1998 PLP 1340 (MLD)

Ismail Khan Video Games Centre, Army Stadium, Peshawar and sixty others, petitioners herein, have sought declaration to declare the order dated 24-9-1997 of the Sub-Divisional Magistrate, Peshawar, to be without lawful authority and of no legal effect and prayed that the respondents be directed to act in the matter in accordance with law and to withdraw the impugned order.

2. This writ petition came .up for hearing before a Division Bench of this Court comprising of Mr. Justice Mian Shakirullah Jan and Mr. Justice Malik Hamid Saeed. Both the learned Judges have proposed their own judgments whereby the former has dismissed the writ petition while the latter has accepted the same.

3. Vide order dated 18-11-1997 the Honourable Chief Justice has referred the case for disposal to the undersigned. I have heard the learned counsel for the parties and perused the available material on the record. I have had also the privilege to go through the proposed judgments of my learned brothers.

4. A preliminary objection was taken by the learned Additional Advocate- General stating that the writ petition has become infructuous as the period prescribed in the impugned order has expired. This preliminary objection is not maintainable on the ground that the writ petition was earlier heard by a Division Bench wherein learned Judges have proposed their judgments dissenting with each other as such the case has been referred to this Bench for decision as referee Court under Item 5(i) Chapter-D, Clause 26 of Letters Patent, High Court Practice and Procedure which needs to be decided on merits. Since facts of the case have been given. by both the learned Judges, therefore, I may not recapitulate the same.

5. It was mainly contended that section 144, Cr.P.C. was not at all attracted to the lawful business of the petitioners which is of a permanent nature and since there was no question of emergency involved, therefore, the exercise of power under the aforesaid section without giving any prior notice and opportunity of hearing was illegal and without lawful authority.

6. Learned Additional Advocate-General defended the impugned order contending the same was passed to prevent the annoyance of the parents who had filed numerous complaints before the District Administration against the Video Games Centres and its object was to preserve public peace and tranquillity.

7. For convenience sake section 144, Cr.P.C. is produced hereunder:- "

144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger.--(1) In cases where, in the opinion of a District Magistrate Sub-divisional Magistrate, or of any other Magistrate not being a Magistrate of the third class, specially empowered by the Provincial Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction annoyance or injury, or risk of obstruction., annoyance or injury, to any person, lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. (2) An order under this section may, in case of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte. (3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place-, (4) Any Magistrate may either on his own motion or on the application of any person aggrieved rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor-in-office. (5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing. (6) No order under this section shall remain in force for more than two months, from the making thereof; unless, in case of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs."

8. The aforesaid section provides preventive measure in apprehended danger of breach of peace or where there is immediate danger of annoyance or injury to human life, health or safety or a disturbance f the public tranquillity or a not or an affray, the Magistrate on his sati faction that immediate prevention or speedy remedy is necessary, he can issue an order directing any person to abstain from doing certain acts as specified in the section. Such an order except in state of emergency cannot be issued without prior notice to the person likely to be effected and the aggrieved person on his application has also a right to be heard by the Magistrate who has to record reasons in case of rejection of application either wholly or in part:

9. In the present case, admittedly no notice to the petitioners was ever issued prior to the issuance of the impugned order which was violative of the law itself. The impugned order has been passed restricting the lawful business of permanent nature which has been recognised by N .W. F. P., Finance Act, 1997 whereby sub-section (3) of section 7 of the N. W. F. P. Finance Act, 1995 was substituted in the following words:- "Amendment of N. W. F. P. Act I of 1995.--In the North-West Frontier Province Finance Act, 1995 (N. W. F. P., Act I of 1995), in section 7. (a) (b) .... (c) for subsection (3), the following shall be substituted, namely:- (3) Government may, by notification in the official Gazette, require the registration of video games centres from such date and on payment of such registration and renewal fees as may be specified in the notification" and (d).............................. The law of the land has itself recognised the registration of video games centres subject to registration from such date and on payment of registration fee and renewal fee which may be specified the Notification. The business as such is in consonance with the provisions Article 18 of the Constitution as the same has been licentiated lay the aforesaid law and can be further regulated by law if so desired, but it could not be restricted through the impugned order for a period of two months, which otherwise too as stated above is in violation of subsection (2) and (5) of section 144, Cr.P.C. and, thus, is unsustainable. Keeping in view the aforesaid legal position I am inclined to concur with the conclusion drawn by my learned brother Mr. Justice Malik Hamid Saeed and as such I accept this writ petition and declare the impugned order of respondent No. 1 to be without lawful authority and of no legal effect. The Government, if so advised, can further legislate law regulating such business in accordance with the Constitution. H.B.T./22/P Petition accepted.