P L D 1965 (W (PLP)

MUHAMMAD AKRAM, J.‑By this writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan, the petitioner has challenged the validity of the order of the District Magistrate, Lahore (respondent No. 1) passed on 8th/9th of February 1964, in the exercise of the powers conferred on him under section 8 of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), and the consequential prosecu tion of the petitioner for his alleged failure to comply with it.

2. The case of the petitioner as disclosed in this writ petition is that on the 19th of January 1964, an association known as the West Pakistan National Democratic Front was formed with the primary object of achieving the democratisation of the Constitution of Pakistan and to take all lawful and constitutional steps in that direction. A Council of the West Pakistan National Democratic Front was also set up for the purpose. On 8th of February 1964, a meeting of the Council was held at Fane Road, Lahore when its proceedings were adjourned to the next following day. On the 9th of February 1964, the Council of West Pakistan Democratic Front met in Room No. 1, Pipals, Lahore, where the petitioner, who was a Member of the National Assembly of Pakistan, was staying at the time. This meeting commenced at 10‑30 a.m. and continued up to 12‑00 noon when Ch. Muhammad Mirza and Malik Muhammad Nawaz, two of the Sub‑Inspectors of Police, Special Branch, West Pakistan, Lahore, appeared at the meeting and presented the order dated 8th/9th of February 1964, passed by the District Magistrate, Lahore deputing them to enter the place of the meeting and record its proceedings. This order purports to have been passed by respondent No. 1 in exercise of his powers under section 8 of the West Pakistan (Maintenance. of Public Order) Ordinance, 1960 (hereinafter referred to as the `Ordinance'), on the information received by him that a public meeting of the Council of the National Democratic Front was scheduled to take place on 9th of February 1964, in Room No. 1, Pipals, Lahore. The petitioner objected to the attendance by the two Police Officers on the ground that no public meeting as provided by section 8 of the Ordinance was being held in Room No. 1 and that the meeting in progress was strictly private and none excepting the members of the Central Executive of the National Democratic Front could participate in it. He made an endorsement to that effect on the order served on him. According to the version of the petitioner, thereupon the Police Officers voluntarily withdrew themselves from the room and he adjourned the meeting as a. protest against this unjustified interference by the authorities. Subsequently on the 11th of February 1964, he learnt from a news item in The Pakistan Times that a case was registered, against him and all others who participated in that meeting, under section 13 of the Ordinance for their refusal to abide by that order of the District Magistrate. The petitioner is a Member of the National Democratic Front and a Convener of the Council. He has alleged in this writ petition that the meeting of the West Pakistan National Democratic Front was not a public meeting at all and respondent No. 1 acted in excess of his authority under section 8 of the Ordinance in deputing the two Police Officers to attend the meeting and record its proceedings. It is further averred by the petitioner that section 8 of the Ordinance is ultra vires of his Fundamental Rights of assembly and association‑ guaranteed by the Constitution of Pakistan ‑and also infringes against the provisions ensuring equal protection of law to the citizens of the State. It is also maintained that section 8 of the Ordinance is repugnant to the provisions of the Political Parties Act, 1962 which is a Central Act. Lastly it is contended that the impugned order of the respondent is mala fide and was passed with a view to obstruct the Council in its lawful activities for extraneous reasons.

3. The writ petition is opposed by the District Magistrate, Lahore, and the Government of the West Pakistan, the two respondents, on all the grounds raised by the petitioner. According to the impugned order (Annexure 'C') credible information was received by the District Magistrate, Lahore that "a public meeting of the Council of the National Democratic Front" was scheduled to take place on 9th of February 1964, at Pipals (Room No. 1), at Lahore and a report of the proceedings of that meeting was to be made; therefore, in exercise of the powers enabling him in this behalf under section 8 of the Ordinance 1960, he deputed S. I., Ch. Muhammad Mirza and S. I., Muhammad Nawaz of Special. Branch, West Pakistan, to enter the aforesaid place and record the proceedings of the proposed meeting.

