P L D 1956 Federal Court 190 (PLP)

CORNELIUS, J.‑

This appeal by special leave is brought against an order made by a Single Judge of the Chief Court of Sind., The petitioner before the Chief Court had sought for the cancellation of certain restraint orders made by the District Magistrate of Hyderabad, the principal order being under section 144, Criminal P. C. addressed to the general public of Hyderabad District, which was supported by subsidiary orders made under sections 42, 43, and 46 of the Sind District Police Act. Briefly, the purpose which the District Magistrate attempted to achieve by means of these orders was to prevent to the public at large from joining or otherwise promoting a fair organised at a place known as Luari in the Hyderabad District, by the Pir of Luari, which was fixed to be held on the 9th and 10th days of the month of Zul‑Hajj. The reason stated in the order under section 144, Criminal P. C. for preventing the fair was that religious practices observed at the fair were " opposed to religious susceptibilities of persons following the Muslim Faith and Religion and are further likely to cause annoyance and lead to excitement, riots, affrays and disturbance of the public tranquility ". Seven such practices were enumerated in the order under the head of "insulting and outrageous device " designed to create the impression upon persons visiting the fair and saying prayers at Luari on Hajj day that the said prayers " have the same effect for participators as the prayers at the Holy Mecca and that a visit to Luari on the said date has the same sanctity as the visit to Holy Mecca ". The first subsidiary order under section 42 of the Sind District Police Act forbade the carrying of arms and missiles public utterance of cries, singing of hymns, delivery of lectures, and display of posters, being in the nature of " action likely to inflame religious hatred and animosity between the followers of Pir of Luari and Muslim Masses at large ". The second order under section 43 of the same Act forbade members of public to visit Luari except under a permit issued by a Magistrate, and also closed to the public the maidan at Luari on which the fair was expected to be held, as well as access to Luari from any place in the Badin taluka of the Hyderabad District. The third order under section 46 was addressed to five named persons. Its contents are now of no importance to the case as it has been set aside by the Sind Chief Court. It is agreed between the parties that the subsidiary orders stand or fall along with the main order under section 144, Criminal P. C. The principal petitioner is the Pir of Luari with whom has been joined, as second petitioner, one of his followers. The main contention advanced on behalf of the petitioners is that the restraint orders have been made by the District Magistrate mechanically following a practice which com menced in the year 1939 and has been continued annually since then. The contention is founded on an assumption which itself is based upon the circumstance that the order made in respect of the fair to be held in the year 1955 was in all respects, word for word and even comma for comma an exact copy of the similar order made in each of the previous fifteen years. The Chief Court of Sind rejected the contention and did so without calling for evidence such as should have been available readily. For example, the District Magistrate may have been asked to give evidence as to the circumstances upon which he relied in forming the opinion that there was " sufficient ground for proceeding in this case and immediate prevention, or speedy remedy is (was) desirable ". Notice of the petition was however sent to the District Magistrate who reported briefly in an official memorandum the circumstances which led to the banning of the fair in the year 1939, and ended as follows :‑-- " I may point out that the proposed Hajj at Luari is opposed to religious susceptibilities of persons following the Muslim Faith and religion and had it not been banned, there was every possibility of grave disturbance of the public peace and tranquility. In case of apprehended danger, I was competent to pass orders under section 144 Criminal P. C. ". In the same letter, the District Magistrate said that since 1939, the fair had been banned every year " after obtaining orders from the Government " and that in 1955 also it had been banned " vide Government order " of which order z copy was enclosed. The form in which the District Magistrate close to snake his report has afforded an opportunity to Mr. Fazlur Rahman to argue for the appellants that, contrary to the provisions of section 144, Criminal P. C., effect had been given by means of the order, not to the opinion of the District Magistrate, but to the opinion formed by the Govern ment. The argument Is unsound in point of fact as well as in point of principle. The principle governing action of this nature taken under section 144, Criminal P. C. is plain. The express appre hension is that if the fair were allowed to be held, it would give rise to widespread resentment and opposition among people of District Hyderabad. The dimentions of the problem with which the Government was faced namely to prevent a widespread disturbance