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2021 C L C 413

2021 C L C 413

[Lahore]

Before Jawad Hassan, J

HARIS BIN HASSAN JANG----Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.64211 of 2020, decided on 9th December, 2020.

(a) Punjab Civil Administration Act (III of 2017)---

----S.16---Punjab Infectious Diseases (Prevention and Control) Act (XIII of 2020), S.7---Public processions---Prohibition or restriction of events and gatherings---Writ of prohibition---Locus standi---Policy matter---Scope---Petitioners sought direction to the authorities / State Functionaries to restrain the political parties from arranging public gathering on a certain day---Contention of the petitioners was that their fundamental right to life as guaranteed under the Constitution was infringed---High Court observed that the petitioners were not political workers and they neither intended to attend any political meeting, therefore, there was no possibility of petitioners being infected by the COVID-19---Petitioners had no locus standi to file constitutional petitions---Political parties had already sought the permission as required under S.16 of Punjab Civil Administration Act, 2017 and the matter was pending before Provincial Intelligence Committee, therefore, High Court could not interfere in the policies of the Government---Provincial Intelligence Committee was directed to decide the matter within a period of two days---Constitutional petitions were disposed of accordingly.

Mian Asghar Ali v. Government of the Punjab and others 2020 CLC 157; Muhammad Kamran v. Federation of Pakistan 2014 CLC 1549; Dewan Hamid Masood Chishti and others v. Province of Punjab and others 2020 CLC 1885 and Muneeb Tariq and another v. Punjab Public Service Commission and 2 others 2020 CLC 1591 ref.

Kamran Martin v. Mst. Siera Bibi and 4 others 2017 PLC (C.S.) 597 and PLD 2020 Isl. 175 rel.

(b) Constitution of Pakistan---

----Art.5---Loyalty to State and obedience to Constitution and law---Scope---Word "inviolable" used in Art.5(2) of the Constitution means that it is never to be broken or infringed.

President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784 and (Suo Motu Case No.15 of 2009) PLD 2012 SC 610 rel.

(c) Constitution of Pakistan---

----Art.5---Loyalty to State and obedience to Constitution and law---Scope---Every citizen, in order to secure fundamental rights, has to adhere to the Standard Operating Procedures (SOPs) issued from time to time by the Government, which are binding on them under the Doctrine of Sovereignty.

Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836 rel.

Haris Bin Hassan Jang (in person) with Muhammad Ali Binyamin and Waheed Ahmed.

Nadeem Sarwar (in Writ Petition No. 64233 of 2020).

Ms. Sadia Malik, Assistant Attorney General for the Respondent No.1 (on Court's call).

Barrister Umair Khan Niazi, Additional Advocate General and Barrister Hassan Khalid Ranjha, Assistant Advocate-General Punjab with Ammar Shafique, ADC, Headquarter, Lahore, Dr. Faisal Malik, District Health Officer, Lahore, Muhammad Afzal Shahid, Senior Law Officer, DGHS, Punjab, Muhammad Abrar Khan, Law Officer, DGHS Punjab and Hamid Shehzad, Law Officer, Primary and Secondary Healthcare Department, Government of the Punjab, Lahore.

ORDER

JAWAD HASSAN, J.---Through this single order I intend to dispose of this Petition as well as W.P. No.64233 of 2020 titled "Irfan Ali v. Federation of Pakistan and others", as same question of facts and law is involved in these Petitions.

2. The Petitioners through these petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), have sought a direction to the Respondents/State Functionaries to restrain the Political Parties from arranging public gathering in Lahore on 13th of December, 2020.

3. The Petitioners submit that the Respondents-State Functionaries are not strictly adhering to the relevant provisions of the Punjab Infectious Diseases (Prevention and Control) Act, 2020 ("the Act 2020") while allowing the said gathering of one hundred thousand or more persons in the peak of the Pandemic Covid-19 (Corona Virus) in Pakistan, which would adversely affect not only the lives of Petitioners along with all the persons participating in the said gathering and the civil administration controlling such gathering. He further submits that Section 7 of the Act clearly prohibits the events and gatherings for a specified period subject to a declaration issued by the Director General Health. He next contends that the Director General Health, Government of the Punjab has already issued such declaration in the wake of the Pandemic; the Respondents/State Functionaries are the responsible authorities to play pivotal role in preventing and controlling the infectious diseases like COVID-19.

