P L D 1967 Karachi 408 (PLP)

FARUQUI, J.‑These five constitutional petitions have been filed by Messrs Abid Ali Mirza. Nisar Ali Mirza, Mirza Zafar Ali, Mirza Asif Ali and Malik Muhammad Latif, each one of whom was served by an order of the Provincial Government of West Pakistan dated 11th August 1966 in exercise of the powers conferred by clause (a) of subsection (1) of section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960 directing each one of them that they shall not enter, reside or remain in any part of the district of Karachi for a period of 6 months with effect from the date of service of this order. This order was served upon the petitioners on 14th August 1966, in consequence of which they were externed from the district of Karachi. Simultaneously they were also served with the memorandum of the grounds for the order and they were informed that they were at liberty to make representation to the Government against the said order. The grounds may be conveniently reproduced here:‑ "That you have, in the name of 'Argous Cultural Society'. Karachi, opened an Organized Grand Tambola, where in trio garb 6f playing 'Housie' (Tambola), you have been running a public gambling den where thousands of people residing in Karachi both male and female, gather frequently and gamble. The modus operandi adopted by you was that a table was placed on which were written numbers 1 to

10. People who collect there wage their money on any number of their choice. One man from among the persons present is given an airgun and shoots from a distance at a safety pin on a hanging board. The numbers on the board are not visible from the shooting place. The pin strikes one of the numbers, which is declared by your Organiser as the winning number and those who have waged on that particular number are declared as the winner and get double the amount from you. The money placed on the remaining nine numbers is forfeited to you, the Organiser. The manner in which this game is played is obviously not a game of skill but purely a game of chance. Women of questionable character who gather at your aforesaid gambling den freely associate with the person who are present there and contraband narcotics are sold freely to those who buy it. The aforesaid activities of yours have created public resentment in the locality and in the School for the Blind, which is a public education institution and should be immune from the aforesaid vices. Furthermore, because of the aforesaid activities of yours and the frequenting by women of questionable character of the premises where the said activities are being carried on, there is every likelihood of brawls taking place leading to breach of the public peace. Several residents of the localities have been agitating by applications and telegrams addressed to the authorities for taking effective action and stopping .the aforesaid activities. The situation deteriorated to such an extent that the public at large threatened to stage open demonstrations and take effective steps. As you are not in a mood to close down the gambling den, a 1st Class Magistrate was deputed to visit your den and report facts. The said Magistrate visited your gambling den where gambling was going on in the garb of Tambola and witnesses the entire procedure as to show gambling was played there including the shooting from the airgun. He bas reported in detail of the game played in the premises run by you by his report dated 22‑1‑1966."

2. Against the said five petitioners similar order of externment under the said provision was, in the first instance, passed by the District Magistrate of Karachi. on 22‑1‑66 in the late hours of the night which was served upon them and they had been externed from the district of Karachi. The grounds for the said order were furnished to the petitioners by the District Magistrate sometime after 5th February 1966, whereupon five similar petitions had been filed by them in this Court being Petitions Nos. 59, 64, 65, 66 and 67 of 1966. These were disposed of by a Division Bench of this Court consisting of Khamisani and Raymond, JJ. by their order dated 28‑3‑

66. A number of grounds had been raised in that case which were common to all the five petitions but the grounds upon which their Lordships declared the aforesaid order of the District Magistrate to be in excess of his powers, illegal and of no legal effect, were two. Firstly that the satisfaction of the District Magistrate mentioned in the impugned orders was not his satisfaction but that of the Commissioner of Karachi reflected through the District Magistrate, Karachi and indicated on record as the satisfaction of the District Magistrate will not be the satisfaction contemplated by section 5 (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, and, therefore, the order was not in compliance with the said provision and was for that reason illegal and of no legal effect. The second ground which prevailed with their Lordships was that tile ordinary residence of the petitioners was in Karachi and, therefore, the order of the District Magistrate externing them from the whole of the district of Karachi was in excess of the powers conferred on him under section 5 of the Ordinance and was in disregard of the proviso to section 5 (1).

