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Judgment Sheet
IN THE PESHAWAR HIGH COURT, PESHAWAR. JUDICIAL DEPARTMENT
W.P No…3248 of…2013.
JUDGMENT
Date of hearing…………………25.02.2014……………………...
Appellant/Petitioner (s)………Haji Lal Muhammad…………………..
Respondent (s)………………..Federation of Pakistan..
YAHYA AFRIDI, J.– Haji Lal
Muhammad, petitioner, is seeking the
Constitutional jurisdiction of this Court
and praying that:
“the impugned action of members/supporters of PTI, its allied with regard to blockage and checking of trucks loaded with different items on way to Afghanistan as illegal unlawful and of no legal effect, that respondents Nos.1 to 4 be directed to implement the role of law by controlling the situation and addressed agonies of citizens including the petitioner and to restrain the members/supporters of
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Political Parties from violating rules of law.”
2. In essence, the petitioner is
aggrieved of the action of the members of
Pakistan Tahreek Insaf and its supporter of
blockading the national highway and also
checking of trucks loaded with different
items distant to Afghanistan and the
inaction the official respondents to restain
them and thereby fail to enforce the writ of
the State and the law. It was further
averred by the petitioner that the matter was
highly publicized in the national dailies, but
to no avail. Having no adequate alternative
remedy available, the petitioner claims, led
him to file the present writ petition.
3. The respondents Provincial
Government was put to notice and in their
written comments, the factual assertions
regarding the blockade was not denied and
in fact the obligation and duty of the State
was admitted in clear terms that:-
“Correct to the extent that the respondents are charged with duties
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of maintenance of peace and order and the respondents have always quickly responded to the call of duty. However, the ongoing fight against terrorism is the main hurdle and impediment in maintenance of law and order situation. Anyhow, respondents are trying their best to maintain pace at the risk of lives of the members of the enforcing agencies.”
4. The learned AAG, appearing on
behalf of the respondents contended that the
leadership of Pakistan Tehreek-e-Insaf had
staged protest against the drone attacks but
the Provincial Government had adopted
security measures to maintain peace during
the protest procession and not allowed
anyone to take the law into their hands; that
Police during the protest procession staged
by the members of the Pakistan Tehreek-e-
Insaf had taken prompt action against such
incidents and criminal cases were
registered, vide FIR No.889 dated
26.11.2013 and vide FIR No.887 dated
24.11.2013.
5. The Valuable arguments of the
learned counsel for the parties heard and
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the available record of the case thoroughly
considered.
6. The anchor sheet of the petitioner’s
claim is based upon his fundamental right
of “Trade and Business”, as ordained under
Article 18 of the Constitution of Islamic
republic of Pakistan, 1973 (‘Constitution’),
which declares that:-
18. Freedom of trade, business or profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this
Article shall prevent---
(a) the regulation of any trade or profession by licensing system; or
(b) the regulation of trade,
commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the
Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry
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or service, to the exclusion, complete or partial of other persons.
This fundamental right of trade and
business is further supplemented and
admittedly supported by the right of every
citizen, to be treated in accordance with
law, to life and to protection of property, as
provided under Articles 4, 9, 23, 24 and 25
of the Constitution, respectively (‘First Set
of rights’). These are very forceful rights
and backed by powerful constitutional and
legal provisions, which warrant immediate
positive consideration and enforcement
thereof by the Courts of law, more
particularly, a constitutional Court.
However, this Court cannot be oblivion to
the fundamental rights of every citizen to
express his fundamental rights of freedom
of assembly, to form an association,
become members of a political party and
above all the fundamental rights of freedom
of speech, as provided under Articles 16, 17
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and 19 of the Constitution, respectively
(‘Second Set of Rights).
8. Thus this Court, while deciding the
present writ petition, has to balance the two
sets of rights. The First Set of Rights
backing the petitioner, while the Second Set
of Rights supporting members of a political
party pursuing the blockade of trade on
purportedly high moral and religious
grounds.
