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MST. FAIZ MAI versus HOME SECRETARY

Muharram procession, prerequisites - In order for the procession to take place, a licensee must have certain property in the area because it was the consent of the property owner that required the procession to be removed from its place. The procession participants walk on public roads and streets, therefore, the issuance of a license will mean ownership of any property

P L D 2017 Lahore 896

Before Ali Baqar Najafi and Abdul Sattar, JJ

Mst. FAIZ MAI—Appellant

versus

HOME SECRETARY and others—Respondents

I.C.A. No. 455 of 2015, decided on 25th September, 2017.

(a) Police Order [22 of 2002]—

-—Arts. 120 & 121—Police Act (V of 1861), Ss. 30 & Constitution of Pakistan, Art. 20—Right to take out a religious procession—Licnese ' for Muharramprocession, issuance of—

Principles.

Following are the principles relating to issuance of a license for Muharram procession:

(a) Under Article 120 of the Police Order, 2002 it was the head of District Police or Assistant or Deputy Superintendent of Police who was

empowered to issue or refuse the license for the Muharram procession.

(b) The corresponding section 30(a) of the Police Act, 1861 or the whole scheme of law did not mention the Home Secretary as competent authority to grant or refuse such license.

(c) Minority sects (having less population) were not debarred from indulging into lawful religious practices as it was the responsibility of the State to protect enforcement of Fundamental Right under Article 20 of the Constitution, as long as they did not infringe into the rights of other communities.

(d) In rare cases the license may be refused but such refusal could not be permanent and would be only for a particular occasion.

(e) The police was required to be vigilant in finding out the programme of procession being taken out.

(f) The requirement of license was for procession on new routes.

(g) The authorities while dealing with such applications (for > issuance of license) shall apply their mind and abstain from dealing with

it arbitrarily or capriciously and shall remain even handed strictly as mandated by law.

(h) As a requirement for taking out a procession, the licensee, organizer, manager, and the leader, could be identified with a view to prescribe the route, timing, halting places, the accompaniments and the conduct of the procession itself, only with the sole object of avoiding breach of peace, [p. 908] A

Hakim Sher Ahmad Chishti v. Syed Abbas and 2 others PLD 1976 Lah. 85; Mian Muhammad v. Government of West Pakistan and another 1970 SCMR 645; Muhammad Aslam alias Muhammad Mehdi v. District Magistrate, Gujrat and another 1980 PCr.LJ. 707; Muhammad Hussain Bhatti v. District Magistrate, Gujrat 1985 PCr.LJ 301; Sharafat Hussain v. Deputy Commissioner, Kasur and another 1983 PCr.LJ 1485; Syed Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others PLD 1983 SC 172; Kaneez Fatima v. District Magistrate, Sialkot and others 1985 PCr.LJ 2707; Dr. Muhammad Bashir and another v. District Magistrate Lahore and 2 others 1988 MLD 1400; Syed Tausif Hussain Shah and others v. District Magistrate, Chakwal and others 2000 MLD 199; Malik Ghulam Yusaf v. District Magistrate, Attock 1995 MLD 1510; Muhammad Siddique v. District Magistrate, Lahore and 3 others 1997 MLD 588 and Syed Manzoor Hussain Shah v. Government of N.-W.F.P, through Collector Dera Ismail Khan and others 2005 SCMR 995 ref.

____Arts. 120 & 121—Constitution of Pakistan, Art. 20—License for

Muharram procession, issuance —Pre-requisites— mandatory that a licensee must possess a certain property in the area for taking out the procession since it was the consent of the owner of the property which was required to carry out procession from his place—Even otherwise, participants of a procession walked on the public roads and streets, therefore, the ownership of any property for issuance of the license would be mean.

(c) Police Order [22 of 2002]—

—Arts. 120 & 121—Constitution of Pakistan, Art. — for

Muharram procession— Right of daughter to inherit such license from her deceased (Shia) father—Nowhere in the scheme of (Shia) personal law a daughter was debarred from being substituted as a licensee provided her male family members were capable of fulfilling such responsibility, [p. 909] C

Muhammad Yafis Naveed Hashmi for Appellant.

Malik Shahzad Hassan Awan and Malik Muhammad Azam Sandheela for Respondent No.5.

Muhammad Bashir Lakhesir, A.A.-G. with Umer Saeed Malik, DPO, Vehari, Muhammad Ajmal, Inspector Legal and Shahid Ishaq, Inspector, P.S. Saddar Mailsi.

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