2021 MLD 370 | Mian ALI ASGHAR Versus GOVERNMENT OF THE PUNJAB

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2021 M L D 370

2021 M L D 370

[Lahore]

Before Jawad Hassan, J

Mian ALI ASGHAR---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.68942 of 2019, heard on 9th December, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Scope---Petitioners sought directions to the authorities to implement policy/notification whereby certain area of provincial capital was declared to be red zone---High Court while allowing constitutional petitions directed the Government Departments performing their functions within its jurisdiction in connection with the affairs of Province (of Punjab) and other local authorities under the laws, that; (i) the Punjab High Security Zones (Establishment) Act, 2020, once enacted, shall be implemented in letter and spirit in order to protect the lives of the citizens; (ii) all the departments shall take steps to protect, manage and control law and order situation in the Province; (iii) the Departments shall, through the media and other means, inform the public and create awareness, including of lodging a complaint for any violation of the law; and (iv) the Pakistan Electronic Media Regulatory Authority (PEMRA) and the State Functionaries shall also comply with the order passed in W.P. No. 13302 of 2018, dated 17-01-2018, for smooth running of traffic as well as opening of educational institutions, shops of the traders and offices---Constitutional petition was disposed of accordingly.

National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S.) 453 and Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066 ref.

Mian Ali Asghar v. Government of the Punjab and others 2020 CLC 157 and Naimatullah Khan Advocate and others v. Federation of Pakistan and others 2020 SCMR 622 rel.

(b) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Scope---Every citizen/ protestors/ strike holders were inviolably bound to obey command of the Constitution, the law and the policies made by the Government---Word "inviolable" used in Art. 5(2) of the Constitution means that it is never to be broken and infringed, wihch also includes principles of natural justice, procedural fairness and procedural propriety---Laws are always made not to be violated but to be obeyed.

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 has to adhere to the law and policies issued from time to time by the Government which are binding on every citizen under the Doctrine of Sovereignty.

Dewan Salman Fibber Ltd. and others v. Federation of Pakistan, through Secretary, Ministry of Finance and others 2015 PTD 2304 and Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836 rel.

Muhammad Azhar Siddique, ASC and Aqsa Jabeen for Petitioner.

Javed Anwar Janjua for Petitioner (in Writ Petition No.45254 of 2019).

Barrister Umair Khan Niazi, Additional Advocate-General, Hassan Khalid Ranjha, Assistant Advocate General with Ahmad Bilal, S.O. (IS-II), Home Department, Government of Punjab, Lahore, Hussain Bahadur, Additional Secretary (IS), Home Department, Government of Punjab and Ashfaq Ahmad Khan, DIG (Operations), Lahore for Respondents.

Usama Khawar Ghumman and Rehman Aziz for Respondent No.9/PEMRA.

Date of hearing: 9th December, 2020.

JUDGMENT

JAWAD HASSAN, J.-----The Petitioners through this writ and connected case i.e. W.P.No.45254 of 2019 titled "Mall Road Traders Association v. Government of the Punjab and others" under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") have sought directions to the Respondents/Authorities to implement the Policy/Notification No.So(IS-II)3-9/2011(N-1), dated 22.01.2012 whereby the area from Mian Mir Bridge to Post Master General, Office Mall Road be declared as Red Zone (the "Red Zone"). They sought protection of fundamental rights of property, life and trade guaranteed under the Constitution.

2. Mr. Muhammad Azhar Siddique ASC on the first date of hearing contended that the Policy vide Notification No.So(IS-II)3-9/2011(N-1), dated 22.01.2012 has been made by the Government in the light of the judgments and orders passed by this Court from time to time in various writ Petitions including W.P. No.7461 of 2011 and Crl. Org. No.19510-W/2011. Therefore, the Respondents-Departments are bound under Article 201 of the Constitution to comply with the orders passed by this Court and implement the said Red Zone policy. Further stated that the special persons (blind citizens) were observing strike and protesting in the Red Zone for their legal demands regarding employment/jobs, which were not considered by the Government and consequently they blocked the Mall Road Lahore situated in Red Zone, which infringed the Petitioner's right to move freely as provided under Article 15 of the Constitution. He adds that under the Doctrine of Sovereignty in the light of dictum laid down in the case of Dewan Salman Fibber Ltd. and others v. Federation of Pakistan, through Secretary, Ministry of Finance and others (2015 PTD 2304) this Court while laying emphasis on the lack of interest by the Government adhering to sovereign 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 has 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 duly 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." He also relied on the judgment of this Court cited as National Bank of Pakistan v. Iftikhar Rasool Anjum and others [2017 PLC (C.S.) 453] which has been upheld by the Hon'ble Supreme Court of Pakistan in the case of Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others (2017 SCMR 2066), wherein this view has further been fortified by a learned Division Bench of this Court. Learned counsel have vociferously argued that despite clear cut verdict given by this Court, which has also been upheld by the august Supreme Court of Pakistan, the Respondents are neither implementing the Policy/Notification nor giving its benefit to the Petitioner and the public at large. He also added that the 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, therefore, the special persons also have to follow the law.

