P L D 2022 Lahore 676 (PLP)

SOHAIL NASIR, J.

For the purpose of observing religious obligations during the month of 'Muharram-ul-Haram1' by Shia Muslims apparently there are two kinds of processions called as 'Traditional Procession' and 'Licensed Procession'. 'Licensed Procession' usually relates to the procession of 'Tazia2 and Zuljinnah3' for 10th Muharram whereas the 'Traditional Procession' is other than the 'Licensed Procession'.

2. Case of Shamim Haider and six others (petitioners) on the strength of instant Writ Petition is that from the 'Haveli' of Chan Shah the 'Traditional Procession' named 'Shahbeeh-e-Alam Mubarak4' is to be taken out since long in between 4th and 5th of 'Muharram-ul-Haram' so as to reach and participate 'Azadari5' at 'Imambargah Jageer Shahzadah Ali Akbar, Dhanyala' at a distance of 500 meters from 'Haveli'. According to them in the year 2020 S.H.O.6 Mangla Cantt Jhelum asked them to stop the procession and when no importance was given to the said directions being derogatory and injurious to the religious sentiments of petitioners, FIR7 No.126 on 24.08.2020 at Police Station Mangla Cantt under Sections 341/188/153/143/149, P.P.C.8 read with Section 16 of MPO9 was registered against Syed Naseer Hussain Shah (late) and petitioners Nos. 2 to 7 however all they were acquitted from the case by the learned trial court. Petitioners further maintained that again in 2021 on a report of SHO to Deputy Commissioner, Jhelum, late Syed Naseer Hussain Shah was detained for a period of 30 days under Section 3(1) of the MPO however after three days said detention order was recalled. The ultimate version of petitioners is that in the upcoming month of 'Muharram' as petitioners have to take out the 'Traditional Procession' and the SHO Police Station Mangla is adamant to make interference therefore a direction be issued to restrain him for issuance of threats or undue influence to stop the said procession of 'Shahbeeh-e-Alam Mubarak'.

3. In the comments filed by SHO and Deputy Commissioner it has been maintained that FIR was recorded for the reason that earlier procession was without any permission. It was further added that no application whatsoever on behalf of Shamim Haider/petitioner No.1 has been received seeking permission for 'Traditional Procession'.

4. At the very outset learned Law Officers for respondents have jointly stated that if petitioners move an application seeking permission for taking out 'Traditional Procession' that shall be considered sympathetically as the petitioners have a right to profess, practice and propagate their religion.

5. Taking serious exception to above offer, learned counsel for petitioners has argued that for the purpose of 'Traditional Procession' petitioners are under no obligation to submit any application seeking permission therefore the action of respondents is illegal and against the constitutional guarantees provided under Articles 4, 16 and 20 of The Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). He further adds that if there is any apprehension of breach of peace and law and order situation, only in that eventuality any condition can be imposed on processions whereas in the case in hand no such position is in existence. Learned counsel finally maintains that Article 120 of the Police Order, (22 of 2002) [PO] has been wrongly interpreted and even none of the provisions of The Punjab Civil Administration Act, 2017 (XXX of 2017) [PCAA] is applicable in case of 'Traditional Procession'. In support of his contentions he has relied upon: - ➢ Hakim Sher Ahmad Chishti v. Syed Abbas and 2 others PLD 1976 Lahore 85 ➢ Sharafat Hussain v. Deputy Commissioner, Kasur and another 1983 PCr.LJ 1485 ➢ Syed Sarfraz Hussain Bokhari v. District Magistrate Kasur and others PLD 1983 SC 172 and ➢ Mst. Faiz Mai v. Home Secretary and others PLD 2017 Lahore 896.

6. On the other hand, learned Additional Advocate General and learned Assistant Advocate General contend that the Constitutional guarantees with regard to rights to the citizens are subject to law that means if any law is holding the field on the relevant subject that has to be followed in its letter and spirit. They further maintain that after the promulgation of the 'PCAA', no public meeting, procession or assembly etc. can take place without a prior permission in writing of the Deputy Commissioner.

7. HEARD.

8. Before, the promulgation of 'PO' the subject of issuance of permission and license for religious processions was regulated under Section 30 of the Police Act, 1861 (V of 1861) [PA] and that is as under:-- "

30. Regulation of public assemblies and processions and licensing of same. (1) The District Superintendent or Assistant District Superintendent of Police may, as occasion requires, direct the conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares, and prescribe the routes by which, and the times at which, such processions may pass. (2) He may also, on being satisfied that it is intended by any persons or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form a procession which would, in this judgment, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a license. (3) On such application being made, he may issue a license specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this section: Provided that no fee shall be charged on the application for, or grant of, any such license. Music in the streets. (4) He may also regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies."

9. On coming into force the 'PO' in 2002 the 'PA' was repealed under Article 185 and controversy herein was brought under the Umbrella of Article 120 that is as under:-- "

120. Regulation of public assemblies and processions and licensing of same.

(1) Head of District Police or Assistant or Deputy Superintendent of Police may as occasion require, direct the conduct of assemblies and processions on public roads, or in public streets or thoroughfares and prescribe the routes by which and the times at which, such processions may pass. (2) He may also, on being satisfied that it is intended by any persons or class of persons to convene or collect any assembly in any such road, street or thoroughfare, or to form a procession which would, in his judgment, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice that the persons convening or collecting such assembly or directing or promoting such processions shall apply for a license. (3) On such application being made, he may issue a license specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this Article: Provided that no fee shall be charged on the application for or grant of any such license."