4. On the last date of hearing i.e. 08.12.2020, this Court raised the following queries against the maintainability of this writ petition of Prohibition under the Constitution:-

(i) what is the locus standi of the Petitioner to file this writ petition;

(ii) how the Petitioner is aggrieved by such public gathering in Lahore on 13th of December, 2020;

(iii) whether the Petitioner has filed any application before the concerned authority prior to invoking the Constitutional jurisdiction of this Court;

(iv) whether the right to assemble as provided to every citizen of this country under Article 16 of the Constitution and the right to freedom of speech are subject to law; and

(v) whether the writ of Prohibition can be issued by this Court and if so, under which law because Article 199(1)(a)(i) of the Constitution clearly provides that this Court may, if satisfied that no other adequate remedy is provided by law, direct a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he or she is not permitted by law.

(I). PETITIONERS' SUBMISSIONS

5. Pursuant to the queries raised by this Court against the maintainability of this writ petition of Prohibition, Mr. Nadeem Sarwar, Advocate submits, that though the Petitioners are not political workers and are not attending the political gathering/rallies/meetings but the people of their locality are interested to attend the same. Therefore, they might be effected by COVID-19.

6. Mr. Nadeem Sarwar, Advocate next contended that there is no alternate remedy available to the Petitioners. He adds that though Article 16 of the Constitution states that every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order. He urged that Section 7 of the Act, 2020 empowers the Director General Health to issue directions prohibiting or imposing one or more requirements or restrictions in relation to the holding of an event or gathering for a specified period. Further Section 16 of the Punjab Civil Administration Act, 2017 (the "Act, 2017") also applicable in this case, which states that no public meeting, procession, assembly or gathering shall take place without prior permission in writing of the Deputy Commissioner, and the Respondents/Political Parties did not approach the concerned Deputy Commissioner/Authority as per law for this purpose.

7. Mr. Haris Bin Hassan Jang, Advocate assisted by Mr. Muhammad Ali Binyamin, Advocate argued the case by referring Article 199(1)(c) of the Constitution which is as follows:

"On the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

He relied on the judgment of this Court cited as "Mian Asghar Ali v. Government of the Punjab and others" (2020 CLC 157), wherein it has been observed, that "the right to peaceful protest and procession is a fundamental right of all the citizens in a democratic country like ours. But unfortunately, this right has been continuously misunderstood as a license to create inconvenience to the general public. The protesters who claim to espouse their cause often forget that their right to protest ends when other person's right to free movement and right of trade/business starts."

8. Mr. Nadeem Sarwar, Advocate lastly submits, that "obedience" to the Constitution as envisaged under Article 5(2), and law is the inviolable obligation of every citizen of Pakistan, therefore, the Respondents/Political Parties have to obey the Law and the Respondent-State Functionaries be directed to implement the Law, Acts, Policies by restraining the Political Parties from arranging public gathering in Lahore on 13th of December, 2020 in the peak of the Pandemic COVID-19 (Coronavirus) in Pakistan. Learned counsel placed reliance on the judgment cited as "Muhammad Kamran v. Federation of Pakistan" (2014 CLC 1549).