4. The Ordinance was promulgated by the Governor of West Pakistan with a view to consolidate ‑and amend the law relating to preventive detentions and to control persons and publications connected with the maintenance of public order in West Pakistan. Section 8 of the Ordinance which is the relevant provision for the purpose of this case is reproduced hereunder:‑ "8 (1) The District Magistrate may, by order in writing depute one or more Police Officers not below the rank of head‑constables, or other persons to attend any public meeting for the purpose of causing a report to be made of the proceedings. (2) Any such order shall operate as a direction to the person responsible for the convening or conduct of the meeting to admit free of charge the persons so deputed. Explanation.‑For the purpose of this section a public meetingR4q is any meeting which is open to the public or to any class or portion of the public, arid a meeting may be public meeting notwithstanding that it is held in a private place and notwithstanding that admission thereof is restricted by tickets or ' otherwise." Under this section as it stands, the District Magistrate is vested with powers to depute persons to attend any "public meeting", to report about its proceedings. On the face of it the District Magistrate has no authority to depute any body to attend any meeting which is not a "public meeting" within the meaning of this section. The Explanation to this section clarifies as to what is meant by this expression. A `public meeting' is the one which is open to the public or to any class or portion of the public and a meeting may be a public meeting notwithstanding that it is held in a private place and notwithstanding that admission therefore is restricted by tickets or otherwise. Therefore, a meeting would be public meeting only if it is "open to the public or to any class or portion of the public" and in our opinion these words are the key to the definition. The learned Advocate‑General appearing for the respondents in this case has stressed that a meeting of any portion or class of the public would constitute a public meeting, so that whenever a group of persons assemble together, they will constitute a public meeting irrespective of the purpose for which they have gathered together and the nature of the invitation extended to them. Each individual citizen, so it is contended, is undoubtedly a member of the public; when they assemble together they cannot divorce themselves of their character as the members of the public and any meeting by them would be a `public meeting' ‑covered by the mischief of the section. This interpretation, if pressed to its logical conclusion, would lead to startling results; a meeting between a husband and wife or the members of a family in the privacy of their home, and of the students studying in their class‑room, would constitute a public meeting and the distinction between a private meeting and public meeting would vanish altogether.

5. Section 8 of the Ordinance itself recognises this distinction. The District Magistrate can act in connection with a public meeting only and has no power to depute anybody to attend a private meeting. The definition of the expression "public meeting" seems to have been borrowed from section 3 of the Prevention of Seditious Meetings Act (X of 1911). Similar phraseology is also employed in section 4 of the Punjab Public Safety Act (XVIII 'of 1949); section 12 of Baluchistan Public Safety Regulation (I of 1947); and section 21 of East Bengal Public Safety Ordinance (XXI of 1951). But there does not appear to be any reported case, at least none was cited before us at the Bar by the parties, in which the expression `public meeting' was interpreted by the Courts of this country or even in England under any parallel provision of law. Under the English Law the Trafalgor Square case in 1887 and Ex parte: Lewis (1888). 21 Q: B. D 191, to which our attention was drawn, are distinguish able. They deal with an altogether different matter and have laid down that there is no right on the part of the public to occupy Trafalgor Square for the purpose of holding public meeting. However, from these two cases the definition of a `public meeting' can be deduced to mean "a meeting which any person may attend". The Dictionary of English Law by Earl Jowitt and Wharton's Law Lexicon, both have adopted this meaning for the expression "public meeting". 1n Oxford, New English Dictionary the word "public" paeans "that is open to, may be used or may or must be shared by, all members of the community; is not restricted to private use of any person or persons, generally accessible or available". A public meeting is, therefore, a meeting to which the public or any class or portion of the public as such is invited or admitted, no matter whether the admission thereto is general or restricted. The members of the public are permitted to attend the meeting which is accessible to them in their capacity and character as the members of the public and the admission is' open to them as such.

