P L D 1963 (W (PLP)

Given under my hand and seal of this Court, this 7th day of August 1963. Sd. Masood Nabi Nur, District Magistrate, Peshawar."

2. The principal ground of attack‑directed against the impugned order being "illegal and ultra vires" is that the order does not comply with the statutory requirements of section 144, Cr. P. C., under which the District Magistrate is under obligation "of stating the material facts of the case" after he had formed the opinion that there are sufficient grounds for proceeding under that section and immediate prevention or speedy remedy is desirable. To put it differently, it was argued that any order passed under section 144 which omitted to indicate the material facts which justify such order was ultra vires and illegal, and its non‑compliance would not constitute any offence.

3. It was also argued that the impugned order was mala fide, and that the learned District Magistrate bad passed the order on a pretended apprehension of danger of the breach of public peace solely with a view to preventing the Sarhad National Awami Party to hold public meetings which were scheduled to take place on 9th, 10th, 12th, 17th and 24th August 1963, at times and places stated in para. 2 of the petition.

4. Mr. Sher Bahadur Khan, the learned Additional Advocate‑General, tried to argue that the omission of indicating the material facts of the case was not fatal to the proceeding under section 144, and that a Magistrate having the jurisdiction is fully justified in passing an order under section 144, without setting out in the order the grounds of his action, where, on the facts of the particular case there appears to be no doubt that imminent breach of peace was apprehended. The learned A. A.‑G., in the alternative, tried to argue that the opening words of the impugned order "that a state of tension has been created" should be read as a statement of the material facts of the case. The learned A. A.‑G., tried to re‑inforce his argument on the decision in Bhupendra Mohan Pal Chaudhuri and others v. Chairman of Madaripur Municipality (A I R 1917 Cal. 6). Finally, the learned A. A.‑G., made a feeble attempt of arguing that the District Magistrate could pass orders under section 144 even "acting on a secret information which he might not disclose a s tending to injure the public interest at large." It was argued that in the instant case, too, the District Magistrate had acted on a secret information which he was ready to show to the Court.

5. Since the decision of the case hinges on the interpretation of section 144, Cr. P. C., it will be convenient to read that section, which is in the following terms :‑ 144 (1) In cases where, in the opinion of a District Magis trate, 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 to 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, annoy ance 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 tranquility, or a riot, or an affray. (2) An order under this section may, in cases 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 cases 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." It will be plain from reading of the language of section 144 that the section deals with urgent cases of nuisance and apprehended danger of breach of public peace, and, in consequence thereof an immediate prevention is necessary. The power thus conferred on the Magistrates is an extraordinary power which enables them to suspend the lawful rights of the public if they think sue suspension would be in the interest of the public peace and safety. This power is, however, subject to one overriding con dition which makes it obligatory on the Magistrate of recording an order "stating the material facts of the case", i.e., the reason which has induced in the mind of the Magistrate an opinion of taking a prompt action with a view to preventing breach of public peace in urgent cases of nuisance and apprehend danger of breach of public peace. The principle underlying the stating of the material facts of the case is two‑fold (1) that since the order under section 144 is a judicial order and is revisable by the High Court, that order should contain with sufficient precision the material on which the order taking action for apprehended breach of peace or prevention of nuisance is founded, so that the revisional authority i.e., the High Court can form a just opinion of the fairness of the order. The other reason is that the citizens have a Constitutional guarantee under the Constitution of the Republic of Pakistan in regard to "Freedom of Expres sion" and "Freedom of Association", and under the principles of law‑making and of policy, no law shall impose any restriction on the freedom of a citizen to give expression to his thoughts, or to pass law which should impose any restriction on the freedom of citizens to assemble peacefully and without arms, or to form associations or unions. This being the position, every citizen has a right to ventilate his grievances either in public or in private and ask for redress and this right should not be curtailed so long as it is exercised in a lawful manner, and, therefore, in order to prevent the abuse of rather the misuse of this section, the Legislature has in its wisdom laid down that the Magistrate must satisfy himself that there is sufficient ground for proceeding under section 144, and that when he is so satisfied he must set out the material facts of the case in his order. The reason for this is that the public should know why it is necessary that their Constitutional guarantee in regard to "Freedom of Expres sion" and "Freedom of Association" has been suspended. So far I have been discussing the point untrammelled by authorities. There is, however, considerable case‑law on the point, but I would content myself by referring to the Full Bench decision in P. T. Chandra, Editor Tribune v. Emperor (A I R 1942 Lab. 171) in which Young C. J., while dealing with the very same point, at page 172, summed up the discussion as follows :‑ Concerning the merits of the order : In the first place, the order in this case does not comply with the provisions of the section itself. Section 144 enacts that the Magistrate may, by a written order stating the material facts of the case direct any person to abstain from a certain act. In this order no materal facts, which would justify the order, have been given. To justify an order under section 144 there must be a casual connection between the act prohibited and the danger appre hended to prevent which the order is passed. It is not stated in the order, nor is it alleged, that the publication of news about the hartal had led in the past to the formation of unlawful processions. Nor has any connection been shown between the articles to be published in the press and the alleged danger of disturbance of public tranquillity. As held in A I R 1940 Bom. 42, the right of the public to have news published is common to all countries where there is liberty of the press and it is the right of all newspapers equally to publish news provided it does not offend against any existing law. It is obvious therefore that the powers given to Magistrate under section 144, Criminal P. C., to interfere with the liberty of the press should be used very sparingly and only for good cause shown. It is for this reason that section 144 itself makes it obligatory for the Magistrate in any such order to indicate the material facts which justify such an order. There are many authorities which make it clear that not only is it necessary to state the material facts but that there must be urgency in the matter. I express my respectful accord with the statement of the law contained in the above passage.

6. It follows from the above discussion that the omission to indicate in the order the material facts which justify an appre hension of the breach of peace is fatal to its validity. Having held that the impugned order is illegal and ultra vires, I need not discuss the question of mala fide of the order. I accordingly set aside this order. It is, however, open to the District Magistrate if in future he arrives at an opinion on material before him that public tranquillity would be disturbed by holding of such meetings, to state properly that material, and pass an order under section 144, Criminal Procedure Code, according to law. K. B. A. Petition accepted.