of this kind, thus clearly appear, and it is totally unreasonable to expect that, in the circum stances, the District Magistrate should riot act in the closest and fullest consultation with the Government. The fact that the statutory order under section 144, Criminal P. C., was to be made by the District Magistrate, and that the condition of the making of the order should be the formation by him of a particular opinion, do not in our opinion affect in any way the essential position, namely that the maintenance of public order in the relevant circumstances was the duty and proper function of the Provincial Govern ment, whose servant and agent the District Magistrate was. In any case, the report of the District Magistrate indicates sufficiently clearly that it was his opinion also that the banning of the fair was necessary to avoid grave disturbance of public peace and tranquility. As for the Government order relating to the fair to be held in the year 1955, a copy of which has been placed on the record, it said no more than that the District Magistrate was free to " impose the usual restrictions on the holding of Luari Hajj during the current year, if neces sary ". The words employed leave a sufficient option to the District Magistrate to satisfy even the narrow requirements of the contention advanced by Mr. Fazlur Rahman. The learned counsel appearing for the Crown has placed upon the record a true copy of the original memorandum upon which there appears an endorsement by the District Magistrate dated 10th of July 1955, which reads as follows :‑ " Discuss before issue at once " In our opinion, no more proof is needed beyond that provided by the words of this endorsement, for holding that the order relating to the 1955 fair was not made in any mechanical or repetitive fashion, but that it was preceded by formation of such an opinion as the law requires. Mr. Fazlur Rahman urged that there was no proof that any enquiry had been made by the District Magistrate as to the circumstances actually existing. The correct aspect of the matter however is that in view of the categorical statement in the order under section 144 Criminal P. C., regarding the formation of the necessary opinion, tile presumption must be that the District Magistrate acted in due and proper compliance with the requirements of the law. His endorsement on the Govern ment order referred to above provides direct proof that he did apply his mind, in consultation with his administrative officials, to the question of the necessity of the restraint order. It must not be forgotten that, for the purpose of maintaining law and order, District Magistrates are provided with an elaborate and highly trained agency namely the police force working under the command of the District Superintendent Ii Police. Bearing in mind the scope and extent of the Problem with which the District authorities of Hyderabad are annually faced in the month of Zul Hajj, on account of the aforesaid practices at Luari, it cannot but be assumed that the action taken each year by the District authorities, in consultation with the Government, is based upon information made available to the District Magistrate through the agency of the police force. That conclusion is sufficient to dispose of the case, for the only orders which were called in question before the Chief Court of Sind were the orders made in respect of the 1955 fair. We think it desirable however to deal briefly with all argument which was pressed before us at some length by Mr. Fazlur‑Rahman. The argument, was somewhat to the following effect. Freedom of religious observance has been guaranteed to subjects of the Crown in the territory in question ever since the Proclamation made by Queen Victoria in the year 1858, The relevant words of the Proclamation read as follows:‑-- " We do strictly charge and enjoin all those who may be in authority under us that they abstain from all interference with religious belief or worship or any of our subjects on pain of our highest displeasure ". The protection of the law was guaranteed in relation to religious practices in the following words :‑-- " We declare it to be our Royal will and pleasure that none be in any wise favoured, none molested or disquicted by reason of their religious faith or observances but all shall alike enjoy the equal and impartial protection of the law ". Proceeding, Mr. Fazlur‑Rahman argued that the present position was in no wise different from that enunciated in Queen Victoria's Proclamation. He contended that the practices at the Luari fair were not of a character such as could offend the susceptibilities of persons following " the Muslim Faith and Religion ". Indeed, he placed reliance upon a statement contained in the petition for appeal and supporting affidavit that the fair had been held for some two hundred years, and it was only in the year 1938 that, at the instance of the then Government which was prompted by political considerations, an attempt was made by the people of the surrounding country to interfere with the observances held at Luari during the Hajj days. He was constrained to admit that in the year 1939, the Government of Sind was compelled to take action under section 144, Criminal P. C., and the provisions