6. For the purposes of section 8 of the Ordinance a public meeting is open to the public or "any class or portion of the public" so that even ‑if the admission to the meeting is restricted to a class or portion of the public as such it will nonetheless constitute a public meeting. Do the members of a political organization like the Council of West Pakistan National Democratic Front form a "class or portion of the public" within the meaning of the Explanation to section 8 and what exactly is meant by this expression? Broadly speaking the society is divided into certain well‑recognized and distinct categories or classes. One class of the public is readily distinguishable from the other by certain well‑known characteristics of its own which are more of less of a lasting nature: Each class in itself forms a homogenous group of people and is bound by certain common elements peculiar to it. This classification is not based on mere artificial considerations but is of a natural growth and has developed spontaneously in the texture of the society as it is, So that a large portion of the population can be readily recognised as a separate class by itself. Thus the Europeans, Muslims, Christians, Sikhs and Parsees form some of the classes distinct from each other. It appears to us that the word "portion" of the public is analogous to the word "class" of the public used in that expression. Portion of the public does not mean a conglomeration of people collected at randum with no community of life and with nothing in common between them. It reflects a compact section of the public which is easily discernible as such. It is bound together with some natural and lasting ties and have some common problems of their own to force. In this manner the citizens of Lahore, residents of Mochi Gate or a recognized division of the city; and even the residents of one of the wards in city would' constitute a "portion" of the public within the meanings of the Explanation to section

8. But all this is not strictly true of the members of a political party, big or small. Their grouping together is neither spontaneous nor natural in one sense nor is it based on any geographical considerations. The origin of their association is due to some human factors or exigencies. Their allegiance, howsoever strong, comparatively speaking is unstable, less permanent and may be on account of some passing considerations only. Therefore, the members of a political organization as such cannot be truly regarded as a "class or portion of the public" in the context of the Explanation to section 8 of the Ordinance. Even though they may claim or profess to be the representatives of the public, yet they are known by their affiliation to the organization to which they belong.

7. For a further appreciation of this aspect of the case, it would be helpful to refer to another provision of law under which the expression "any class or section of His Majesty's subject in British India" has received an authoritative interpretation. Section 4 of the Press (Emergency Powers) Act, 1931, prohibits the printing and publication of any material which tends directly or indirectly to bring into hatred or contempt any class or section' of His, Majesty's subject in British India. In Kamal Singh Sircar v. The Emperor (A I R 1937 Cal. 691) the words "class or section" of His Majesty's subject were held to mean ascertainable body of individuals, not an indeterminate body or group, having clearly, defined or non variable characteristics or criteria by which they may be distinguished from any other body or group. In a Full Bench composed of Munir, Bhandari and Sharif, JJ. in the matter of daily Zamindar (Urdu), Lahore, M. Akhtar Ali Khan v. The Emperor (A I R 1947 Lah. 347) this expression again came up for interpretation. In that case one of the published articles to which objection was taken made a scathing attack on Mr. Ghandhi 'the political juggler of India' and attributed murder of 30,000 Muslims and destruction of three crores worth of property to this 'political imposter'. It criticised the conduct of certain other leaders in making the provocative speeches which incited the Hindu to crimes of unparalleled violence in Bihar. It further criticised the 'murderous' policy of the Congress and exhorted Nationalist Muslims to give up their membership of the Congress and to join the ranks of Muslim League. In discussing the implications of that writing, Bhandari, J. in his leading judgment held that a political organization such as the Congress or Muslim League cannot fall within the ambit of the expression "class or section" of His Majesty's subject in British India, and in that connection it was remarked;‑ "Our attention has not been invited to a single authority in which a political organization was declared to be a 'class' of His Majesty's subject. A 'class' or 'section' of His Majesty's subject is a set of persons all filling one common character and possessing common and exclusive characteristic which may be associated with their origin, race or religion. The term 'class' carries with it the idea of readily ascertainable group having some elements of permanence, stability and sufficiently numerous and widespread to be designated a class. It is in this sense that the expression has been commonly understood in this country and it is in this sense that it ought, in my opinion, to be considered. (Vide 10 P R 907 C. R. 3 Lahore 405; A I R 1932 Cal. 649; A I R 1934 Lah. 219; A I R 1940 Bom. 309). I am clearly of the opinion that a political organization cannot fall within the ambit of the expression `class' . . . . ." In this connection the following remarks of Sharif, J. have further elaborated the meaning of the term "class or section" of His Majesty's subject: "That a political party or group is not a 'class' as contemplated in the Press Act admits of no dispute. Any criticism or denunciation of a political body, therefore, cannot produce or promote class hatred. As a necessary sequal an attack on a leader of a political party howsoever trenchant it might be, cannot fall under section 4, Press Act. A leader worth the name must have a following and anything said against him is bound to create anger and resentment among his ardent followers. As they do not constitute a class it is not class hatred. The position of a founder of religion or a spiritual head is fundamentally different from that of a political leader, howsoever great his following might be and howsoever wide respect he might command among the people of his own creed and others. In the case of one the foundation is common faith and in that of the other common political goal and while one is permanent the other is fluctuating . . . ."