(II). RESPONDENTS' SUBMISSIONS

9. Barrister Umair Khan Niazi, Additional Advocate General Punjab assisted by Barrister Hassan Khalid Ranjha, Assistant Advocate-General, submits that the Petitioners have no locus standi to file this writ petition as they did not approach the concerned authority before knocking the door of this Court. He further submits that this Court has already passed two detailed judgments on the issue of Covid-19, reported as "Dewan Hamid Masood Chishti and others versus Province of Punjab and others" (2020 CLC 1885) and Muneeb Tariq and another versus Punjab Public Service Commission and 2 others (2020 CLC 1591), by holding that the Standard Operating Procedures ("the SOPs) issued/made by the relevant governmental authorities are binding on every citizen in Pakistan to prevent/control the Pandemic. Further submits that in the said judgments, it has also been noted that the Federal Government has established a National Coordination Committee ("the NCC") to formulate and implement a comprehensive strategy to stop the transmission of the COVID-19 and to mitigate its consequences and the NCC is comprised of the Federal Ministers concerned, Chief Ministers, Surgeon General of Pakistan Army and the representatives of DG ISI, DG ISPR as well as DG Military Operations. He further argued that one Rana Maqbool Ahmad, Senator moved and application to Deputy Commissioner, Lahore that Pakistan Democratic Movement (the "PDM") intend to hold the public meeting at Minar-e-Pakistan on 13.12.2020, hence subsequent permission may be granted and NOC may also be issued for the same. The matter was placed before the District Intelligence Committee (the "DIC"). In response thereof participants of DIC were informed that the Commissioner Lahore Division Lahore vide letter No.SE/1626, dated 31.03.2018 has informed that the Greater Iqbal Park, Lahore was a part of National Heritage and the Cabinet Committee on Law and Order had already directed to stop all types of political or religious gatherings thereon to ensure Safety and Security of the infrastructure. It was further observed that in the wake of recent spike in COVID-19 cases, it is not advisable to hold public meeting/Jalsa. It was also informed that the Committee considered the issue and unanimously recommended that NOC may not be issued for holding of Public Meeting (Jalsa) at Minar-e-Pakistan. It was further observed that Government of the Punjab intents to make decisions regarding COVID-19 related SOPs in few days in the wake of sudden rise of COVID-19 cases in Lahore. Therefore, public gathering related matter may also be decided in the light of the upcoming decisions.

10. Learned Law Officer further submits, that again the matter regarding holding of meeting/Jalsa by PDM and allied threats related to this activity was taken up by the DIC on 07.12.2020 and it was observed that the members of the Committee unanimously expressed that as Pakistan Democratic Movement (PDM) is an alliance of several political parties having foot prints in all the Provinces, therefore, there is likelihood that people from various areas of the Province as well as other provinces may try to come in Jalsa. Therefore, the proposed PDM Jalsa at Greater Iqbal Park is not an event confined to Lahore only; thus matter may be referred to Provincial Intelligence Committee (the "PIC") for discussion and issuance of appropriate directions regarding decision on holding of Jalsa in the prevailing circumstance of rising Covid-19 cases as well as the restriction of holding Jalsa at heritage site of Minar-e-Pakistan/Greater Iqbal Park, Lahore. Moreover, the case of the provision of security to different leaders of PDM may also be referred to PIC for decision duly headed by Provincial Law Minister. Hence agitating the matter before this Court is pre-mature. He also relied on the judgment cited as "Riaz Hanif Rahi v. Federation of Pakistan and others" (PLD 2020 Islamabad 175).

11. Arguments heard. Record perused.

(III). DETERMINATION BY THE COURT

12. This Court already observed in the judgment mentioned above (2020 CLC 1885) that the Federal Government established NCC to formulate and implement a comprehensive strategy to stop the transmission of the COVID-19 and to mitigate its consequences. Decision to form National Coordination Committee was taken during the NSC meeting. NCC comprised of Federal Ministers concerned, Chief Ministers, Surgeon General of Pakistan Army, and representatives of DG ISI, DG ISPR as well as DG military operations. The NCC designated the National Disaster Management Agency (NDMA) as the leading operational agency. In each province the Chief Ministers convened task forces to coordinate the response, with the Provincial Disaster Management Agencies (PDMA) as the leading provincial operational agency.