of the Sind District Police Act to prevent very serious disturbances which were threatened by observance of the practice. The facts and circumstances which prompted the action of the Sind Government in the year 1939 are stated with fulness and clarity in a judgment of a Division Bench of the Sind Chief Court reported as Pir Gul Hassan Sahib v. Emperor (A I R 1939 Sind 230). It appears that in 1939, the followers of the Pir themselves approached the Government for protec tion as there was " expectation of great trouble, mob violence, bloodshed and roit " and they particularly asked that the protection of their lives and respect should be entrusted to " Hindu or Gorkha Sikh Police ". As a result the District Magistrate made enquiries to ascertain Muslim opinion in general regarding the holding of the Luari fair on Hajj days and being satisfied by the replies received that the fair was regarded as " very objectionable " and " definitely irreligious," he made an order under section 144, Criminal P. C, to prevent the holding of the fair. No similar enquiries are shown to have been made since 1939, but each year, a few days in advance of the Hajj dates, the District Magistrate has been issuing orders in exactly the same terms as the orders of 1939, Mr. Fazlur‑Rahman contends that such action is ultra vires of section 144, Criminal P. C. By continuous repetition of the order made in due time, the exercise by the Pir of Luari of the fundamental right of freedom of religious observance, has been successfully' prevented in such way as practically to extinguish the right. Urging that by its very terms section 144, Criminal P. C., only gives power to make orders of a temporary nature, in the face of an emergency, Mr. Fazlur‑Rahman contended that to use these powers in such a way as to extinguish a right altogether is plainly an abuse and consequently ultra vires. In cases of this kind, where such trouble occurs annually, and can be anticipated, the Government is under the duty to use its powers so as to support those who are in the right, in the exercise of their lawful rights, and to restrain those who are wrong from interfering with such exercise. Powers of the relevant kind were available, it was suggested, under sections 107 and 145, Criminal P. C. Much of the substance is taken away from the argument by the circumstance that the practices in question followed by the Pir of Luari have been annually condemned in public and official orders made by the Government, describing them as " insulting and outrageous devices ". The words are in themselves sufficient to provide a cause of action to the Pir, if he had been so minded, at any time during the past sixteen years. If such an action were successful, the Pir would certainly have been placed on stronger ground to advance a claim that he was acting within his lawful rights. On the other hand, it is hardly possible to claim a lawful right to practise insulting and outrageous devices ", and we cannot conceive that by merely claiming that such " devices " possess a religious character, the claimant becomes entitled to the full protection of the law as enunciated in Queen Victoria's Proclamation. In this view of the matter, the force of the contention that section 144, Criminal P. C., has been employed to extinguish permanently a legal right, is greatly diminished. Even were the right in all respects a lawful one, the District Magistrate would be under a higher obligation to maintain public peace and tranquility, should these have been suddenly threatened by the exercise of the aforesaid right, than his obligation to protect individual or individuals laying claim to such right in the exercise thereof. In such circumstances, it is clearly right that the needs of public order should be paramount. The claim that the rights and wrongs of the matter should have been investigated by the Government and the restraint orders should have been applied only to those who were wrong, ignores, the plain fact that as against the Pir and his followers, who constitute a comparatively small group, there was on the other side the great mass of the Muslim population of Hyderabad District whose feelings were outraged by reason of the aforesaid practices. To place the latter persons under security, as is suggested by Mr. Fazlur‑Rahman, is obviously a task beyond the limit of practicality. Moreover, the order of restraint itself shows that the Government had judged between the holders of the fair and those who objected to it, since they declared in clear terms that the practices at the fair were of an abominable nature. In these circumstances, it seems plain enough that in order to become entitled to claim Government protection for the practices in respect of which he claims a right, the Pir must, in the first instance, seek to overcome the latter imputation. Were he to succeed in this attempt, it might still be necessary for him having regard to the extent and nature of the opposition which these practices arouse, to take active steps to create, in the relevant areas, a climate of public opinion, favourable to the acceptance of the practice in question as being in line with the generally accepted beliefs. We accordingly dismiss this appeal. A.H. Appeal dismissed.