8. In another Special Bench case of daily Parbhat, Lahore v. The Emperor (A I R 1947 Lah. 366) under section 4 of the Press Act, Sharif and Bhandari, JJ. have again held that "A political body is not a class or section as the element of permanence which the 'class' or, 'section' requires is wholly absent in it. It is too frequently changing in its complexion, composition and political objectives." But Teja Singh, J. who held the minority view has remarked that if a political party is well‑defined and the number of persons owing allegiance to it is large enough, it can be regarded as a "class" or at least a "section" of His Majesty's subject.

9. Before parting with this subject we have to deal with another aspect of the definition of the term "public meeting" Explanation to section 8 of the Ordinance lays down that "a meeting may be public meeting notwithstanding that it is held in private place and notwithstanding that the admission thereto is restricted by ticket or otherwise". One of the dictionary meaning: of "public" is that which is open to general observation so that any meeting which is held in the open in a public place may be said to be a public meeting. But this wider interpretation is contrary to the express words of the Explanation to section 8 any a meeting held in the secrecy of a private place not open to public view may as well be considered to be a public meeting. Also public‑meeting will not cease to be so merely because admission thereto is restricted by ticket or otherwise. This is not to be the deciding factor. A meeting may as well be a public meeting eve though its conveners have levied an entry fee; say to raise public funds or have regulated the entry of the public by passes in view of the limited accommodation available at the venue of the meeting or in order to exclude some known mischief mongers from the meeting. Therefore, notwithstanding the fact that the entry, to the meeting is controlled by certain regulations, it will constitute a public meeting in every sense if otherwise it is open to the public or a class or portion of the public.

10. To sum up, a public meeting is that which is open to the public or a class or portion of the public in its capacity as such. A political organization may hold a public meeting by extending its invitation to the public or class o portion of the public m general. On the other hand, if such an organization convenes a meeting of the executive to which the admission is restricted to a few of its chosen members by name and which is not accessible to the public or a class or portion of the public as such, it will not constitute a public meeting within the meaning of section 8 of the Ordinance. According to the impugned order (Annexure `C') of the learned District Magistrate, Lahore, admittedly a meeting of the "Council of the National Democratic Front" was scheduled to take place in room No. 1 at Pipals, Lahore, on 9th of February 1964. The admission to this meeting was restricted to the members of the Council only and it was not suggested before us during the course of the arguments that the invitation to that meeting was open to the public as well or that any outsider had a right to participate in it. According to its constitution (Annexure `B'), the Council of the National Democratic Front is the principal and plenary organ and exercises all the powers of the National Democratic Front. It has the powers to add to its members and programme. In addition to all the members of the Secretariat of the National Democratic Front, it consists of a handful of 22 named persons. The petitioner is its Convener. It is further provided in the Constitution that all those persons who attended the National Democratic Front Convention held at Lakham House, Karachi, in January 1963, if they so desire, would be entitled to become the members of the Council of the National Democratic Front: The meeting in question was therefore restricted to the particular members of the Council personally. They were holding their meeting in their capacity as the members of the Council of the National Democratic Front and not the members of the public or any class or portion of the public as such. This meeting must, therefore, be regarded as a private meeting of the party in contradistinction to a public meeting and, in our opinion, section 8 of the Ordinance was not applicable to the case. Accordingly, respondent No. 1 acted in excess of his powers under section 8 of the Ordinance in deputing the two police officials to attend that meeting.