13. Moreover COVID-19 Pandemic obligated the Government to come up with a new controlling institution namely 'National Command and Operations Center' (NCOC), which later on emerged as an example of representative governance. NCOC was established on 31.03.2020 and functioning as the "nerve center for timely decision-making" on COVID-19. NCOC acts as the implementation arm of the NCC, the government's lead agency in the anti-COVID-19 campaign. One of NCOC's key functions is to ensure effective coordination between Federal and Provincial Governments to deal with the pandemic. Now, NCOC is working as one-window operation to collaborate and articulate the national efforts against COVID-19, enhance informed decision-making and ensure implementation of decisions of the NSC and NCC.

14. All the government departments continued to perform their duties and functions even in the lockdown situations, but with strict observance of SOPs chalked out by NCOC in this regard. Meaning thereby during turmoil spell of COVID-19 the Government tried its level best to work for the betterment and safety of general public. Therefore, it is commendable that how the NCC and NDMA along with Federal and Provincial Governments have handled the situation by issuing SOPs and ensuring its observance from time to time, which is being highly appreciated at the global level.

15. It is worth noticing that life of every citizen of Pakistan has to be protected under the Article 9 of the Constitution which clearly states that "no person shall be deprived of life or liberty save in accordance with law." Hence, it is inviolable obligation of every citizen including the Respondents/Political Parties to obey command of the Constitution, the Law and the Policies made by the Government. Article 5(2) of the Constitution states that:

"Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan."

16. The word "inviolable" used in Article 5(2) of the Constitution means that it is never to be broken and infringed. In the case of President Balochistan High Court Bar Association and others v. Federation of Pakistan and others (2012 SCMR 1784), august Supreme Court of Pakistan has held that "to be loyal to the State is the basic duty of all citizens and they have to be obedient to the Constitution and the law, wherever they may be. Thus, adherence to the Constitution and the Law by the citizens is mandatory. Non-compliance of the Constitution and the Law makes a citizen liable for action, in accordance with law". It would also include principles of natural justice, procedural fairness and procedural propriety. Laws are always made not to be violated but to be obeyed. In Suo Motu Case No.15 of 2009 (PLD 2012 SC 610) august Supreme Court of Pakistan held that "it is expected from every citizen of Pakistan that he shall be loyal to the State and the basic duty of every citizen is to be obedient to the Constitution and law as ordained under Article 5 of the Constitution." Respect for law is never maintained by force but by the appreciation of the reasons, appreciating its veracity and through obedience. Unfortunately, sometimes, the law falls in crisis due to misunderstanding or lack of vision.

17. In order to secure fundamental rights, every citizen has to adhere to the SOPs issued from time to time by the Government which are binding on them under the Doctrine of Sovereignty. This Court in the recent judgment titled, Mst. Fatima Faryad and others v. Government of Punjab and others (2020 CLC 836) held that:

"under the Doctrine of Sovereignty they are bound to adhere to their commitment in the light of dictum laid down in the case of Dewan Salman Fibber Ltd. and others v. Federation of Pakistan, through Secretary, M/o Finance and others (2015 PTD 2304) whereby this Court while laying emphasis on the impotence of the Government adhering to severing commitments made by it, whether in the form of the statutory orders or notification issued by it or in the shape of policies announced by it held that "the commitments made on behalf of the Government of the Islamic Republic of Pakistan should neither be lightly disregarded nor deliberately ignored. The orderly development of a civilized society requires that citizens should be entitled to place implicit faith and confidence on representations which are made by or on behalf of the duty constituted governmental authorities. The importance of this underlies the sustained thrust towards the industrialization of the country in which both the nationals of Pakistan as well as nationals of foreign countries should have complete confidence that official commitments will be duly honored and acted upon in letter and spirit."

