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Writ Petition No. 4053 of 1984, decided on 23rd September, 1984. .

‑‑‑S.30‑‑Criminal Procedure Code (V of 1898), 5.144‑‑Provisional Constitution Order (1 of 1981), Art.9‑‑Muharram procession‑‑Licence‑ Petitioner in moving application for grant of licence to take out procession for participation in a religious ceremony not acting mala fide or for some ulterior motive rather stating in his application to abide by regulatory conditions to be imposed by administration on conduct of procession‑‑District Magistrate refusing application of petitioner on ground that route of procession was predominently occupied by people of sects who were opposed to taking out procession and holding that it was for petitioner to establish through evidence that application did not suffer for lack of bona fide‑‑Mere fact that route which procession had to follow was predominantly occupied by people who were opposed to taking out of procession, held, District Magistrate not empowered to refuse grant of licence in circumstances‑‑Order of refusal to grant licence made by District Magistrate declared in circumstances without lawful authority‑‑District Magistrate was under obligation to issue licence subject to imposition of any condition that may be deemed necessary to avoid breach of peace and to ensure maintenance of law and order on such occasions.

Sarfraz Hussain Bokhari v. District Magistrate, Kasur P L D 1983 SC 172 and Government of Pakistan v. Zamir Ahmad P L D 1975 SC 667 ref.

---S. 30‑‑Criminal Procedure Code (V of 1898), S.144‑‑Provisional Constitution Order (1 of 1981), Art.9‑‑Muharram procession‑‑Licence‑ Refusal to grant‑‑Death of a police officer occurring over a period of three decades earlier, held, could not be pressed into service for entertaining reasonable apprehension leading to breach of peace after such a long time and for refusal of licence.

S. Sajjad Raza Jafari for Petitioner.

S.M. Zubair, A.A.‑G. for the State.

Date of hearing: 23rd September, 1984.

The petitioner by means of this Constitutional petition has assailed order, dated 4‑9‑1984 of the District Magistrate, Gujrat whereby he rejected petitioner's application for grant of Licence to take out 'Zuljinah' and 'Alam' processions during the ensuing month of Muharram‑ul‑Haram.

2. The petitioner is resident of Kunjah Town, District Gujrat. He professes Shia faith and is President of Anjuman‑e‑Darul Hussain (Regd.), Kunjah, District Gujrat. It appears from the available record that on 27‑1‑1981 he applied for grant of licence to take out 'Alam' procession on 5th of Muharram in Kunjah Town but his application was rejected on 7‑2‑1981 by the District Magistrate, Gujrat on the ground that it was an innovation. The petitioner challenged the validity of the aforesaid order through Writ Petition No. 2737 of 1982, and this Court vide order, dated 19‑10‑1982 set aside the impugned order on the ground that the same was passed without application of independent mind and wholly based on recommendations of the Superintendent of Polie, Gujrat. The case was, however, remitted to the District Magistrate for decision of petitioner's application expeditiously and in accordance with law. The case on remand remained pending decision for over a year but eventually petitioner's application was rejected by the District Magistrate on 5‑11‑1983 for the reasons, that Sunnis were bitterly opposed to the taking out of procession, there was great tension between the parties and apprehension of sectarian riots. The petitioner being aggrieved against the aforesaid order again challenged the same before this Court through another Writ Petition No. 5028 of 1983, which was disposed of by this Court on 27‑2‑1984 when the date for which the licence for taking out 'Zuljinah' procession had already expired. The learned Judge, however, in his order observed:‑

"The matter of grant of licence as and when raised will have to be decided in accordance with the law declared by the Supreme Court in the case of Sarfraz Hussain Bokhari. It may be reiterated that as the law stands it does not envisage a total prohibition, an outright refusal for all times to take out the procession, to participate in a religious ceremony or observance. It contemplates placing of control and adopting of regulatory measures with the object of avoiding breach of peace and for refusing licence on any particular occasion or to any particular person, there has to be (something else); e.g., lack of bona fide, some ulterior motive or purpose manifestly established to account for refusal of a licence."