3. The District Magistrate of Karachi appealed to the Supreme Court against the order of the High Court (Civil Appeals Nos. 25 to 29 of 1966). These appeals, all of which were directed against the same order of the District Magistrate were dismissed by the Supreme Court by judgment dated 13th April 1966. Their Lordships did not agree with the High Court upon the first ground, viz., that the satisfaction in this case was not that of the District Magistrate but of the Commissioner. Their Lordships observed that though the Commissioner had sent a letter to the District Magistrate, Karachi, drawing his attention to what he described as the gambling activities of the respondents and the numerous complaints that he had received against them and requested that action be taken, yet the District Magistrate did not take such action immediately but deputed an Additional City Magistrate to make an inquiry and it was on the receipt of his report that he passed the impugned order. Their Lordships concluded that in the circumstances it eras difficult to sustain the finding of the High Court that the District Magistrate had been unduly influenced by the Commissioner's letter and was not a free agent in the matter. On the .second point, however, after a full discussion of the evidence on record on the question of the ordinary residence of the externees, their Lordships upheld the finding of the High Court that the ordinary residence of the petitioners before them was at Karachi and, therefore, the District Magistrate in externing them from the whole district had acted in excess of his powers conferred on him under section 5 of the Ordinance read with the proviso to the said section.

4. On the dismissal of the appeal of the District Magistrate by the Supreme Court on 13th April 1966 the petitioners came back to Karachi and restarted their show in the same premises adjacent to the School for Blind. On 10th May 1966 they sent an application to the Commissioner (Annexure `P') stating therein that in view of the judgment of the High Court in the aforesaid petitions the organising of the game of housie for the members of the society was no gambling and as such the society has decided to re‑start the pastime for its members and as such it was necessary for them to use loudspeakers. Permission in this regard was sought and assurance was given that there was no intention to commit breach of any laws of the land and their activities would be confined for the pastime of their members only. The Commissioner forwarded this application to the District Magistrate with a note stating that it may be ascertained whether it was a bona fide club. It is not clear from the record whether this permission was granted by the District Magistrate but there is no doubt that 'the petitioners' so‑called society re‑started its show and continued it. Again on 29‑6‑66 an application was sent by the petitioners to the. Commissioner (Annexure `S') in which reference who again made to the decision of the High Court and that the members of the society were entertained at the premises, by the game of Tambola and gun shooting. There was also a reference to the injunction obtained in a civil suit filed at Lahore that the authorities should not interfere with the petitioners in the carrying on of these games, which injunction was still in force. After mentioning several other matters it was stated that some rivals of the petitioners' society were threatening the petitioners to poison the ears of the Karachi Administration and for that reason 4 prayer was made that the alleged rivals should not be permitted to carry out their design and lastly it was stated that "the applicant also invites the authorities to pay a surprise visit at the site of the entertainment of the said society to ascertain the truth of the applicant's state ment". Copies of this application were sent to the D. I.‑G. Police, Deputy Commissioner and Superintendent of Police, East Circle, Karachi. No action was taken upon this application and it was stated during the hearing by Qazi Akhtar Ahmed, the Additional Advocate‑General appearing for the Provincial Government, that this application had been sent to the Court of the A. D. M., Karachi, where the prosecution of some of the petitioners under the Gambling Act in respect of what had been witnessed by Mr. Puri, A. C. M. on the night of 22‑1‑66 was pending. We had sent for the record of this case and we found that this application was on the file.

5. According to the petitioners they carried on their activities until the impugned order of the Provincial Government dated 11th August 1966, was served on the petitioners on 14‑8‑66 in pursuance of which all five of them were externed from the district of Karachi. This order may now be reproduced:‑ "Order No. 9‑14‑H‑Spl:1/66 Whereas on information received and inquiries made by the Karachi Administration, the Governor of West Pakistan is satisfied that Mirza Asif Ali, son of Nazar Husain, residing at 7/167, Delhi Sodagir Road, Karachi, has acted and "is likely to act in a manner prejudicial to public interest and the maintenance of public order; And whereas, it is necessary for the purpose of preventing the said Mirza Asif Ali from acting in the manner as aforesaid, to prohibit him from entering, residing or being in any part of the District of Karachi; Now therefore, in exercise of the powers conferred by clause (a) of subsection (1) of section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (Ordinance No. XXXI of 1960), the Governor of West Pakistan is pleased to direct that the said Mirza Asif Ali son of Nazar Husain shall not enter, reside or remain in any part of !he District of Karachi for a period of six months with effect from the date of service of this order. By order of the Governor of West Pakistan (Sd.) Secretary to Government of West Pakistan, Home Department." The validity of this order was questioned before us by Shaikh Khurshid Ahmed, the learned counsel for the petitioners on various grounds which we shall now proceed to examine.

