it is expedient to provide for prohibition of smoking and other tobacco uses in places of public work or use and in public service vehicles and to protect the health of non-smokers and for matters connected therewith or ancillary thereto: In the case in hand the use of sheesha is the matter in issue, thus it is to be considered that wehtehr the use of sheesha covered by the term 'smoking', to bring it within the ambit of the Ordinance, 2002, Clause (g) Ordinanc 2002 defines the term /smoking', it states: (g) "smoking" means smoking of tobacco in any form whether in the form of cigarettes, cigar or otherwise with the aid of a pipe, wrapper or any other instrument. The term as used in the Ordinance covered the act of smoking of tobacco not only restricted to the cigarettes, and cigar, but also with any other means, either with the aid of pipe or any other instrument. It is a fact that tobacco is used in sheesha, thus act of smoking by Sheesha is covered by the term any other instrument.

8. Thus the act of offering sheesha in a restaurant falls within the ambit of smoking and to be governed by the provisions of the Ordinance, 2002. This law placed a prohibition on smoking and other tobacco uses at places of public work or use. A restaurant either covered by the term places of public work or use would be the main issue to determine the fate of the case in hand. Section 2 Clause (c) of the Ordinance 2002 defines the term place of public work and use as: "(c) place of public work or use" means any place declared as such under section 3 and includes auditoriums, buildings, health institutions, amusement centers, restaurants, public Offices, court buildings, cinema halls, conference or seminar halls, eating houses, hotel lounges, other waiting lounges libraries, bus stations or stands, sports stadiums, educational institutions, libraries and the like which are visited by general public but does not include any open place: While Section 5 of the Ordinance 2002 is an addition thereto. It prohibits the act of smoking and other tobacco uses in any form in any place of public work or use reproduced would be beneficial:- "Section

5. Prohibition of smoking and other tobacco use.--No person shall smoke or use tobacco in any other form in any place or public work or use. The Federal Government may however, issue guidelines for permitting designated smoking areas in premises or places where adequate arrangements are made to protect the health of non-smokers." Section 5 of the Ordinance 2002 not to be read in isolation, rather to be read to co-jointly with Section 2(c) and (g) the Ordinance, 2002, in addition to Section 11 of the Ordinance. The statute placed a bar on smoking of tobacco in any form at places of public work and use, and the act constitutes an offence punishable thereunder.

9. The referred provisions be kept in sight while dealing with the case in hand. According to the petitioner he offered sheesha in his restaurant, and the tobacco used for the purpose was imported legally, thus the business was legally carried out. The place of public work or uses as defined also contained the term 'restaurant', thus extended the applicability of the law on the place used as restaurant. In view thereof the offering of sheesha in the restaurant by the petitioner was contrary to the above quoted provisions. The legal import of tobacco would bring no change, nor entitled him for its use in the referred place.

10. As far legality of order dated 18th August 2014 is concerned, it was issued by the Government of Balochistan in exercise of powers available under Subsection (6) Section 144, Cr.P.C. The subsection reads as under: "Section 144 (6). No order under this section shall remain in force for more than two consecutive days and not more than seven days in a month form the making thereof unless, in cases of danger to human life, health or safety, or a likelihood of a riot or any affray, the Provincial Government, by notification in the official Gazette, otherwise directs. This provision specifically empowers the Provincial Government to make an order to the effect. No illegality was pointed out to be committed by the Provincial Government in issuance of the order questioned in the instant petition. The petitioner was unable to establish that any of his fundamental rights was denied by issuance of the order. He being citizen of the country has the right to enter in any profession or occupation or to conduct any trade or business, but the Article 18 of the , Constitution specifically spelt the nature of the profession occupation, trade, and business as lawful, which is missing in the instant case.. In view of the above discussion the petitioner failed to make out a case. The petition is dismissed for want of merit. MH/9/Bal. Petition dismissed.