3. Mr. Javed Anwar Janjua, Advocate for the Petitioner in W.P. No.45254 of 2019 also argued the case almost on the same line as argued by Mr. Mohammad Azhar Siddique, ASC, however, submits, that the Respondents/State functionaries be directed to take appropriate measures for the protection of fundamental rights of property, life and trade of the traders of Mall Road by confining the rallies, processions and demonstrations only within the Nasir Bagh and any other appropriate place.

4. Notices were issued to the Respondents to file report and parawise comments by adverting to the assertions made by the Petitioners in the light of judgments (mentioned above). The departments were also directed to explain what steps had been taken so far to implement the laws and the Red Zone Policy.

5. Arguments heard. Record perused.

6. During the pendency of this Petition various orders have been passed by this Court. On 20.11.2019, it was informed by learned counsel for the Petitioner, that the protest of employees of the Punjab Land Record Authorities (the "PLRA") was being going on, resulting into serious hindrance in free movement of the citizens at the Mall Road. Accordingly vide order dated 22.11.2019 Ahmad Bilal, Section Officer, Home Department, Government of the Punjab, Lahore apprised the Court that in compliance of the judgments and orders passed by this Court from time to time in various writ Petitions, they have already prepared the Draft Red Zone Act (the Draft Act-I) to deal with the issue in hand. However, keeping in view the circumstances the concerned revenue Authorities were directed to negotiate and resolve the issue with their employees and to call off their protest till 02:00 pm that day. It was also directed that the concerned authorities would take stern action against any person who continued the protest after 02:00 P.M. and also terminate his contract in violation of the Constitution, Laws and the Judgments of this Court. Thereafter on 25.11.2019, Qazi Muhammad Awais, Advocate appeared on behalf of the employees of the PLRA and stated that in compliance of the order of this Court they have ended the protest. This Court in order dated 22.11.2019 passed in this Petition, reported as "Mian Ali Asghar v. Government of the Punjab and others" (2020 CLC 157) has held that:

"9. 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."

This Court further held that:

"Regarding extent of one's fundamental right of protest/procession, guidance can be sought from the judgment of Indian Kerala High Court in A. Jacob case (AIR 1993 Kerala 1), wherein it has categorically been held that:

19. Professions of rights, distanced from realities of life, would make liberties unreal. The liberties of some, could prove to be the end of the liberties of others. The loquacious may silence the meek. The State must protect the mute, the unorganised and inarticulate, against onslaught of enthusiasm of the vocal or the vociferous. It is no use saying hosannas to freedom, unless such freedom is real. Real they will be, only if there is an ordered society. Order to liberty, is what oxygen to life is. There is no basis to think that freedom and order are not compatible. They are complementary. Liberty will be lost in excess of anarchy, if there is no order. Regulation and suppression are not the same in purpose or result. Time it is to think, whether un-disguised assertions of rights by some, have not imperilled rights of others. If one were to recognise right to protest by blocking roads and railways, it is recognition of a right, to deny rights of the peaceful citizens. Acorns of today, will grow into oaks of tomorrow."

It was also observed that:

"11. Mr. Tahir Farooq Tarar, Head Legal, PEMRA, present in the Court, shall ensure that no Television Channel will make any coverage to the protest(s) being conducted on the Mall Road Red Zone and also notify all the Channels in accordance with Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2017 and the Electronic Media Code of Conduct, 2015."

7. Ahmad Bilal, Section Officer, Home Department, Government of the Punjab, Lahore has filed the proposed draft of the Punjab Red Zones (Establishment and Security) Act, 2018 (the "Draft Act 2018") and stated that a Committee in this regard has been constituted, which will finalize the legislation.