6. The first contention of the learned counsel for the petitioners was that this order was passed by the Provincial Government upon the material which was supplied to them by the Karachi Administration which was hostile to the petitioners and the order, therefore, suffered from the absence of bona fides. In support of this ground and also in justification of his stand that whatever the petitioners bad been doing was an innocent lawful activity, the learned counsel referred to us the various proceedings which had taken place between the petitioners and the district authorities of Karachi and also some proceedings taken at Lahore. We shall briefly refer to them. The first proceeding arose out of a writ petition (Writ Petition No. 176/60) filed by the Argus Cultural Society against the District Magistrate. Karachi and the S. H. O., Police Station Garden Road, Karachi. This petition was disposed of by a short order by a Division Bench of this Court on 24‑8‑

60. It was conceded on behalf of the respondents that Tambola could be played by members of the club without licence. It was, however, contended that the respondents were empowered to interfere if this condition was violated. Subject to this it was stated that the respondents had no objection to the writ being issued. The Court then recorded the following order: "We accordingly order that the respondents would not interfere or stop the petitioners from playing tambola so long as the petitioners observes the law or conditions imposed by law." Another petition (Writ Petition No. 548/61) by the said society against the Superintendent of C. I. D. Police also tamely ended somewhat in the same fashion as the previous petition and upon certain statements made by the counsel for the petitioners and the Assistant Advocate‑General, the following order was recorded:‑ 'The conclusion in that members of the Club are conceded to be entitled to play any games they like so long as they do not do anything which may amount to transgression of any of the provisions of law, particularly, according to Mr. Halim, of the definition of 'common gaming house as defined in section 3 of the Gambling Act. In these circumstances, there is no question of any writ being issued. The clarification that has been made during these proceedings appears to be satisfactory to the petitioner, and the petition is disposed of accordingly without any order for issuing any writ and as to costs." Another writ Petition was filed at Lahore by A. A. Mirza, one of the petitioners before us (Petition No. 318/63). The occasion for filing this petition was that a no‑objection certificate which had been issued by the District Magistrate, Lahore permitting the game of shooting had been cancelled. This petition was withdrawn because it was stated that the licence was restored. About the same time a civil suit was filed in the Court of a Civil Judge at Lahore against the Province of West Pakistan and the District Magistrate Lahore, in which strange kind of declarations had been sought and an injunction was prayed restraining the defendants from interfering with the playing of the games arranged by the plaintiff in that suit. The plaintiff was the same person, namely A. A Mirza who is stated to be the President of the Argus Cultural Society. Upon a certain statement made by the counsel for the defendant a temporary injunction was granted by, the Civil Judge on 7‑10‑

63. This suit was later on transferred to the High Court but it is stated that the said injunction is still continuing. The next proceedings relate to an order passed by a Magistrate at Karachi under section 133, Cr. P. C. The petitioners' society was holding its show in the K. P. T. area of Karachi and the said order was passed against it on the ground of nuisance. This order was challenged by an application to this Court under section 561‑A, Cr. P. C. When the case came up for hearing Mrs. Salima Nasiruddin, the learned Advocate appearing for the State, made a concession that the order was illegal as the games of gun‑shooting and Tambola do not amount to a trade of public gambling and further that even if a different view was taken section 133 Cr. P. C. would not apply. A learned single Judge of this Court by his‑order dated 29‑6‑63 in Criminal Misc. Application 274/65 allowed the petition and quashed the order of the Magistrate passed on 12‑6‑65 and the entire proceedings based on it. He observed that he agreed that the said games do not amount to gambling as was stated by the learned Sub -Divisional Magistrate in the impugned order. After this the next action in respect of this society and the petitioners was taken by the District Magistrate, Karachi when these petitioners were externed by his order dated 22‑1‑66 which, as has been stated above, was quashed upon the technical ground that the District Magistrate did not have the jurisdiction to extern the petitioners from the whole of the district of Karachi.

7. From the proceedings two assertions were made before us. Firstly, that the games of Tambola and gun‑shooting bad been found to be a illegal and innocent activity and in so far as the petitioners had been doing nothing else than what was permitted by law the preventive action by means of the impugned order was an abuse of power and, therefore, not in good faith. Secondly, that these proceedings showed that the Karachi Administration had been hostile to the petitioners and, therefore, no order passed upon a report by the said Administration could be said to be a bona-fide order.

