P L D 1981 Lahore 757 (PLP)

The matter before this Court for decision at the moment arising out of the petition under Article 199 of the Constitution filed by Anjumane Hussainia (Registered) Sumberial, Tehsil Daska, District Sialkot, relates to issuance of directions to the District Magistrate and Superintendent of Police, Sialkot, respondents, for issuing licence for taking out Zu1jinnah procession on the 10th Muharram-ul-Haram, which fall on the 19th November, 1980 and on the occasion of Chelum. As stated by the Anjumane Hussainia in its petition it had moved application to the respondents for the purpose of issuance of licence on the 23rd January, 1980 but had received no reply thereto. There fore, it had to invoke Constitutional jurisdiction of this Court by instituting the present petition on the 7th February, 1980.

2. The District Magistrate, Sialkot, in view of some Government instruc tions, sent the case along with the report of the Superintendent of Police, who had opposed the grant of licence to the petitioner, to the Commissioner, Lahore Division, Lahore. As the 10th of Muharram-ul-Haram was drawing nearer when the petition came up for hearing before this Court, the learned Assistant Advocate-General appearing on behalf of the respondents was asked to get an expeditious decision on the paitioner's application by the District Magistrate, Sialkot. The District Magistrate passed order on the 15th November, 1980 declining the petitioner's request for a licence for taking out processions

3. In his order the District Magistrate observed that only five families of Shias were reported to be residing in the locality where the majority of population being Sunnis and Ahle-e-Hadith were opposed to grant of licence to the petitioner. In view of existing sectarian tension in Samberial town as well as in the district, the District Magistrate thought that grant of licence would amount to showing a lighted match to a dump of petroleum. The District Magistrate based his view on long study and reliable intelligence reports from various sources. Therefore, be did not consider it proper to grant licence to .the petitioner.

4. The learned counsel for the petitioner . disputed the correctness of the view touching law and order situation as propounded by the District Magistrate and contended that if the situation had been otherwise than normal an order under section 144 of the Code of Criminal Procedure could have been made by the District Magistrate but absence of any prohibitory action indicates that the apprehension of .the executive authorities of the District was not well-founded: Again referring to the rule enunciated in Hakim Sher Ahmad Chisti v. Syed Abbas (P L D 1976 Lab. 85) and Mohabat Ali v. The District Magistrate, Campbellpur (P L D 1976 Lab. 755) as also in unreported judgment of this Court in Writ Petition No. 7502 of 1979 Syed Sarfraz Bokhari v. The District Magistrate Kasur, he maintained that an apprehension of breach of peace gave jurisdiction to the respondents to issue licence for if there was no apprehension there was no necessity of obtaining licence. According to the learned counsel the petitioner had the right to take out Zuljinnah and Chehlum processions while the District Magistrate was only concerned with regulating the same and. could not ban them. He referred to the observations made in Malik Sher Ahmad Chisti's case that the Police was required to be vigilant in finding out the programme of procession being taken out and to act on its own under section 30(1) of the Police Act, 1861, on receipt of such information.

5. On the other hand, the learned counsel for the respondents, relying on the law laid down by the Supreme Court in Mian Muhammad v. Government of West Pakistan (1970 S C M R 645) and by this Court in Muhammad Aslam alias Muhammad Mehdi v. District Magistrate, Gujrat (1980 P Cr. L 1707) maintained that issuance of licence in a fit case could very well be refused under section 30(3) of the Police Act, 1861. As is apparent from the last mentioned case, based as it is on the Supreme Court's judgment in Mian Mohammed s case, the District Magistrate, who is the proper Judge of the situation can restrain the petitioner if law and order situation so warrants. The only restriction on his powers is to apply his mind and abstain from dealing with the case arbitrarily or capriciously.

6. A perusal of the contents of the District Magistrate's file on the subject confirms the apprehension expressed by the District Magistrate. Quit a large number of residents of Sumberial town recorded their protests against taking out of the procession. No procession has ever been taken out by Shias before in this locality: ' In view of the prevailing sectarian feelings un desirable situation is likely to develop in case the' petitioner were to take out procession. The District Magistrate seems to have taken an objective view of the situation and does not appear to have acted in an arbitrary, unreason able or capricious manner in declining to issue the licence. Interpretation of section 30 of the Police Act by the Supreme Court in Mian Muhammad's case, spells out powers of the District Magistrate to refuse issuance of licence in an appropriate case. Therefore, the order of the District Magistrate cannot be called unlawful. The petition is consequently dismissed. M.Y.H. Writ petition dismissed.