18. As for as argument of the learned counsel for the Petitioners that their fundamental rights to life as guaranteed under the Constitution have been infringed due to rallies/meetings to be arranged by the Political Parties is concerned, it has been noted that the Petitioners are not political workers and neither intend to attend any political meeting (Jalsa), therefore, there is no possibility of Petitioner being infected by the COVID. So they have no locus standi to file these Petitions. Reliance is placed on the judgment of this Court cited as "Kamran Martin v. Mst. Siera Bibi and 4 others" (2017 PLC (C.S.) 597), wherein it was held that:

It is sine qua non for initiation of proceedings under Article 199 of the Constitution that the Petitioner should have a locus standi to institute the proceedings or in other words the Petitioner should be an aggrieved party from the action of the Respondents. Pivotal judgment of the apex Court on this issue is Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 SC 223) and the Lahore High Court titled Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases, West Pakistan and others (PLD 1957 (W.P) Lahore 914) wherein it was observed that for a person to have locus standi to initiate a petition for issuance of writ, he/she must have some right in the matter and he/she need not have a right in that strict sense of the term which is provided in Article 170 of the Constitution.

19. However Article 16 of the Constitution clearly depicts that every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order. In this situation the relevant Law to examine by this Court are the Punjab Infectious Diseases (Prevention and Control) Act, 2020 and Civil Administration Act, 2017 (mentioned above). For ready reference Section 7 of the Act 2020, is reproduced as under:

Prohibition or restriction of events and gatherings.- (1) Subject to a declaration, the Director General Health may issue directions prohibiting or imposing one or more requirements or restrictions in relation to the holding of an event or gathering for a specified period.

(2) A direction under subsection (1), may be issued in relation to:

(a) a specified event or gathering; or

(b) events or gatherings of a specified description including description with reference to the number of people attending the event or gathering.

(3) A direction under subsection (1) may only have the effect of imposing prohibitions, requirements or restrictions on:

(a) the owner or occupier of premises for an event or gathering to which the direction relates;

(b) the organizer of such an event or gathering;

(c) any other person involved in holding such an event or gathering.

Section 16 of the Act, 2017 is reproduced as under:

(1) No public meeting, procession, assembly or gathering shall take place without prior permission in writing of the Deputy Commissioner.

(2) On receipt of an application for the purpose, the Deputy Commissioner, in consultation with the head of District Police, may grant permission subject to such terms and conditions as he deems fit or reject the application after recording reasons.

(3) The Deputy Commissioner may, in consultation with the head of the respective local government, requisition such assistance of the local government as may be necessary in the circumstances.

Therefore, the Administration has to consider the aforesaid provisions of law in this situation before passing any order because this is the administrative and policy issue and is not justiciable, hence no interference is required by this Court.

20. Since the required permission has been sought by the Political Parties, as informed by learned Law Officers, and the matter is now pending before the PIC, therefore, this Court cannot interfere in the policies of the Government. Reliance is placed on the judgment (PLD 2020 Islamabad 175) mentioned above, wherein it has been observed that:

"They cannot be dictated by this Court as to what measures they are required to take in this regard or how protest rally/sit-in is to be regulated. These matters are within the exclusive domain of the executive authorities and no direction be given by this Court."

21. In this case the Home Department of Government of the Punjab through its DIC has already dealt with the matter in detail and under Schedule 2 of the Punjab Government Rules of Business, 2011 (the "Rules") the mandate of Home Department is to make legislation and policy formulation for public order and internal security and to administer various Laws specified therein. Therefore, for the protection of lives of the citizens/public under the Constitution the Respondents/State Departments/Agencies are directed to ensure strict observance of decisions of the PIC/DIC, SOPs laid down by NCOC and the Federal and Punjab Governments. It will also be the obligatory duty under Article 5 of the Constitution of the Respondents/Political Parties/ workers being citizen of Pakistan to follow the SOPs, guidelines of Government regarding Social-Distancing and Sanitization as already elaborated by this Court in the judgments mentioned above (2020 CLC 1591) and (2020 CLC 1885). However, as the matter is already pending before the PIC, therefore, PIC shall look into the matter and decide the same in accordance with law within a period of two (02) days.

22. In view of above, this Petition as well as the connected writ Petition No.64233 of 2020 stand disposed of.

SA/H-7/L Order accordingl