1999 P Cr (PLP)

This order shall not apply to the Armed Forces and Police Personnel in uniform. (4) This order shall come into effect from 1stMay, 1997 and shall remain in force for a period of two-months. (5) This order shall be given wide publicity by publication in the local newspapers, in the office gazette and announcement over Radio and Pakistan Television. (Sd.) Shahzad Hassan Pervez). Secretary to Government of Punjab, Home Department." The said bail was extended from time to time by various notifications of the Government. the last being that of 5th of December, 1998.

5. Under section 144 of the Code of Criminal Procedure Code. 1898, a District Magistrate Sub-District Magistrate or any other Magistrate especially empowered by the Provincial Government if of the opinion that there is sufficient ground for proceeding for immediate preventive action and a speedy remedy, such Magistrate may by a written order direct any person to abstain from doing a certain act in order to prevent a danger to human life safety or/and a disturbance of the public tranquillity. By subsection (6) the Provincial Government may also step in. in the cases of a danger to human life or safety where such in order is to last more than two months. The use of the motorcycles m a number of incidents of terrorism and other heinous offences by pillion riding particularly in the thickly populated areas with advantage of speedy -nobility and escape seem to have been taken the consideration by the District Magistrates and the Provincial Government while imposing/ extending the ban. The notifications/orders by the Government have relevance and nexus with the safety of human life and public tranquillity. The Government and their agencies must have found out the modus operandi which was commonly employed by the terrorists and other perpetrators of heinous offences by the pillion riding on motorcycles. A motorcyclist is naturally in a more advantageous position than a four-wheel driver to find an escape route even if there is a traffic-jam. narrow lane etc., thereby minimising the risk of being held-up or hauled up. The impugned action by the State is a temporary restriction being an emergency measure and is not likely to continue for an indefinite period. The notification under section 144, Cr.P.C. is of a regulatory rather than confiscatory in nature. The motorcycles of their owners have not been acquired. Only the use thereof has been regulated in a particular manner so as to secure the larger interests of society. There is no question of any violation of Article 24 of the Constitution the full play whereof Can also be restricted by the State by or under the law during the proclamation of emergency in the country by virtue of Article 233 of the Constitution of Islamic Republic of Pakistan.

6. The question of a similar ban was directly examined by a learned Division Bench of the Sindh High Court in the case of Altaf Shakoor and 4 others (supra) aptly relied on by the learned Advocate-General. It was held that prohibition of pillion riding on scooters/motorcycles was not unconstitutional or otherwise invalid.

7. In the cases of Zaheeruddin and others v. The State and others 1993 SCMR 1718. Khurshid Ahmad v. Government of Punjab PLD 1992 Lah. 1 an order under section 144, Cr.P.C. prohibiting the Quadianis from holding a religious procession which was likely to cause danger to public peace, tranquillity and danger to human life was sustained. It was observed that if the authorities had taken action under a valid piece of legislation in the interest of law and order then unless it could be shown that the same was taken mala fide or without any lawful factual justification, the question of denial of fundamental rights of freedom of religion as guaranteed by Article 20 of the Constitution would not arise. In Karachi Building Control Authority and another v. Saleem Akhtar Rajput and 2 others 1993 SCMR 1451, the Honourable Supreme Court has taken the view that in the case of a conflict between a personal fundamental right and the larger public interest, the personal right must yield to the larger interest of society.

8. That nature, scope of amplitude of section 144, Cr.P.C. had been considered by the superior Court in a number of cases. In Visvanadha Rao and others v. Emperor AIR 1928 Mad. 1049 a Full Bench of the Madras High Court made following observations:-- "The preservation of the public peace is a function of the Government and in the performance of that function, it may be necessary for them to override temporarily private rights. Where there is a conflict between the public interest and a private right, the former must prevail."

9. In Ram Gopal Goenka v. Narayan Das Chandra AIR 1928 Cal. 446, a Division Bench of the Calcutta High Court has held that though a person has an absolute right to use his property as he pleases, yet, if the mode of enjoyment of his property innocent and lawful through it might be, results or tends to result, in a series of acts which are likely to lead to a breach of the peace, an order under section 144, Cr.P.C. restraining the person temporarily from enjoying the property in that way is amply justified. In Harihar Singh and others v. Emperor AIR 1934 Pat. 463, it has been observed that convenience is not necessarily a good criterion and, still less a general criterion. High Court should be astute not to interfere with the exercise of his discretion by the District Magistrate in, respect of which of the powers conferred on him by statute enabling him to ensure the peace of his district he should exercise in a particular case. He is necessarily in a better position to say which of those powers called for by the situation confronting him at the crucial moment. It is enough that the action, under section 144, Cr.P.C. which he is taking is not illegal or definitely improper. In Hansraj Prasad Singh and others v. Abdul Jabbar arid another AIR 1935 Pat. 461, an order by the District Magistrate under section 144, Cr.P.C. against a person legally holding a but on his land was upheld with reference to the preservation of public peace and tranquillity in the circumstances of the case. It was further hell that in a certain situation the exercise of a lawful right can he regulated for the preservation of the public tranquillity. In Shrimati Jasoda Lekhraj and others v. Emperor 182 Indian Case 698 (Sindh) it was observed that the Court was always very unwilling to interfere in the case on orders passed under the preventive sections of the Criminal Procedure Code. Those orders were largely of an administrative nature; they were concerned with the maintenance of the public peace and the prevention of breaches thereof for the maintenance of which the District Magistrate was responsible and the needs of which he as the responsible officer on the spot was presumably in the best position to know.

10. In P.T. Chandra, Editor Tribune v. Emperor AIR 1942 Lah. 171, a Full Bench of this Court took the view that although the opinion of a District Magistrate under, section 144, Cr.P.C. was not absolute but the same was entitled to a great weight. In K. Murugappa Mudaliar and others v. Kuppuswami Mudaliar and others AIR 1949 Mad. 212, Abdulkadir Lebba Abdul Rahiman and others v. State and 2 others AIR 1952 Tr. Cochin 251, it has been held that in passing orders under section

144. Cr.P.C., the authorities will no doubt pay due regard to the observations contained in civil Court's judgment with regard to private rights but the paramount consideration should be that of maintenance of law and order. In Babutal Parate v. The State of Maharashtra and others AIR 1961 SC 884, the Supreme Court of India examined the Constitutional validity of the provisions of section 144, Cr.P.C. and the nature of the orders passed thereunder. It was held that some of the objects securing which an order under section

144. Cr.P.C. could be passed were to prevent obstruction annoyance injury etc. in the public interest and the maintenance of public order which was a reasonable restriction within the meaning of the Constitution of India. It was further held that the anticipatory action under section 144, Cr.P.C. was permissible and did riot infringe the fundamental rights as long as is was a reasonable restriction and was not disproportionate to the situation: sought to he prevented. Similar view was taken by the Indian Supreme Court in the subsequent cases of Madhu Limaye and another v. Sub-Divisional Magistrate. Monghyre and others v. State of U.P. and others AIR 1981 SC 2198.

11. For the foregoing reasons. I am not persuaded to interfere with the impugned action of ban on pillion riding on motorcycles/scooters being of a short duration having nexus with the maintenance of public safety and, tranquillity.

12. This writ petition being devoid of any merit is dismissed in limine. Q.M.H./M.A.K./W-40/L. Petition dismissed.