لانگ مارچ اور گرفتاریوں سے متعلق سپریم کورٹ کا آرڈر۔

 P L D 2022 Supreme Court 511

(a) Constitution of Pakistan---

----Arts. 9, 15, 16, 184(3) & 204(2)(a)---Constitutional petition under Article 184(3) of the Constitution---Protest march by a political party---Damage and destruction of public and private property---Acts of arson---Chairman of political party in question alleged to have violated the assurances given to the Supreme Court to remain peaceful---Observations and directions given by the Supreme Court after alleged violation of the assurances, stated.

Per Umar Ata Bandial, CJ.

Counsel appearing before the Supreme Court on behalf of the leadership of the political party gave a categorical assurance to the three Member Bench of the Supreme Court that the party rally would neither block the Sirinagar Highway nor otherwise cause inconvenience to the public and citizens at large and that their rallies shall be conducted in a peaceful and lawful manner without causing any damage to public or private property. In view of these commitments, the three Member Bench of the Supreme Court passed its order on 25-05-2022 ('the 25th May order") directing the Chief Commissioner, Islamabad Capital Territory ("ICT") to provide the ground located in the area between Sectors H-9/G-9 of Islamabad for the political rally; and also directed the Inspector General of Police ("IGP"), ICT to forthwith take measures including making security arrangements to prepare the venue for holding the rally.

The Attorney General argued that having agreed to hold the protest rally at the ground in the H-9/ G-9 area of Islamabad as recorded by the order of the Court, the Chairman of the party shortly thereafter instructed his party supporters to reach D-Chowk in the Red Zone of Islamabad in violation of the assurance given to the Supreme Court. To establish this retraction a video recording of the Chairman's statement made after the passing of the '25th May order' was played on the multimedia screen before the Court. The Attorney General further argued that the Chairman appears to have invited his supporters to dishonor the assurance given on his behalf to the Court. As a result, private and public properties were damaged and destroyed. Some trees in greenbelts were put on fire; several police officers were injured by the stones pelted by the crowd and Article 245 of the Constitution had to be invoked in the middle of the night by calling the armed forces in aid of civil power.

It is apparent that the assurances conveyed to the Supreme Court by the counsel for the top leadership of the political party may have been dishonored by the workers/supporters/sympathizers of the party by proceeding to the D-Chowk in the Red Zone area and by allegedly committing acts of arson and destruction of public and private properties on the way. However, in the early morning today the Chairman of the political party reached Jinnah Avenue leading to D-Chowk and announced the postponement of his sit-in at Islamabad for six days. As a result, further damage to property or injury to human life has been averted.

Nevertheless, there remains the lurking question whether the responsibility for the events comprising reckless acts of mob anger can be blamed upon the senior leadership of the political party. So far there is no evidence or allegation that such acts were committed on the instigation of any party or happened randomly. At its most elementary level the party leader appears to have assured the holding of a political rally at the G-9/H-9 ground and therefore not to assemble and sit in another venue including at D-Chowk in Islamabad. However, the Attorney General claimed that the party workers and supporters moved forward to the D-Chowk area in response to the call made by their leader. Notwithstanding the said request by the Attorney General, it was best to exercise restraint for the time being for a number of reasons; firstly, the Chairman has called off the rally/public meeting. That gives a recess to the charged mob witnessed the night before; secondly, prudence advises that time be given for sanity to prevail among the stakeholders. In any event, facts and materials need to be collected to establish the sequence of events, the identity of the perpetrators and of the instigators, if any. At present stage therefore it is directed that the IGP ICT, the Chief Commissioner ICT, the Secretary Ministry of Interior, the Director General Intelligence Bureau, the Director General ISI shall file reports (within one week) answering, inter alia, the following questions:

(i) At what time did the Chairman make the announcement for party workers to reach D-Chowk?;

(ii) When, where and how did the crowd cross the barricade to enter a hitherto closed area?;

(iii) Was the crowd entering the Red Zone organized or supervised or did it move randomly?;

(iv) Were there any acts of provocation or breach of assurance by the Government?;

(v) Was any action or treatment meted out by the ICT police against the protesters disproportionate to the actual or perceived wrong committed by the protesters?;

(vi) How many protesters managed to enter the Red Zone? Which security arrangements, if any, were relaxed by the Executive authorities? Whether any security barrier cordons were broken or breached by protestors? Did any protestor/party worker reach the G-9/ H-9 ground?; and

(vii) How many civilians were injured/killed/ hospitalized/arrested?

