P L D 2023 Balochistan 31
Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ
ALLAHI DAD and 4 others ---Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 5 others ---
Respondents
Constitution Petition No. (t) 159 of 2022, decided on 21st November, 2022.
Constitution of Pakistan ---
----Art. 16 ---Right to assembly ---Scope ---Peaceful protests in order to highlight genuine
grievances of any segment of society are considered as healthy signs of a vibrant society but
such p rotests or sit -in must not infringe the fundamental rights of other individuals who are
equally entitled to express their disagreements out of their free will to such Dharnas and protests.
Suo Motu Case No.07/2017 PLD 2019 SC 318 rel.
Obaid Ullah for Pe titioners.
Nasratullah Baloch, Assistant Advocate General assisted by Lal Jan, DSP, Pasni for
Respondents Nos. 1 to 5.
Date of hearing: 5th October, 2022.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioners have filed this
constitution petition, who are in the business of fishing and have hired the services of number of fishermen, majority of whom belong to the Province of Sindh. The grievance of the petitioners is that the respondent No.6 who, according to petitioners, is a political activist, is exe rting illegal pressure upon the local administration to expel the Sindhi/non-
local fishermen from District Pasni. The petitioners alleged that the said political activist, by using illegal tactics, had blocked the Coastal Highway by announcing "Dharna" (si t-in) and,
according to petitioners, the local administration had succumbed to his illegal tactics and concluded some illegal agreement which is not available in black and white but according to petitioners, 15 days' time was stipulated to expel the Sindhi labourers from Pasni.
The petitioners further contend that after said "Dharna ", threats were extended to the
petitioners and other businessmen of the area to expel the non- local labourers or face the
consequences; in this regard, FIRs were lodged agains t the respondent No.6 but the local
administration is neither arresting the actual culprits nor filing challans of the FIRs in the
competent Courts of law. Per petitioners, as a last resort, they have filed this constitution petition under Article 199 of t he Constitution of Islamic of Pakistan, 1973, which carries the
following prayer:
"a) Issue writ of mandamus directing therein to the respondents to take necessary action and protect the right of Petitioners as guaranteed by Constitution of Pakistan, 1973.
b) Any other efficacious and equitable relief(s) as this Honourable Court deem fit and proper under the circumstances of this constitution petition."
2. Learned counsel for the petitioners contended that the people of Pasni are very
peacefu l and patriotic citizens of the country but few individuals, by using illegal tactics in
order to achieve ulterior motives on the basis of parochial considerations, are bent upon to destroy the peace and harmony of the area in the name of self -coined sloga ns which in fact
have nothing to do with the development and progress of the area. Learned counsel further contended that the local administration, instead of nipping the evil in the bud, has become instrumental to such like forces which is extremely unfor tunate and the local administration
is bargaining peace at the cost of fundamental rights of the people of the area.
3. We have heard learned counsel for the petitioners as well as learned Assistant
Advocate General at length.
4. Once Martin Luther King Jr . said, "peace is not absence of tension but presence of
justice". The so -called slogans emanating parochial considerations and narrow -minded
approach, can only be answered by upholding the supremacy of Constitution and rule of law.
The Constitution of Isl amic Republic of Pakistan guarantees self -respect and freedom of
movement and recognizes these principles as fundamental rights of every citizen; the cardinal principle rather sine qua non for any civilised society is, no one is above the law.
We have been informed that certain sit -in had taken place at Coastal Highway due to
which people of the area suffered miserably as the means of communication had been completely blocked. It has been argued by learned counsel for the petitioners that the local adminis tration gave certain assurances to respondent No.6, who purportedly is a political
activist. Though no such agreement or memorandum of understanding has been brought on record by the petitioners but in case there is any such understanding, tacit or express ed,
which infringes any fundamental right recognized by the Constitution of Islamic Republic of Pakistan, 1973, the same is not only illegal, unconstitutional but in case, any government officer is the part of such illegal practice, he has to face the cons equences in accordance with
law and Constitution.