8. With regard to the first point we would like on our part to make it, abundantly clear that this Court has not held that the game of tambola, otherwise described as housie or gun shooting involving wagering and betting, would not amount to gaming within the meaning of the term as defined by the West Pakistan Prevention of Gambling Ordinance, 1961 regardless of the manner in which the said games are played. Nor can it be held that those who organise and hold such games cannot, regardless of how and where the game is played and of the profit or gain which they make out of it, come within the mischief of the said Ordinance. If any such impression is gained by any of the orders passed in the proceedings referred to above we would like to dispel it. We would like to add that no Court can validly declare something to be legal which offends against any provision of law. If the ingredients of an offence as required by the said Ordinance are established in respect of a particular activity, the keeper of the gaming house as well as those who are found there would be liable to punishment as provided in the Ordinance. W would add that the fact that at one time the petitioners may have been carrying on an activity which might not have been an offence can be no guarantee that on another occasion what they may be doing does not come within the mischief of law. For instance, if what is stated in the report dated 22‑1‑66 of the Additional City Magistrate Mr. Puri is established there can be no doubt that it would come within the mischief of the penal provisions of the Ordinance. We do not, therefore, agree with the learned counsel for the petitioners that what happened in the proceedings stated above is a guarantee of the innocence of their activities at the particular time. With regard to the contention that these proceedings show the hostility of the Karachi Administration towards the petitioners and would, therefore, render the order passed on their report to be lacking in bona fides it would be sufficient to say that no ill‑will or malice has been imputed to any single member of the Karachi Administration. No mala fides have been established nor has it been established that the action taken by the Karachi authorities was at the instance of any alleged rivals of the petitioners. Having said this we would like to add that it appears to us to be strange that though the authorities had been questioning the activities of the petitioners they did not think it fit to take the proper action which would be the prosecution of the wrongdoers under the Prevention of Gambling Ordinance. Mr. Kazi, the Additional Advocate‑General, stated that this was due to the fact that at the relevant time some of the members of the Administration were mixed up with the petitioners. If that is so, the least that we can say is that it is regrettable. We, therefore, repel the first contention raised by the learned counsel for the petitioners.

9. The next contention raised was that in so far as the petitioners had made a representation to the Provincial Govern ment against the order of externment passed by the District Magistrate of Karachi on 22‑1‑66 in which they had contested the correctness of the facts upon which the accusation was made and the order was passed, the Provincial Government should have heard the petitioners before passing the impugned order. We are not impressed by his argument because the petitioners having challenged the validity of the order of the District Magistrate by a petition under Article 98 of the Constitution, which petition was accepted by the High Court, and the District Magistrate having filed an appeal before the Supreme Court which maintained the judgment of the High Court on the' ground of the extent of the territorial jurisdiction of the District Magistrate, the representation made by the petitioners to the Provincial Govern ment had become infructuous. The mere fact that such a representation had been made did not oblige the Provincial Government to give a hearing to the petitioners before passing the impugned order. No hearing is contemplated by the provisions of the Ordinance and we do not think that an order passed without such hearing can on that ground alone be effectively Challenged.

10. It was next contended by Mr. Khurshid that the Provincial Government had acted on the out‑dated and out‑dated report of Mr. Puri dates 22nd January 1966 and did not consider the conduct of the petitioners after they had restarted the show on the dismissal of the appeal of the District Magistrate by the Supreme Court. It was urged that before the Provincial Govern ment arrival at its subjective satisfaction all the material had to be placed before it and the authority passing the order had to apply its mind to all the facts and circumstances of the case. It was pointed out that when the petitioners restarted the show they had informed the Commissioner of it by their application dated 10th May 1966 and had asked for permission for using a loudspeaker and thereafter another communication was sent on 29‑6‑66 in which the local authorities had been invited to pay a surprise visit and see for themselves that the petitioners were not doing anything illegal. To these two applications reference has already been made by us earlier in this judgment. It was admitted by the Additional Advocate‑General that no further inquiry was made by the Commissioner or the District Magistrate after the petitioners had restarted their show. He further stated candidly that from the file of the Provincial Government it appeared that there was no material before them other than the report of Mr. Puri of 22nd January 1966 and the Commissioner's letter of that day which he had addressed to the District Magistrate. We then enquired from the learned Additional Advocate‑General as to the circumstances in which the impugned order was passed, and he stated that after the order of the Supreme Court the whole file of the case was sent for by the Provincial Government. There was nothing in the file of the Provincial' Government that they received any material in addition to what was before the District Magistrate when he passed the first order of externment on 22‑1‑