9. Let us first consider the rights of the
petitioner to enter a lawful business of
transport of carrying goods on a highway
distant to the Torkhum, bordering
Afghanistan and the obligations and duty of
the State to provide protection of person,
property and trade of the petitioner.
10. The right of a person to use the
public road has been judicially recognized
as a fundamental right by the apex Court in
Arshad Mehmood’s case (PLD 2005 SC
193), wherein it was declared the
fundamental right of a person to use the
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highway for the purpose of running the
business of transport. In this regard, the
discussion rendered by the Indian Supreme
Court in Saghir Ahmad’s case (AIR 1954
SC 728) was cited with approval.;
“but the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public right over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the pubic. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of h is right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned Advocate General that the user of a public road for purposes of trade is an extra ordinary or special use of the highway which can be acquired only under special sanction from the State. (emphasis provided)
This right to passage and to carry on
trade and business, discussed above by the
Indian Supreme Court was further
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developed in Sodan Sing’s case (AIR 1989
SC 1988), Nawab Khan’s case (AIR 1997
SC 152) and in Jagdeesam’s case (AIR
1997 SC 1197) and finally in Sheikh
Dastagari’s case (AIR 2002AP 383),
wherein it was declared that:
“Street trading is a recognized fundamental right. The right to carry on trade and business on the streets or pavements of the streets without causing any inconvenience to the passers-by also extends to Panchayats also and the respondents cannot totally prohibit such business in violation of the fundamental right.” (emphasis provided)
11. Now moving on to the fundamental
right to life, as provided under Article 9 of
the Constitution and first expounded by the
Supreme Court in Shehla Zia’s case (PLD
1994 SC 693), adjudged life to include all
such amenities and facilities, which a person
born in a free country is entitled to enjoy
with dignity legally and constitutionally. It
was also clearly stated in un-equivocal terms
that a wide meaning should be given to the
term life, so as to enable a man not only to
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sustain life but to enjoy it. This principle
was cited with approval by the apex Court in
Arshad Mehmood’s case (Supra), wherein
the apex Court further expounded the need
for the Islamic concept of fair play and
social justice in an egalitarian society, as is
idealized under the Objective Resolution of
our Constitution, which has now become an
integral part of the Constitution by insertion
of Article 2-A therein. In this regard the
apex Court cited with approval the
discussion on the matter explained in
Shaukat Ali’s case (PLD 1997 SC 342);
“We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concept of fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been
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earning livelihood for considerable long period on the basis of licences granted by the Railways, will be treated fairly.”
12. Apart from the fundamental rights of
the petitioner, as provided under the
Constitution and discussed hereinabove,
this Court is also alive to the rights of the
petitioner under the provisions of the The
Afghan Transit Trade Agreement, 1965
(“Treaty”) entered by the Government of
Pakistan with Afghanistan, wherein Article
X read with Article 8 of the Protocol
annexed to the Treaty, provides for both
the contracting Countries to, inter alia,
adopt all necessary measures to facilitate
the flow of traffic between the two
countries and also seek all possible means,
within their power to remove any factor,
which may hinder the transit facility
provided under the Treaty.
Thus, the petitioner may also seek to
invoke the obligations of the State under
International Law to maintain clear flow of
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traffic on the National Highway leading to
Afghanistan, so as to facilitate, without
any hindrance, the transit carried out by
the petitioner.
It is by now settled that
International Law, unless in direct conflict
with the Municipal Law, ought to be
applied and respected by Municipal Courts
in deciding matters arising there form. In
similar circumstances, the rights of a trader
under the Treaty, seeking transit trade to
Afghanistan has been dealt with
extensively in M/S Najib Zarab Ltd. Case
(PTCL 1996 CL 507).
13. Apart from the obligations of the
Government of Pakistan under
International Law for ensuring
compliances to the terms of the Treaty, the
legislature has expressly provided
protection to Transit Trade under section
129 of the Customs Act, 1969 (“Act”).
Under the said provision of the Act, goods
imported into Pakistan for Afghanistan or
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any other country are provided transit
facilities for its safe transportation to its
final border destination. The petitioner has
placed on record his registration with the
Revenue authorities and the record
supporting safe transportation of goods to
its ultimate destination at Turkham Border.
