P L D 2016 Balochistan 21
Before Mrs. Syeda Tahira Safdar and Muhammad Kamran Khan Mulakhail, JJ
HAMAYUN SHAH ---Petitioner
Versus
SECRETARY HOME AND TRIBAL AFFAIRS, GOVERNMENT OF BALOCHISTAN
and 4 others ---Respondents
C.P. No.10 of 2015, decided on 24th November, 2015.
Prohibition of Smoking and Protection of Non -Smokers Health Ordinance (LXXIV of
2002) --
----Ss. 2(c)(g), 5 & 11 ---Criminal Procedure Code (V of 1898), S.144(6) ---Constitution of
Pakistan, Art. 18 ---Sheesha smoking, serving of ---Restraining order ---Right of free trade ---
Petitioner was running a restaurant and his grievance was that authorities were interfering in his
lawful business --- Validity ---Offering of sheesha smoking in restaurant by petitioner was
contrary to the provisi ons of Prohibition of Smoking and Protection of Non -Smokers Health
Ordinance, 2002 ---Legal import of tobacco would bring no change nor could entitle petitioner
for its use in the referred place ---Restraining order was issued by government of Balochistan in
exercise of powers available under S.144(6), Cr.P.C., which had specifically empowered
provincial government to make an order to such effect ---Petitioner failed to point out any
illegality committed by provincial government in issuance of order in questio n---Petitioner failed
to establish that any of his fundamental rights was denied by issuance of restraining order passed
by authorities ---Petitioner was citizen of Pakistan who had the right to enter in any profession or
occupation or to conduct any trade or business but provisions of the Art.18 of the Constitution
specifically spelt the nature of profession, occupation, trade and business as lawful which was
missing ---High Court declined to interfere in the matter -- Constitutional petition was dismissed
in circumstances.
Zafar Alam Mandokhail for Petitioner.
Abdul Latif Kakar, Asstt. A. -G. for Respondents.
Date of hearing: 5th August, 2015.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner Hamayun Shah filed the instant
petition for issuance of a writ for a right to enter upon lawful profession or occupation, and
conduct lawful trade and business as ensured by Article 18 of the Constitution of Pakistan.
2. It was his case that he was running a restaurant at upper floor of Eman Shopping Cente r
at Prince Road, Quetta; through this lawful business he provided entertainment and recreation to
the general public. It was further his case that in pursuance to the order dated 18th August, 2014
of the Government of Balocliistan, Home and Tribal Affairs Department, a raid was conducted at
his restaurant, and he was charged for providing sheesha in his restaurant. While two complaints
were lodged, and he was booked for the offence, but during the course of trial he (petitioner) was
acquitted of the charge in exercise of the powers available under Section 249 -A, Criminal
Procedure Code (Cr.PC) by the trial court i.e. Judicial Magistrate -X, Quetta vide order dated
12th August 2014. It was contended that despite his acquittal, the respondents constantly
interfered, and not permitted him to run his legal business.
3. The order dated 18th August 2014 issued by the Provincial Government was claimed to
be illegal, thus to be declared void ab -initio. It was asserted that the material used in the sheesha
easily av ailable in the open market, and there was no bar on its purchase. Further, the material
used for the pufpose not covered by the term narcotics, nor the act of smoking sheesha defined as
an offence in the relevant law, thus neither the act was prohibited, n or there was any bar on its
business. Thus in 4.he given state of affairs the respondents were not empowered to either
interfere or to discontinue his business lawfully carried out. It was contended that the act on part
of the respondents was not only in c ontravention of the law, but also violative to the fundamental
rights guaranteed by the Constitution to the citizens. The prayer was to set aside the impugned
order dated 18th August 2014, in addition issuance of an order of restraint against the concerned
functionaries to refrain from interfering in his (petitioner's) business lawfully carried out.
4. The learned counsel for the petitioner argued his case at length. It was contended that the
Secretary, Home and Tribal Affairs, Department, Government of B alochistan, imposed a ban on
usage of sheesha at public places without the strength of law. Further, the tobacco used in the
sheesha was legally imported, not a banned item, thus its use in business could neither be
declared as illegal, nor could be made b asis for initiating criminal proceedings against him. The
learned counsel was of the view that as no law existed to govern the act of usage of sheesha at
public places, thus this fact placed a bar on issuance of any order to restrict the act, nor even
exercise of the powers available under Section 144, Cr.P.C. empowered the Provincial
Government to issue an order to the effect.
5. In reply the learned Assistant Advocate General was of the view that smoking is not a
fundamental right, while sheesha in fact is a narcotic, thus there is a ban on its use in public
places. It was further stated that the restaurants and the sheesha cafes offering sheesha also to the
school going children, who are minors, thus hazardous for their health. In addition the
Governmen t of Balochistan is competent to issue an order to the effect in exercise of powers
available under Section 144 Cr.P.C. Subsection (6) of the section was referred with specification.
It was contended that issuance of impugned order in no way an infringemen t to the right of trade
or business, as smoking at public places is prohibited by law. In reply the learned counsel for the
petitioner referred to Article 18 of the Constitution, which guaranteed the right of profession,
trade and business. He denied lying of authority with the Secretary, Home, and Tribal Affairs
Department, for the purposes under Section 144, Cr.P.C.