The petitioner on 8‑8‑1984 repeated his application for the third time for the grant of licence to take out 'Zuljinah' and 'Alam' processions. His application was sent to police for report. The Superintendent of Police, Gujrat opposed petitioner's application on the following grounds:‑

(a) that only a few families of Shia faith are putting up in Kunjah Town, whereas a large number of people of other faiths are residing in the locality.

(b) Sunnis of the locality are bitterly opposed to this procession on the prescribed route.

(c) This issue has a long and bitter history as an S.H.O. was murdered on this account.

(d) Even this year there is a grave tension between Shias and Sunnis.

The District Magistrate relying on the aforesaid police report regarding tension prevailing among Sunnis and Shias rejected on 4‑9‑1984 the application with his observations to the following effect:‑

"In all fairness it must be remarked that any party making any claim in respect of any religious rite, practice, mode or custom must establish that without strict adherence to the above, he is deprived or prevented from the fulfilment of religious duties imposed upon him by his faith, unless and until he performs a particular religious act/rite of his faith on a specific date and in a specific locality or on a specific route. In the instant case it is obvious that the petitioner or any other party of Shia faith did not have any licence to take out Zuljinah procession in Kunjah Town. As such it was incumbent upon the petitioner to establish his case in accordance with the above principle. There is no such evidence on the file. Secondly, it is also incumbent upon him to establish that the application made by him is in good faith. Report submitted by the S.P., Gujrat clearly speaks of the grave tension prevailing among the Sunnis and Shias. The grant of licence would be a direct affront to the large section of Sunnis community who are inhabiting this town. It was necessary for the petitioner to establish that this is totally unfounded and he was required to lead reliable evidence to prove his case."

3. Learned counsel for the petitioner contended that despite the law declared by the Supreme Court in Sarfraz Hussain Bokhari .v. District Magistrate, Kasur P L D 1983 S C 172 the District Magistrate has refused to grant licence for the third time which amounts to total prohibition and refusal for all times to take out procession. It was further contended that the apprehension of breach of piece cannot be made a ground for refusing permission to take out procession because the District Magistrate under section 30 of the Police Act, 1861 has, at best, the power to regulate the route, the time and impose conditions on the conduct of the procession.

4. Mr. S. M. Zubair, learned Assistant Advocate‑General supported the impugned order passed by the District Magistrate. It was argued on his behalf that number of persons following Shia faith in Kunjah Town is far less than that of Sunnis who are indisputably in overwhelming majority and opposed to the taking out of procession. He also pointed out that in the year 1937 a mishap has taken place on account of sectarian differences in the town, in which a Sikh police officer lost his life. It was also pleaded that the petitioner has not proved his bona fides in moving application for the grant of licence for taking out processions.

5. I have heard learned counsel for the parties. The available record has also been perused. The law regulating the grant of licence for taking out procession is enacted in section 30 of the Police Act, 1861, and the relevant portion thereof is reproduced hereunder:‑

"30. Regulation of public assemblies and processions and licensing of same.‑‑ (1) The District Superintendent or Assistant District Superintendent 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 on 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, be likely to cause a 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) On 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 take place and otherwise giving effect to this section: Provided that no fee shall be charged on the application for, or grant of, any such licence."

The Supreme Court of Pakistan in Sarfraz Hussain's case while inter preting the aforesaid provisions of law and distinguishing the dictum laid down in the case of Government of Pakistan v. Zamir Ahmad PLD 1975 S C 667 observed:‑