11. Apart from the above, the objection of the petitioner against the validity of section 8 of the Ordinance is fatal and goes to the very root of the case. It is strenuously argued before us that the provisions of this section‑ are ultra vires of the Fundamental Rights Nos. 6, 7 and 15 and are in collision with the "Freedom of assembly'.' "Freedom of association" and the Fundamental Right of Equality of Citizens before law guaranteed by the Constitution of the Islamic Republic of Pakistan, 1962.

12. Fundamental Right No. 6 ensures that every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order. In a way this 'Right is cognate to the Right of movement by which subject to any reasonable restrictions imposed by law in the public interest, every citizen has the right to move freely and go any where he likes and also to the Right of Freedom of Speech and expression in hearing to the citizens of Pakistan. So that the people can go to and assemble at a place and speak freely subject to the reasonable restrictions imposed by law in the interest of the security of Pakistan, public order etc. etc. In U. S. v. Cruikshank ((1876) 92 U S 542) it was remarked that "The very idea of Government, republic in form, implies a right on the part of its citizens to meet peaceably for consultation in respect of public affairs and to petition for a redress of grievances". But absolute and unrestricted individual rights do not exist in any modern State and there is no such thing absolute and uncontrolled liberty. The collective interests of the society, peace, and security of the State and the maintenance of public order are of vital importance in any organized society. Fundamental Rights have no real meaning if the State itself is in danger, and. disorganized. If the State is in danger the liberties of the subjects are themselves in danger. It is for these reasons of State that an equilibrium has to be maintained between the two contending interests at stake: one the individual liberties and the positive rights of the citizen which are declared by the Constitution to be Fundamental and the other the need to impose social control and reasonable limitations on the enjoyment of those rights in the interest of the collective good of the society. For example, in this case the Freedom of assembly is guaranteed by the Constitution to the petitioner. Like every other citizen he has the right to assemble peaceably and without arm. But at the same time this right is not without its limitations imposed by the Constitution. The right is subordinate "to any reasonable restriction imposed by law in the interest of public order". It is here that this Court is very often called upon to hold the balance between the contending interests as its sacred duty and adjudicate upon the reasonableness of the restrictions imposed by law which have entrenched upon the Right. And in case the Court finds that the Legislature in promulgating the law has transgressed the reasonable limits envisaged by the Constitution, it will not hesitate to strike it down as ultra vires.

13. Section 8 of the Ordinance, reproduced in extenso in the earlier part of this judgment, is couched in the widest possible terms. It authorises the District Magistrate to depute one or more police officer not below the rank of head‑constable, or any other person to attend any public meeting for the purpose of causing a report to be made of the proceedings. His powers in this behalf are without any restrictions or control imposed by the law. However; it was argued that the District Magistrate under section 8 of the Ordinance has no power to interfere in any of the proceedings of the public meeting, his nominees are expected to merely sit and take notes of the proceedings at the meeting and do nothing, mote. This, it is contended, does not in any manner go to curtail the freedom of the people to assemble according as they may like and, therefore, section 8 does not constitute an infringement of any of the Fundamental Rights. This argument is devoid of any force. It does amount to a material interference with the enjoyment of the right of the citizens to assemble and discuss things freely if an outsider, much less a police officer is deputed to keep a record of the proceedings of the meeting. It is open to the District Magistrate under section 8 of the Ordinance to depute any person to attend the meeting and for the matter of that there is nothing in this law to prevent him to even depute political rivals to attend the meetings of their adversaries. Indeed, the very fact that the proceedings of a meeting are being watched under the orders of the District Magistrate, is bound to deter people to assemble and discuss things freely, many of them may not even like to attend such a meeting. The powers conferred on the District Magistrate in this behalf are likely to act as a deterrent in the way of the public to assemble together and may even stifle the meeting altogether. In this manner it will materially infringe upon the Fundamental Rights of assembly and association protected by the Constitution. In Daisy Bates v. City of Little Rock (361 U S 516), it was observed that: "Freedom of speech and press and freedom of association for the purpose of advancing ideas and airing grievances are constitutionally protected not only against heavy‑handed frontal attach, but also from being stifled by more subtle governmental interference." In that case the learned Judges cited with approval the following dictum of the Supreme Court of the United States of America laid down in the National Association for Advancement of Coloured v. Alabama (357 U S at 462). "This Court has recognized the vital relationship between the freedom to associate and privacy of one's associations . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident belief." It was further added in that case:" That compulsory disclosure of the membership lists of legal branches of the National Association for the Advancement of Coloured People would work a significant interference with the freedom of association of their members is shown by evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm ; that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw; and that this repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members' names."