6. In case in hand the petitioner questioned the order issued by the Government of
Balochistan, Home and Tribal Affairs Department in exerc ise of the powers conferred by Section
144 subsection (6) Cr.P.C. The order placed a ban on use of sheesha at public places all over the
Province, with specification of its use at Fast Food Centers, Hotels, Restaurants, Net Cafes and
Sheesha Cafes with imm ediate effects till further orders. This order was issued on 18th August
2014. The petitioner highly aggrieved of the order, but approached this court after lapse of nearly
five months. The reason to cover the laches was described as he faced the trial, co mmenced on
the complaints filed under Section 188 Pakistan Penal Code (P.P.C.) for the act, and succeeded
to obtain an order of acquittal in his favour on acceptance of the application filed for his pre -
mature acquittal under Section 249 -A, Cr.P.C. vide or der dated 12th August 2014. On the
strength of this order of acquittal the petitioner questioned the impugned order, and prayed for
issuance of a writ to the effect.
7. There was no denial of the fact that the petitioner was running a restaurant at the u pper
floor of the Eman Shopping Center situated at Prince Road, Quetta. It was also a fact that in
addition to his normal busitiess of restaurant he offered sheesha to the customers. Though the
petitioner claimed legality of his profession but failed to pr oduce any permit or license issued in
his favour for the purpose. As far offering facility of smoking sheesha is concerned, it is
governed by the provisions of the Prohibition of Smoking and Protection of Non -smokers Health
Ordinance (LXXIV of 2002), 2002 (hereinafter "Ordinance 2002"). This statute deals with the
act of smoking and placed certain prohibitions to protect the non -smokers health. To understand
the object of promulgation of the Ordinance 2002 reproduction of its preamble would be
beneficial. I t reads as under:
WHEREAS smoking and other tobacco uses is posing a serious threat to the health of
people and the environment it is expedient to provide for prohibition of smoking and
other tobacco uses in places of public work or use and in public ser vice vehicles and to
protect the health of non -smokers and for matters connected therewith or ancillary
thereto:
In the case in hand the use of sheesha is the matter in issue, thus it is to be considered that
wehtehr the use of sheesha covered by the ter m 'smoking', to bring it within the ambit of the
Ordinance, 2002, Clause (g) Ordinanc 2002 defines the term /smoking', it states:
(g) "smoking" means smoking of tobacco in any form whether in the form of cigarettes,
cigar or otherwise with the aid of a p ipe, wrapper or any other instrument.
The term as used in the Ordinance covered the act of smoking of tobacco not only restricted to
the cigarettes, and cigar, but also with any other means, either with the aid of pipe or any other
instrument. It is a fact that tobacco is used in sheesha, thus act of smoking by Sheesha is covered
by the term any other instrument.
8. Thus the act of offering sheesha in a restaurant falls within the ambit of smoking and to
be governed by the provisions of the Ordinance, 2002. This law placed a prohibition on smoking
and other tobacco uses at places of public work or use. A restaurant either covered by the term
places of public work or use would be the main issue to determine the fate of the case in hand.
Section 2 Clause (c) of the Ordinance 2002 defines the term place of public work and use as:
"(c) place of public work or use" means any place declared as such under section 3 and
includes auditoriums, buildings, health institutions, amusement centers, restaurants,
public Offices, court buildings, cinema halls, conference or seminar halls, eating houses,
hotel lounges, other waiting lounges libraries, bus stations or stands, sports stadiums,
educational institutions, libraries and the like which are visited by general pu blic but does
not include any open place:
While Section 5 of the Ordinance 2002 is an addition thereto. It prohibits the act of smoking and
other tobacco uses in any form in any place of public work or use reproduced would be
beneficial: -
"Section 5. Prohibition of smoking and other tobacco use. --No person shall smoke or
use tobacco in any other form in any place or public work or use. The Federal
Government may however, issue guidelines for permitting designated smoking areas in
premises or places whe re adequate arrangements are made to protect the health of non -
smokers."
Section 5 of the Ordinance 2002 not to be read in isolation, rather to be read to co -jointly with
Section 2(c) and (g) the Ordinance, 2002, in addition to Section 11 of the Ordinanc e. The statute
placed a bar on smoking of tobacco in any form at places of public work and use, and the act
constitutes an offence punishable thereunder.
9. The referred provisions be kept in sight while dealing with the case in hand. According to
the pe titioner he offered sheesha in his restaurant, and the tobacco used for the purpose was
imported legally, thus the business was legally carried out. The place of public work or uses as
defined also contained the term 'restaurant', thus extended the applica bility of the law on the
place used as restaurant. In view thereof the offering of sheesha in the restaurant by the petitioner
was contrary to the above quoted provisions. The legal import of tobacco would bring no change,
nor entitled him for its use in t he referred place.
10. As far legality of order dated 18th August 2014 is concerned, it was issued by the
Government of Balochistan in exercise of powers available under Subsection (6) Section 144,
Cr.P.C. The subsection reads as under:
"Section 144 (6 ). No order under this section shall remain in force for more than two
consecutive days and not more than seven days in a month form the making thereof
unless, in cases of danger to human life, health or safety, or a likelihood of a riot or any
affray, the Provincial Government, by notification in the official Gazette, otherwise
directs.
This provision specifically empowers the Provincial Government to make an order to the effect.
No illegality was pointed out to be committed by the Provincial Government in issuance of the
order questioned in the instant petition. The petitioner was unable to establish that any of his
fundamental rights was denied by issuance of the order. He being citizen of the country has the
right to enter in any profession or occupati on or to conduct any trade or business, but the Article
18 of the , Constitution specifically spelt the nature of the profession occupation, trade, and
business as lawful, which is missing in the instant case..
In view of the above discussion the petitio ner failed to make out a case. The petition is dismissed
for want of merit.
MH/9/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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