66. He added that after receiving the file the Provincial Government through an important person orally enquired from the Commissioner and the District Magistrate whether there was still any need for an order of externment and upon the latter saying that it was necessary the Provincial Government passed the impugned order. From the above it would be clear that the facts are not in dispute. The material upon which the Provincial Government passed the impugned order has been clearly stated before this Court. The question which then arises is whether in the circumstances the order was validly passed and whether It is open to this Court to interfere with it. We agree that the satisfaction contemplated by the Ordinance is the satisfaction of the authority which passes the order under section

5. At the same time it cannot be disputed that before such an order is passed the authority has to apply its mind to all the material which is relevant and to which its attention must be drawn. In the present case, the Provincial Government itself did not make any inquiry. We have no doubt that it could act upon the material furnished to it by the District authorities. The question is, "was all the material Placed before the Provincial Government." The grounds which have been furnished by the Provincial Government and which have been reproduced in the opening part of the order are carbon copies of the ground which were furnished by the District Magistrate. But the order of the District Magistrate was passed on 22‑1‑

66. Thereafter when the petitioners restarted their show they made two written representations in which they asserted that their activities were entirely legal and innocent. In the latter application the authorities were invited to pay surprise visit so that the truth of the statement made by them could be checked. It is, however, a matter of admission that neither any such visit was made nor was t any further inquiry held by the District authorities in the nature of the activities of the petitioner which they had commenced from May 1966. It may well be that what they ‑ were in fact doing was still objectionable and in contravention of the laws of the land. But one would expect that before such a drastic action such as an externment order is passed such a claim, as was made, would be put to test. But be that as it may, the important point is that when the Provincial Govern ment enquired from the District authorities whether the necessity for passing a fresh externment order was still present, the District authorities without making any further inquiry informed the Provincial Government that such an action was necessary. It may have been their view that the petitioners were incorrigible, but in any case it was essential that they should have informed the Provincial Government that the petitioners after restarting the show had asserted that their activities were completely legal and they had invited the authorities to pay a surprise visit and check. If these facts had been placed by the local authorities before the Provincial Government and the authority passing the order applied its mind to it and then took decision in favour of externing the petitioners it would have been difficult to successfully challenge their action in view of the nature of the law and the limitations of this Court in the matter of judicial review of such an action. But, as has been pointed out, all the material was not placed by the local administration before the Provincial Government, may be inadvertently, and the Provincial Government was thus not in a position to apply its mind to the material which was available in August 1966 when the impugned order was passed. Even if the local authorities had made further inquiries themselves and made a report of it to the Provincial Government the objection which is now being effectively pressed could not have been pressed. It may be pointed out that thin is not one of those cases where a person or body of persons are accused of subversive activities indulging into secret designs so that it might be said that their claim of innocence or legality could not be put to test. Admittedly, the Petitioners were engaged upon holding a public show in a place which they euphemistically described as a club though anyone could get admission to it by paying an extra rupee, therefore it could hardly be said that their action was so secretive that the ordinary course of law could not reach it. If there premises had been visited it would have been known whether they were indulging in unlawful acts and if it was so found action under the ordinary laws could have been easily taken. Of course, it would still be within the powers of the Provincial Government to take preventive measure if they were satisfied that public interest demanded it. It will be seen that when the Provincial Government passed the impugned order and which was done upon the report of the local authorities they did not have all the material before them which it was necessary for them to examine and apply their mind to. Even the District authorities had made no further inquiry after 22nd of January 1966, nor had they received any report of public resentment after the petitioners had restarted their show in May 1966, nor had they visited the place even when they were asked to do so nor wren the Govern ment after the dismissal of he District Magistrate's appeal and on receiving the case file inquired from them whether it was still necessary to take action under section

5. It must be remembered that under the said section the Government had to be satisfied that with a view to preventing the petitioners from acting in a manner prejudicial to public safety, etc. it was necessary to pass an order. That being the requirement of law, the Government had to have all the necessary material placed before them, which they would have to examine and apply their mind to. This, as has been shown, has not been done. We, therefore, declare the impugned orders in the case of all the five petitioners were not validly passed and are of no legal effect. We accordingly allow all the five petitioners. There will be no order as to costs.

11. In the course of the hearing we had sent for the record of the criminal case under the Prevention of Gambling Ordinance which is pending in the Court of the Additional District Magistrate in respect of the raid carried out by Mr. Puri on the night of 22nd January 1966. We noticed that the case could not mane any headway because either one or the other accused were absent on the hearings which took place after the first of June 1966. We direct that the Court which is seized of that case shall now issue process to all the accused and pursue it vigorously and decide it as expeditiously as possible. K.B.A. Petition accepted.