8. That on 19.10.2020, Hassan Bahadur, Additional Secretary (IS), Home Department, Government of Punjab, Lahore and Ashfaq Ahmad Khan, DIG (Operations), Lahore, again submitted the draft of "the Punjab Red Zone (Establishment and Security) Act, 2020" (the "Draft Act"), whereupon learned counsel for the Petitioners submits, that the Draft Act does not cover certain area of riots, therefore, it needs comprehension. Further submits that the example can be drawn from the comparative laws of other countries to control the protests in the Red Zone. This Court observed that 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, in order to strengthen the Draft Act, Hussain Bahadur, Additional Secretary (IS), Home Department, Government of Punjab, Lahore was directed to convene a meeting with all the relevant State Functionaries including D.I.G. (Operations), Lahore, Ms. Sadia Malik, Assistant Attorney General, Barrister Umair Khan Niazi, Additional Advocate-General and Mr. Mohammad Azhar Siddique, Advocate and prepare draft of Committee with TORs. Thereafter on 09.11.2020 learned Law Officer submitted Notification No.SO(IS-II)1-1/2004, dated 09.11.2020, whereby a Committee consisting of 12 members being headed by Convener i.e. Additional Secretary (Internal Security), Government of the Punjab, Home Department, Lahore, was constituted to review the proposed draft of "Punjab Red Zones (Establishment and Security) Bill, 2020" (the "Bill") with certain TORs for consultation with all the stakeholders. Perusal of TORs revealed that no responsible authority has been established with functions and powers to overlook the Bill. Learned Law Officer submitted that they will do the needful in the next coming meeting. Resultantly, the learned Law Officer presented the Final Draft of "the Punjab High Security Zones (Establishment) Act, 2020" (the "Final Draft Act, 2020") and submitted that it has been made after due deliberation and consultation with all the stakeholders.

9. This Court noted that earlier there was no law on the issue of strikes in the Red Zones areas and under the directions of this Court, concerned Departments prepared the Final Draft Act, 2020, which will be followed in letter and spirit across the Punjab once enacted and duly notified by the Provincial Assembly as per the Constitution and Law.

10. It has been informed that already the Hon'ble Full Bench of this Court vide order dated 17.01.2018 passed order in W.P. No.13302 of 2018, held that:

"In view of this undertaking the Pakistan Electronic Media Regulatory Authority (PEMRA) is directed to ensure the stoppage of media coverage after 12:00 p.m. (midnight) today. The Government shall ensure the smooth running of traffic as well as opening of educational institutions and all the shops of traders and the offices from tomorrow."

11. It is fundamental right of the Petitioners under Article 15 of the Constitution to move freely throughout the Pakistan and has also right to peaceful assembly without arms subject to restrictions imposed by Law. It is also 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 / protestors / strike holders 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."

12. 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.

13. In order to secure fundamental rights, every citizen has to adhere to the Law and Policies issued from time to time by the Government which are binding on every citizen 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, Ministry of Finance and others (2015 PTD 2304) whereby this Court while laying emphasis on the importance 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."

14. 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 protests/rallies/meetings to be arranged at Mall Road Lahore, is concerned, under Article 9 of the Constitution the Petitioners have right to life which is duty of the State to protect the same. Moreover, the fundamental rights of trade and business interests of the Petitioners are also protected under Article 18 of the Constitution. Recently the Hon'ble Supreme Court of Pakistan in the judgment cited as "Naimatullah Khan Advocate and others v. Federation of Pakistan and others" (2020 SCMR 622), has held that "the State was required to ensure that all aspects of citizens' life were protected and dealt with by the State. Right to life included the provision of drinking water; provision of electricity; provision of education; provision of health facilities; provision of civic and civil infrastructure and provision of transportation." Hence the peaceful and smooth running of traffic on Mall Road is necessary for the protection of fundamental rights of the citizens/traders.

15. In view of the above, this Court allows both the writ Petitions and directs the Government Departments performing their functions within jurisdiction of this Court in connection with the affairs of Province of Punjab and other local authorities under the respective laws, that:

(1) The Final Draft Act, 2020, once enacted, shall be implemented in letter and spirit in order to protect the lives of the citizens once enacted and notified by the Assembly.

(2) All the Respondents shall take steps to protect, manage and control law and order situation in the Province.

(3) The Departments shall, through the media and other means, inform the public and create awareness, including of lodging a complaint for any violation of the law.

(4) The Pakistan Electronic Media Regulatory Authority (PEMRA) and the State Functionaries shall also comply with the order dated 17.01.2018, passed in W.P. No.13302 of 2018, for smooth running of traffic as well as opening of educational institutions, shops of the traders and offices.

16. Before parting with this judgment, I appreciate the efforts of all Government Departments whose representatives appeared before this Court from time to time and complied with orders under doctrine of continuing mandamus and prepare the Final Draft Act, 2020. I would also appreciate the efforts of Law Officers, learned counsels and Hussain Bahadur, Additional Secretary (IS), DIG Operations Ashfaq Ahmad Khan, Sadia Malik, Assistant Attorney General for Pakistan, Umair Khan Niazi, Additional Advocate General, Hassan Khalid Ranjha, Assistant Advocate General and social activists, who played important role in this case.

17. Disposed of.

SA/A-84/L Order accordingly.