5. Peaceful protests in order to highlight genuine grievances of any segment of society
are considered as healthy signs of a vibrant society but such protests or sit -in must not
infringe the fundamental rig hts of other individuals who are equally entitled to express their
disagreements out of their free will to such Dharnas and protests. In this regard, we have sought wisdom from the judgment passed by the Honourable Supreme Court of Pakistan in Suo Motu Cas e No.07/2017, famously known as Faizabad Dharna Case
1, the relevant excerpt
whereof is reproduced herein below:
"27. The "right to assemble peacefully and without arms" is "subject to any
reasonable restrictions imposed by law in the interest of public or der". The right of
assembly is recognized as a right to preserve the democratic order, but it cannot be used to overthrow a lawful government. Nor can the right of assembly be used to bring about a revolution or insurrection. These principles were enunciat ed in the case
of Islamic Republic of Pakistan v. Abdul Wali Khan:
It goes without saying that while the right of Assembly is a very important right for the preservation of a democratic political system yet it cannot be denied that no State can tolerate u tterances or actions which threaten to overthrow the Government
established by law in that State by unlawful or unconstitutional means. As observed by the American Supreme Court in the case of American Communications v. Douds [(1951) 340 US 268], 'Freedom of speech, press and Assembly are dependent upon
the power of the constitutional Government to survive. If it is to survive, it must have the power to protect itself against unlawful conduct and, under some circumstance, against incitements to commit unlaw ful acts'.
The maintenance of public order is the paramount duty of the State. If anyone propagates, "hatred or contempt, or excites or attempts to excite disaffection towards the Federal or Provincial Government" they commit the offence of sedition for w hich
the punishment is imprisonment for life. TLP sowed discord and dissension, it resorted to mob- rule, rioting and the destruction of property.
28. The House of Lords of the United Kingdom has determined that, "The right of assembly, of demonstration, i s of great importance but in English law it is not an
absolute right which requires all limitations on other rights to be set aside or ignored". With regard to assembly on a public highway or a public place it observed that if these:
... are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass. Subject to these qual ifications, therefore, there would be a public right of peaceful
assembly on the public highway.
29. The rights to free movement, peaceful assembly and freedom of speech and expression (respectively Articles 15, 16 and 19 of the Constitution) are provide d in
Article 19 of the Indian Constitution, but in India too such rights are not absolute. The Indian Supreme Court elaborated in the case of Bimal Gurun v Union of India, that:
Demonstrations whether political, religious or social or other demonstrations which
create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is
intended the feelings of the group which assembles. From the very nature of things a demonstration may take various forms; it may be noisy and disorderly', for instance
stone -throwing by a crowd may be cited as an example of a violent and disorderly
demonstration and this would not obviously be within Article 19(1) (a) or (b) ".
In Re Ramlila Maidan Incident case the Supreme Court of India observed:
To maintain and preserve publi c peace, and public order is unequivocal duty of the
State and its organs... There can be no social order or proper State governance without
the State performing this function and duty in all its spheres.
The right of assembly, the freedom of association and the freedom of speech cannot be exercised by infringing the fundamental rights of others. Without obtaining permission public meetings cannot be held on roads. Nor can a road be used as a camping ground or to assemble on it indefinitely. Roads are for vehicular use and
pavements are for the use ofpedestrians to enable the travelling public to move freely, which is their fundamental right."
(Emphasis provided)
6. Learned Assistant Advocate General has stated that the official respondents shall
leave no stone unturned to ensure rule of law and supremacy of Constitution. He further stated that the fundamental rights recognized by the Constitution shall be ensured to every citizen residing within the domain of their jurisdiction. He stated at bar t hat the official
respondents have not concluded any illegal agreement with any individual and legal protection shall be provided to all the businessmen of Pasni including the petitioners in accordance with law and in case miscreants create any hurdle in th e legal businesses of the
people of the area, they shall be dealt with iron fist by showing zero tolerance to such illegal activities.
In view of the abovementioned legal and constitutional position as well as considering
the statement so made by the lear ned Assistant Advocate General, we allow this petition and
direct the official respondents to ensure that the fundamental rights of petitioners to do legal business of their choice, to hire the labourers at their option out of their free will and to move freely wherever they want, are ensured in letter and spirit.
Petition is allowed.
SA/31/Bal. Order accordingly.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,
let us know.