"The general right of the public to assemble and take out proces sions on public street or thoroughfares is manifesty recognized in this law. In recognition of such a right certain statutory powers have been conferred on the District Superintendent and Assistant District Superintendent and the Magistrate of the District in the matter of prescribing the route, the timing and imposing regulatory conditions on the conduct of the assembly or the procession. The very power to direct an application for a licence is dependent on the jurisdictional fact that "in the judgment of the Magistrate of the district or of the sub‑division of a district" if such an assembly or procession is uncontrolled, it is likely to cause a breach of the peace. So the likelihood of the breach of peace, in the absence of control, provides the jurisdiction to impose controls and conditions and that juris dictional fact by itself cannot be made the ground for refusing the licence itself. There has to be something else e.g. lack of bona fide, some ulterior motive or purpose manifestly established to account for refusal of a licence. In this view of the matter, as held in Mian Muhammad's case the law does not envisage a total prohibition, an outright refusal for all times to take out the procession, to participate. in a religious ceremony or observance. By requiring the taking out of a licence, the organizers, the managers, the leaders of the group can be identified. They can be placed under control, with regard to the route, timing, halting places, the accompaniments, and the conduct of the procession itself. Such controls and regulatory conditions must have the sole object of avoiding breach of peace, and without such control or regulatory conditions breach of peace must appear imminent or likely. The plenary power to grant licence where a right is altogether absent as in the case of import/export of goods is concerned, is a different power in content and quality than the power to licence processions and assembly which right finds recognition in the licensing law itself. This power cannot be used to completely ban or prohibit the assembly or procession. In this case the action of the District Magistrate was clearly without jurisdiction and lacking in lawful authority. The appeal is accepted, the order of the District Magistrate is set aside".

In the instant case there is nothing on the record to show that the petitioner in moving application for the third time, for the grant of licence to take out procession for participating in a religious ceremony or observance has acted mala fide or for some ulterior motive or for such purpose manifestly established in that behalf. Para. 5 of his application rather indicates that he has undertaken to abide by the regulatory conditions imposed by the administration on the conduct of the procession. The learned District Magistrate appears to have mis construed the law laid down by the Supreme Court, in holding that it was for the petitioner to establish through evidence that the application did not suffer for lack of bona fide. The other philosophic observation) of the learned District Magistrate in the impugned order to the effect, that if a person claims a right to perform a religious act on a particular occasion, is required to prove that if prevented there from, it would amount to non‑fulfilment of religious duty imposed upon him by his faith; shows his ignorance about the observance of religious ceremonies in particular manner on particular dates and time as article of faith before such person; and non‑performance thereof for reasons beyond his control amounts to his deprivation of the observance of religious duties.

It is not denied by the learned Assistant Advocate‑General that nobody else except the petitioner had applied for grant of licence to take out 'zuljinah' procession on the days mentioned in the petition nor it is his case that the petitioner is not proper person entitled to the B grant of licence. The mere fact that the route which the procession) has to follow as predominantly occupied by Sunnis opposed to the taking out of procession does not empower the District Magistrate to refuse grant of licence to the petitioner. The grounds mentioned in the police report opposing grant of licence to the petitioner were almost identical to those taken into consideration by the District Magistrate for refusing to grant licence to Sarfraz Hussain Bokhari, the petitioner in the aforesaid case but their Lordships of the Supreme Court set aside the order and held that the power vested in the District Magistrate cannot be used to completely ban or prohibit the assembly or procession. He can impose regulatory conditions upon the licensees and organizers with regard to the route, timing, halting places and the conduct of the procession itself with the sole object of avoiding breach of peace if deemed imminent or likely.

The mishap referred by the learned Assistant Advocate‑General regarding the death of a Sikh police officer occurred over a period of C three decades, earlier can hardly be pressed into service for entertaining reasonable apprehension leading to breach of peace after such a long time.

6. For the foregoing reasons, the impugned order of the learned District Magistrate, Gujrat rejecting petitioner's application for licence t take out Muharram processions is declared to be without lawfull authority and of no legal effect.

He is under legal obligation to issue licence to the petitioner subject, however, to impose any condition that may be deemed necessary to avoid breach of peace and to ensure maintenance of law and order on such occasions.

7. In the result, this petition is allowed with no order as to costs.

M. Y. H. Petition allowed.

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