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Writ Petition No. 3123 of 1984, decided on 15th July, 1984.

‑‑‑----S. 30‑‑Criminal Procedure Code (V of 1898), S. 144 Provisional Constitution Order (1 of 1981), Art. 9‑‑Alam procession, taking out of‑‑Right of public‑‑Jurisdiction of authorities concerned‑‑Occasion for which permission was sought having been passed‑‑Held, it was not necessary to determine validity of impugned order in writ petition, however as and when petitioner would apply afresh for permission to take out Alam procession application for such permission might be decided in accordance with law declared in P L D 1983 S C 172 which envisaged that permission sought for procession could not be refused outright Authorities concerned could only impose controls and conditions to regulate conduct of procession.

Syed Sarfraz Bokhari v. District Magistrate, Kasur P L D 1983 SC 172 rel.

Syed Sajjad Raza Jaffari for Petitioner.

This petition under Article 9 of the Provisional Constitution Order, 1981, calls in question the validity of the order passed by District Magistrate, Sialkot contained in letter No. HC/951/C, dated 15‑10‑1983 whereby permission sought for by the petitioner for taking out 'Alam' procession, was refused "in view of the prevailing law and order situation in the said locality."

3. Petitioner who professes Shia faith moved an application before the District Magistrate, Sialkot in October, 1982 seeking permission to take out Alam procession. District Magistrate, after obtaining report from the local police refused to allow the petitioner to take out the aforesaid procession on the ground of law and order situation prevailing in the locality.

2. Learned counsel for the petitioner relying upon Syed Sarfraz Bokhari v. District Magistrate, Kasur P L D 1983 S C 172 has submitted that the permission sought for could not be refused outright as the law does not envisage and outright refusal to take out the procession. District Magistrate could only impose controls and conditions to regulate the conduct of the procession. Relevant portion of the judgment of the Supreme Court of Pakistan, particularly relied upon by the petitioner is reproduced hereunder:‑-

"The general right of the public to assemble and take out processions on public streets or thoroughfares is manifestly 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 the 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 jurisdictional 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 procession 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 controls or regulatory conditions breach of peace must appear imminent or likely."

4. As the occasion for which petitioner's licence had applied for permission has admittedly passed, it is not necessary to determine the validity of the order impugned in this writ petition. It may, however, be pertinently observed that as and when petitioner or anybody else applies afresh for permission to take out the procession, his application may be decided in accordance with law declared by the Supreme Court of Pakistan in the aforementioned case.

5. Learned counsel for the petitioner has made a grievance that the petitioner made the application in the year 1982 but the District Magistrate passed the order thereon in October, 1983. His apprehension, therefore, is that when a similar application is again moved, orders thereon shall be passed after the date for taking out the procession is passed. I have no, doubt in my mind that if the petitioner makes an application in future, the same shall be dealt with and disposed of expeditiously and in any case, well before the occasion for which the application is made.

With the aforesaid observations, this writ petition stands disposed of.

H.B.T Order accordingly.

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