P L D 1976 Lahore 755 (PLP)

The facts which form the background are that the petitioner is a resident of village Sheenbagh Khurd, Tehsil and District Campbdlpur. 'He applied on 20th August 1974, to the District Magistrate, Campbellpur for permission to take out the procession of Zuljinah, Allam and Tazia during the Muharram. Vide his order dated 4‑1‑1975, the application for grant of license to take out the procession was rejected by the District Magistrate, with the remarks "in view of the report of the Superintendent of Police, Campbellpur, who conducted inquiries into the case, the licence applied for is not granted." The above‑mentioned order is challenged by this writ petition.

2. The law governing the matter is enacted in section 30 of the Police Act of 1861. The relevant part of this section reads as follows: "

30. Regulations of public assemblies and processions and licensing of same.‑(1) The District Superintendent or Assistant District Superin tendent 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 person 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 the judgment of the Magistrate of the district, or of the sub‑division of a district, if uncontrolled by likely to cause 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 licence. (3) Can such application being made, he may issue a licence specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to like place and otherwise giving effect to this section . . . . . ." A close reading of the above provisions of law shows that clause (1) of section 30 is intended to prescribe the routes by which the processions may pass, namely, on the public roads or in the public streets or thoroughfares and also prescribe the time at which such procession may pass. The intention appears to be that in order to enable adequate measures to be taken for the orderly movement of the procession the authorities may prescribe the most. suitable route and time in this regard. Clause (2) of section 30 shows that if the District Magistrate is satisfied, in his judgment, that in case the procession is not controlled, there is likelihood of breach of peace, he can require the persons interested in taking out the procession to apply for a licence. This would show that the taking out of a procession, even in case where breach of peace is apprehended, is not forbidden under section 30 of the Police Act. The only restriction laid down where a breach of the peace is apprehended is to require the organisers of an assembly or a procession to apply for a licence, which shall be granted, for it does not stand to reason that the District Magistrate shall ask the organisers of the procession to apply for a license and when they do so, he shall refuse to grant it. He may impose conditions, and these are detailed in the subsequent clause, viz clause (3). The conditions, laid down in clause (3) which can be imposed while issuing a licence for the taking out of a procession are that the names of the licensees may be specified (so that responsible persons take out the procession). Other conditions on which the procession is permitted such as that no one shall carry arms or raise any particular slogans etc., can also be laid down. In short, any condition necessary for the orderly taking out of the procession can to prescribed. In other words, while the right to assemble and to take out a procession is recognised, provision is made for measures to be taken to see that in the exercise of the said right public order is not disturbed. The keeping of order is not to be secured by refusing the citizens from assembling and forming a procession or by confining them to their own houses. 1f this was done, the necessity for securring the order would not arise. The policy of the Police Act is to equip the authorities with sufficient powers to take adequate measures to maintain law and order, without taking away the rights of citizens of assembly and forming processions. At any rate, the right to assemble and form processions is not forbidden under section 30 of the Police Act, though this object could conceivably to achieved by resort to some other laws, such as by invoking the provisions of section 144, Cr. P. C. The conclusion is that the contention of the learned counsel for the petitioner that the taking out of procession cannot altogether be forbidden under the Police Act, is sound. Furthermore any instructions issued which run counter to the provisions of the Act are of no mail. The impugned order is, therefore, not sustainable in law.

3. The turned counsel appearing on behalf any the Distract Magistrate relied upon the judgment of the Supreme Court in Mian Muhammad v. Government of West Pakistan 1970 S C M R 645 , in which their Lordships of the Supreme Court while interpreting the provisions of section 30 of the Police Act, after observing that processions cannot be banned altogether under the provisions of that section, went on to observe, "but that does not mean that licence to take out processions can never be refused to any one on any ground that the number of processions to be taken out in any particular area cannot be regulated under any circumstances. The expression "he may issue a licence" occurring in section 30 (3) of the Police Act implies that in a fit case licence may not also be issued to any particular appellant. In the instant case, for from imposing any ban on taking out processions, a licence was issued to a co‑villager of the petitioner for taking out Muharrarn processions. Although the petitioner's application for licence was refused, he was not forbidden to participate in the processions permitted to be taken out by his co‑villager."

4. This case is distinguishable. In the said case a procession was already being taken out in the village wherein the petitioner therein had applied for a licence and it was held that the said petitioner could join the other procession. But in this case, there is no other person who has applied for taking out a procession in the village. Hence the dictum in the above noted case is not applicable.

5. The overall result is that the order of the learned District Magistrate, refusing the licence to the petitioner to take out a Muharram procession is declared to be without lawful authority and of no legal effect. Under the law, he is under an obligation to issue a licence to the petitioner. However, he is fully competent to impose any condition that may be necessary to ensure that no breach of peace occurs.

6. In view of the foregoing, this writ petition is accepted, but no order as to costs. S' Q' Petition accepted.