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