14. It may be suggested and in fact some similar arguments were advanced before us by the learned Advocate‑General that section 8‑ of the Ordinance embodies an innocuous provision. Just as every citizen enjoys the Fundamental Right of assembly under the Constitution, the District Magistrate, his nominees and the police officers, as citizens of Pakistan have the same right to attend and participate in any public meeting which is equally open to them and even apart from the provisions of section & there can be no bar in their way to attend the public meeting. 'The position is .not so simple as that and this argument does not take full notice of the various provisions of ‑the Ordinance which go to supplement the powers of the District Magistrate in this behalf. Subsection (2) of section 8 lays down that any order of the District Magistrate passed under subsection (1) shall operate as a direction to the persons responsible for convening and conduct of the meeting to admit free of charge the persons deputed by him. It may be mentioned that under the Explanation to the section a meeting may be a public meeting notwithstanding that it is held in a private place and the admission thereto is restricted by tickets or otherwise. Section 12 of the Ordinance confers vast powers on the Government and the authorities to give effect to the various orders passed under the Ordinance, even by use of such force as may be reasonably necessary to secure obedience to and compliance therewith. There are express provisions in the Ordinance to deal with the specified breaches of the orders passed by the competent authorities. Under section 13 whoever contravenes any provisions of the Ordinance or disobeys or neglects to comply with any order or direction shall, where no express provision is made by the Ordinance for the punishment of such contravention, disobedience or negligence, be punished with imprisonment which may extend to three years or with fine, or with both. Any disobedience of the order of the District Magistrate in the exercise of his powers under section 8 constitutes an offence punishable under section 13 of the Ordinance. Therefore, the powers conferred on the District Magistrate under section 8 of the Ordinance are formidable and any unrestricted use of these powers by him is likely to infringe against the Fundamental Rights of the people.

15. As already mentioned, the powers conferred on the District Magistrate under section 8 of .the Ordinance are not subject to any restrictions. The discretion vested in him to depute any person to attend any public meeting for the purpose of causing a report to be made of the proceedings, is absolute. He is free to act under any circumstances he likes, not necessarily in the interest of public order alone and there are no checks on his powers in this behalf. There is no provision in section 8 to control, and regulate the exercise of this naked power enjoyed by the District Magistrate and keep it under check within reasonable limits in, the interest of public order. As such the section is ultra vires of the Fundamental Rights Nos. 6 and 7 guaranteed by the Constitution. But 'we see no force in the contention of the learned counsel for the petitioner that this section is also violative of Fundamental Right No.

15. It makes no discrimination between citizens and purports to be applicable to all of them equally. Similarly it is not shown to be repugnant to any of the provisions of the Political Parties Act, 1962. Consequently, we have no hesitation in repelling these contentions advanced on behalf of the, petitioner.

16. Before concluding, we are left to dispose of the preliminary objection raised before us by the learned Advocate General. According to him this petitioner under Article 98 of the Constitution is not competent because the petitioner has another adequate remedy provided by law. He maintains that the petitioner will have ample opportunity to defend himself fully in the prosecution launched against him under section 13 of the Ordinance Nr his failure and neglect to abide by the impugned order of the District Magistrate and as such no relief should be granted to him by this Court. But we see no force in this objection. In this application under Article 98 of the Constitution the petitioner .has primarily asked for the enforcement of his Fundamental Rights conferred on him by Chapter 1, Part II of the Constitution and for that the adequate relief can be granted to him by this Court alone.

17. For the reasons discussed above, we accept this writ petition and declare that the impugned order dated 8th/9th February 1964, passed by respondent No.1 and the proceedings initiated against the petitioner for the alleged violation of that order, are without lawful authority and have no legal effect. The parties will however, bear their own costs of this petition under the circumstances of the case. S. Q. Petition accepted.