10. Then it was 2016 when the Punjab Civil Administration Ordinance, (XX of 2016) was promulgated and finally the 'PCAA' was enforced on 08.02.2017. The preamble of the 'PCAA' shows that its purpose is to institute a comprehensive system of civil administration in the Punjab for efficient administration, improved service delivery, better coordination, supervision and regulatory enforcement and for ancillary matters thereto. Its Section 16 keeping in view the controversy before this Court is quite relevant and is as under: - "

16. Public processions etc.

(1) No public meeting, procession, assembly or gathering shall take place without prior permission in writing of the Deputy Commissioner. (2) On receipt of an application for the purpose, the Deputy Commissioner, in consultation with the head of District Police, may grant permission subject to such terms and conditions as he deems fit or reject the application after recording reasons. (3) The Deputy Commissioner may, in consultation with the head of the respective local government requisition such assistance of the local government as may be necessary in the circumstances."

11. A careful study of Section 30(1) of 'PA' (since repealed) and Article 120(1) of the 'PO' a makes it clear that a Police officer may as occasion require, direct the conduct of assemblies and processions on public roads, or in public streets or thoroughfares and prescribe the routes by which and the times at which, such processions may pass. (Emphasized).

12. It makes no difficulty to understand that the directions to conduct the assembly by prescribing the routes can be only when there is an application by the person concerned. The question of issuance of license shall arise only when a procession in the judgment of police officer, if uncontrolled, be likely to cause a breach of the peace, and in that eventuality the application for issuance of a license and not simple permission shall be made under Section 30(3) of the 'PA' and Article 120(3) of the 'PO'.

13. Coming to Section 16 of the 'PCAA' learned counsel for petitioners contends that the said provisions do not cover the 'Traditional Procession' or 'Licensed Procession' but I am not impressed with this argument for the reason that in both the provisions only the word 'Procession' has been used without any further classification as 'Traditional Procession' or 'Licensed Procession'. In Mst. Faiz Mai's case (ibid) where the similar question of 'Licensed Procession' was involved, a Division Bench of this Court making reliance on Oxford Dictionary posted the meanings of the word 'Procession' as under: - "The action of moving forward in an orderly way, or the fully robed civic dignitaries walk in procession' It also means a line of people or vehicles that move along slowly, especially as part of a ceremony; the act of moving in this way is funeral procession a torchlight procession. Groups of unemployed people from all over the country marched in procession to the capital. In Oxford Collocations Dictionary, it may be a number of people who come one after the other like a procession of waiters appeared bearing trays of food."

14. In my view after promulgation of the 'PCAA' the ultimate powers are vested with the Deputy Commissioner who while considering the request for any public meeting, procession, assembly or gathering has to consult with head of the District Police and the heads of the respective local government. Therefore I do not find any difficulty to declare that Section 16 of the 'PCAA' in the given circumstance has an overriding effect to the provisions of Article 120 of the 'PO'.

15. Under Section 16 of the 'PCAA' for any kind of gathering or procession a permission from the Deputy Commissioner is required and the rationale behind it is obvious that it will not only facilitate the participants to perform their religious obligations in a protected environment but it will also ensure that no untoward incident takes place or there may not be disturbance of peace and public tranquility and that the law and order must not be compromised. By adopting this lawful procedure the district administration will too be in a position to make proper security arrangements.

16. However, in case of discharge of religious obligations, as there is a constitutional guarantee under Article 20 of 'the Constitution' moving an application undoubtedly appears to be a formality therefore the Authority concerned must give it positive consideration unless there are compelling circumstances to hold otherwise.

17. In Hakim Sher Ahmad Chishti' case although it was held that that organizers of a procession have no obligation to submit any application for permission or license and police officer is required to be in finding out the programme of processions being taken out but the said principle cannot be applied here for a simple reason that the 'PCAA' was promulgated in 2017 whereas in 1976 only the prevailing provision was Section 30 of the 'PA'.

18. In Sharafat Hussain's and Syed Sarfraz Hussain Bokhari's cases the question with regard to refusal of issue of licenses for 'Licensed Processions' was involved so these precedents are having different features not relevant to the facts and circumstances of the case in hand.

19. A careful study of Faiz Mai's case shows that the controversy was started in 2013 when the license issued in favour of predecessor in interest of Faiz Mai was cancelled. At the relevant time the dispute was governed under Article 120 of the 'PO' as the 'PCAA' was not in the field. Even while deciding the appeal in favour of Faiz Mai the ultimate decision was that she may file an application for issuance of license before the District Police Officer, Vehari afresh and if such an application is made, the same will be decided in accordance with law. In that case even by imaginations any question was raised that for 'Traditional Procession' no permission was required.

20. In view of above circumstances, this Writ Petition having no force is hereby dismissed. However, the petitioners shall be at liberty to submit an application to the Deputy Commissioner, Jhelum seeking permission under Section 16 of the 'PCAA' for taking out the 'Traditional Procession' and if such move is made by them, of course considering the sensitivity of the matter and the fundamental rights of petitioners to discharge their religious obligations, the same shall be decided with kind heart by the Deputy Commissioner, Jhelum and certainly in accordance with law after giving a proper right of hearing to them. MWA/S-79/L Petition dismissed.