14. Hence, the petitioner’s stance is
supported by rights arising not only under
International law but also Municipal laws.
15. In England, the right to use a highway
and the obstruction thereon is dealt with, as
‘trespass’, ‘public nuisance’ and ‘private
nuisance’ under the Law of Tort, while the
same matter may even lead to penal
consequences under the Highway Act,
1980.
The matter of ‘trespass’ was initially
discussed in detail with clarity by Lopes LJ
in Harrison v Duke of Rutland (1893) QB
142 at 154, CA), wherein he explained the
rights to use of highways and the
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obstruction thereto causing ‘trespass’ in
terms that:-
“If a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and re-pass at their pleasure for the purpose of legitimate travel and the use of the soil for any other purpose, whether lawful or unlawful is an infringement of the rights of the owner of the soil. In addition, the use of a highway for
purposes incidental to passage were also
considered lawful, if for proper use:
“……..Thus a tired pedestrian may sit down and rest himself. A motorist may attempt to repair a minor breakdown, Because the highway is used also as means of access to places abutting on the highway, it is permissible to queue for tickets at a theatre or other place of entertainment or for a bus.”
To constitute ‘public nuisance’, the
misuse of a highway must be by a
‘unreasonable user’, as declared in
Lowden’s v Keaveney ((1903) 2 IR 82). In
Hubbard v Pitt case ([1976] QB 142),
Forbes J, explained that ‘unreasonableness’
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was established, if it could be shown that
passage was obstructed.
The determining factor is always,
whether the obstruction challenged was due
to an ‘unreasonable use’ of the highway. In
Nagy v Weston (I All ER 78, (1965) I WR
280), Lajos Nagy parked his van in a lay-by
where there was a bus stop, in order to sell
hot-dogs from it. He was there for five
minutes before he was arrested. The justices
found that although the road was wide, it
was nevertheless busy at that time of night
(10.15 p.m.), carrying heavy traffic
including buses, which would be pulling
out of the lay-by. The Court declared that
there was therefore, ‘unreasonable use’ by
parking a van even for five minutes. His
conviction was affirmed by the Divisional
Court; Per Lord Parker CJ at p. 284:
“There must be proof that the use in question was an unreasonable use. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends upon all the circumstances, including the
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length of time, the obstruction continues, the place where it occurs, the purpose for which it is done, and of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction.”
This assumption has been criticized
by P. Wallington in his writing ((1976) CL
82, 101-106), wherein he argues:
“The test is…. Not whether a demonstration is something reasonably incidental to passage, but whether it is reasonable in the context of rights of highway users generally. If passers-by must make a detour, their inconvenience must be balanced against the interest in allowing the demonstration; it will be relevant to consider the decree of obstruction and whether the demonstration could conveniently have been held at a less obstructive venue or off the highway.”
Private nuisance, on the other hand is
described in Winfield and Jolowics on Tort
(12th edn, p. 380) as;
‘unlawful interference with a person’s use or enjoyment of land, or some right over or in connection with it. ….The blocking of access to private premises is an example of private nuisance’.
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Lord Scarman in his Report on the
Red Lion Square Disorders, discussed
demonstrations and the public highway
(Cmnd. 5919, paras. 122,133) in terms
that:
“English law recognizes as paramount the right of passage; a demonstration which obstructs passing along the highway is unlawful. The paramount right of passage is, however, subject to the reasonable use of the highway by others. A procession, therefore, which allows room for others to go on their way is lawful; but it is open to question whether a public meeting held on a highway could ever be lawful for it is not in any way incidental to the exercise of the right of passage….I think the priority that the law gives to the right of passage is sound.”
On the other hand, a ‘public
nuisance’, if it leads to obstructing the flow
of traffic on a highway, would have
constitute an offence and result in penal
consequences provided under section 137
of the Highways Act, 1980.