There is need for verification of, inter alia, factual aspects of the events that occurred in order for the Court to evaluate and decide whether action for violation of assurances/undertaking given to the Court and recorded in its '25th May order'ought to be initiated and against whom. The disregard of assurances/ undertakings given to the Court involves separate proceedings from the present one. For independent proceedings to be maintained, relevant and credible material must be presented to the Court for it to assess whether there are valid grounds to justify appropriate action against the offending persons, if any. Therefore, the prayer made by the Attorney General in present proceedings is misconceived.

By acting upon assurances given on behalf of the top leadership of the political party and issuing directions to the Government, the '25th May order' created a balance between the mutual rights and obligations of the protesting people, the ordinary public and the duties of the State. This balance was recorded in good faith by the Court whilst trusting the representations made on behalf of the two opposing parties before it. It was disappointing to note that the bona fide effort made by the Court was disrespected. Although it was meant to create harmony between the two opposing sides for the sake of protecting public interest and the constitutional rights of the people, such order was passed by trusting the representations made and assurances given to the Court. The judicial trust reposed by the Court on the parties before it confers moral legitimacy and authority upon their actions. The resulting high moral ground lends credibility to the entitlement and to the propriety of actions taken by such parties. In the present case, to say the least, the moral high ground held by the parties has diminished because public rights, interests, and property of the disinterested public have been breached and damaged badly. It was expected that the high functionaries of the Executive throughout the country and the top leadership of the political party in question and other political parties shall abide and settle a fair code of securing free, fair, and peaceful political activity in the country leading to the holding of the national election.

In the present case, the leadership of the political party and its supporters have presently withdrawn from indulging in any political protest and rallies in Islamabad and the roads and pathways are open allowing for free movement of the public within and to the city. Purpose of present petition filed has been served and the same has borne fruit. It has therefore become infructuous. Accordingly, petition was disposed of as having become infructuous.

Per Yahya Afridi, J dissenting.

The Attorney-General has, in the present application, after alleging violation of the '25th May order' by the leadership of the political party, requested the Court to pass prohibitory and regulatory orders so as to allow the law enforcement agencies to take action against the miscreants including but not limited to causing arrest of the miscreants. Said request was very surprising. The Attorney-General, who is the principal law officer of the Federal Government, has asked the Supreme Court to pass "prohibitory and regulatory orders" to maintain the law and order situation in the country. The prayer/request made is against the very principle of trichotomy of powers enshrined in the Constitution, which has assigned separate roles to the three organs of the State: the legislature, the executive and the judicature. To maintain law and order in the country is the domain and mandate of the executive. Thus, the very request/prayer is contrary to the constitutional mandate and is, therefore, not legally entertainable.

There is credible material before the Supreme Court for initiating independent contempt proceedings against the Chairman of the political party in question, who allegedly disobeyed the '25th May order'. The video-recording of the Chairman's statement was played on multimedia screen in open court during the court proceedings. The said statement coupled with his conduct that followed thereafter in proceeding beyond the venue decided in the '25th May order' for the political gathering, is sufficient to prima facie show that the Chairman disobeyed the '25th May order'.Instead of calling for reports from the officials of the State Agencies/Departments, as directed by the majority view, there is sufficient material before the Supreme Court to proceed against the Chairman for the alleged disobeyance of the '25th May order', which warrants the issuance of notice by the Supreme Court to the Chairman to explain why contempt proceedings should not be initiated against him.

Per Umar Ata Bandial, CJ. [Majority view]:

(b) Constitution of Pakistan---

----Arts. 9, 15 & 16---Freedom of movement and assembly---Such freedoms had to be read in conjunction with the most crucial right to life.

Article 15 of the Constitution, which secures the right of free movement, and Article 16, which protects their right of freedom of assembly, are to be read in conjunction with the most crucial right guaranteed by the Constitution, namely, the right to life.

The right to life and liberty is interpreted widely and the same cannot be interfered except as authorized by law. Likewise, the freedom of movement can be subjected to reasonable restrictions imposed by law in the public interest. The freedom of assembly may be regulated by similar restrictions applied in the interest of public order. The foregoing limitations on the rights granted by the Constitution empower the State to take only such reasonable, proportionate and lawful action that is necessary in aid of public interest and public order so that public place, public life and property are not disturbed, disrupted or destroyed.

Whilst right of peaceful protest is a constitutional right it must be exercised subject to permission by the State. Such permission must be granted unless there are reasonable restriction imposed on valid grounds in terms of Articles 15 and 16 of the Constitution. In other words, the right of protest cannot be denied without lawful, reasonable and proportionate grounds nor can such Executive authority hamper public life or injure public or private property.