P L D 1989 Supreme Court 479 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑This leave to appeal petition has been filed by proprietors of several hotels running their business at Quetta against the dismissal by the High Court of their writ petition; wherein an uncontrolled unchecked right to exhibit video films and programmers for their customers, guests and others, was claimed.

2. The writ petition was resisted from respondents' side which included the law enforcing agencies /Police, the Pakistan Television Corporation and several cinema owners of Quetta on various grounds one being that the petitioners were indulging in such illegal activities which also amounted to serious offences. This included a charge amongst others that even those films were being shown which were prohibited in the cinemas and in any case the practice followed by the petitioners contravened many specific laws including the Motion Pictures Ordinance, 1979 and the Rules framed there under as also the provisions of Customs Act, 1969 and Pakistan Penal Code.

3. In view of the submissions made by the learned counsel and the relief sought at the present stage it is not necessary to give the details of the accusation against the petitioners. It would suffice to append herewith as a schedule, one of the complaints made against one of those hotels. It is in the form of an F.I..R. The Schedule so appended shall be read as part of this judgment.

4. The F.I.R. was registered for offences under the Customs Act, and Pakistan Penal Code; but, the proper analysis and trial of the facts stated therein might also reveal several other offences.

5. A learned Division Bench of the Quetta High Court in a detailed and well‑considered judgment took note of all the pleas raised and pressed before them and disposed them of with adequate reasons. However, learned counsel for the petitioners has raised two contentions B and sought one relief as follows:‑ (i) That the petitioners are not committing any offence. However, they are not committing cognizable offence, which would empower the police to take direct action against them. (ii) That if the petitioners exhibit a programmer and they cannot do so by virtue of any provision of Motion Pictures Ordinance, 1979, that law would take its own course; and the Police would thus be not competent to take any action against the petitioners unless the action is taken by a competent authority and the complaint is also made competently under section 18(5) of the Ordinance. Accordingly the learned counsel urged that the Police should refrain', from interfering with the petitioners' business in any manner except in accordance with law. And further that if an illegal action is taken against the petitioners they should be at liberty to proceed against the persons concerned.

6. If the petitioners were not committing any illegality and/or offence they should take up this plea before the forum where they are arraigned to answer an allegation, accusation or to face a criminal trial. Similarly, if the petitioners are not committing any cognizable offence the Police will not treat so and would proceed accordingly. If despite this the petitioners have any complaint against any individual functionary of the State they can proceed against him in accordance with law for infringement of any right.

7. The second argument of the learned counsel also is too wide to be accepted as such. Petitioners cannot claim an uncontrolled unregulated right to exhibit anything/film in any manner before any audience in their business premises. Learned counsel admits that if the allegations made against the petitioners are kept in view their conduct might fall under the definition of several offences and other illegalities. He is, however, right that no accused or offender should be dealt with except in accordance with law. The argument that the police has not power to stop/prevent any illegality amounting to an offence if it is being done in their presence or within their view or knowledge cannot be accepted as presented. If however, in so doing they (police) themselves commit an illegality /offence, this can be brought to the notice of the higher law enforcing agencies, the other relevant Government functionaries and,/or the Courts for proper redress against the so‑called Police highhandedness. This might, if other remedy fails, include at proper stage a private complaint against a D Police Officer who commits any offence, of course in accordance with the prescribed procedure. The plea that the action to be taken against the petitioners has to be by a competent authority and in a competent manner again involves questions of fact which when arising, would be dealt with by the forums and Courts concerned. It is not possible to issue a general order or writ in favour of the petitioners in this case.

8. In the light of the foregoing discussion excepting the point made by the learned counsel, underlined in Para No.5 supra which is irresistible and in fact has not been resisted by any of the learned counsel appearing for the respondents' side, this petition fails; and with these remarks is disposed of accordingly.