16. Having discussed the First Set of
Rights supporting the claim of the
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petitioner to carry out his business of
transporting goods in transit to Afghanistan,
we may now turn to the rights of the
members of ‘Pakistan Tahreek-e- Insaf’,
who have, as reported without any denial in
the national dailies, expressed their anguish
by lying blockade to transportation of
goods to Afghanistan on a national
highway, declaring the same in protest to
drones attack and the supplies being made
to NATO forces to Afghanistan.
16. There is no denying the right of a
citizen to join a political party and to
express his views, as is clearly provided
under the fundamental rights of our
Constitution, set out above, as the Second
Set of Rights.
17. In other jurisdictions, like United
States of America (‘USA’), the First
Amendment to the Constitution of USA
provides that:
“Congress shall make no law ……..abridging…..the right of the people peaceably to assemble…….”
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It is noted that this freedom of
assembly is cognate to the right of free
speech and is thus declared by the superior
Courts in the USA to be equally
fundamental. In De jonge v. Oregon
(1937) 299 US 353, the Court has gone to
the extent of validating a meeting of a
political party, whose object is to secure
political or social changes by violence,
when the assembly is peaceful, the meeting
and discussion therein were not declared a
crime or even unlawful. This view was
followed in Yates V. US (1956) 354 US
298, wherein Justice Harlan declared that:
“mere doctrinal justification of forcible overthrow, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis”.
The concept of this freedom of
association has been protected under
International Law, as provided under
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Article 20 of the Universal declaration of
Human Rights, 1984, says reads as under:-
“Everyone has the right to freedom of peaceful assembly and association”.
While Art. 29 (2) (supra) further
provides---
“In the exercise of his rights and freedoms, everyone shall be subjected only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others of morality, public order and the general welfare in a democratic society.”
18. Despite the clear and expressed rights
to a person to form an association or a
Political Party or become a member thereof
and express his views, none and that too
under no circumstances can any of these
rights, be it fundamental and expressed in a
written Constitution, be ever declared as
absolute. No one can be allowed to exercise
one’s right in a manner so as to infringe
upon the rights of another. Each is to enjoy
his rights within the confines of the law,
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morality and social justice. Transgression
by any, whether powerful or weak, cannot
be allowed so as to disturb the social
harmony of our society. In fact, with the
fundamental rights bestowed upon a citizen,
there is also an express inviolable
obligation on him of obedience to the
Constitution and the law, as expressly
enshrined in sub-Article (2) of Article 5 of
the Constitution, which provides;
“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.”
Thus all those, who are seeking to
express their impugned anguish, may do so
but in a lawful manner, without infringing
upon the rights of others and violating the
law. By blockading the highway, they are
obstructing the passage of others including
that of the petitioner and thereby they can
surely be termed as “unreasonable users”.
On the other hand, the petitioner is
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carrying on his lawful trade and business,
but for the impugned action and inaction of
respondents.
20. Now, when we review the written
comments filed by the Provincial Police
Officer and the Home Secretary of the
Province, it is noted that they in no way shy
away from this primary obligation and duty
cast upon them under the Constitution. In
fact, they have gone to the extent of
registering criminal cases against those,
who were enforcing the blockade. In view
of the ongoing investigation of the said
cases, this Court would refrain to comment
on the criminality of the impugned
blockade, lest the same be prejudiced.
Suffice it to state that it is expected that the
investigation in the said cases be proceeded
in accordance with law and would lead to
its logical conclusion.
21. Accordingly, for the reasons
discussed hereinabove, this writ petition is
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allowed in terms that;
(i) Declare the action of all those
who are hindering or
obstructing the lawful business
of the petitioner in safe
transportation of goods in
transit to Afghanistan is
violation of the petitioner’s
fundamental rights under
Articles 9,18,23,24 and 25 of
the Constitution land thus to be
illegal and without lawful
authority.
(2) Direct the official respondents
to protect the rights of the
petitioner to carry on his lawful
business of transportation and to
ensure that none obstructs the
safe use of highways in an
illegal and unlawful manner and
thereby violating the law.
Announced on: 25th February, 2014 J U D G E J U D G E GULAB
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