Per Mir Hazar Khan Khoso, C.J.(a) Constitution of Pakistan (1973), Art. 199, 4, 25, 36, & 37(h)—
r/w Prohibition (Enforcement of Hadd) order (4 of 1979)— Arts. 17 and 19-Balochistan
Prohibition (Enforcement of Hadd) Rules, 1979, R.18—
It is admitted position that sale of liquor in Islamic State of Pakistan is totally banned. Its profession could be adopted only on basis of a licence issued by a competent authority under certain conditions. Definition of word ‘licence’ finds its place in case of Government of Pakistan v. Zamir Ahmed and others reported in P L D 1975 SC 667.[p. 75] A.
Issuance of a licence for sale of liquor is purely a privilege. It does not create any right in a licensee. Therefore, no fundamental rights are violated by its cancellation. A licence simpliciter can, therefore, be withdrawn at any time, and such order is not justifiable in extraordinary jurisdiction of the Court.
Besides, in Islamic State of Pakistan sale/use of liquor is against Injunctions of Islam. I am, therefore, not inclined to exercise my discretion in favour of the petitioner on the principle enunciated in case of Federation of Pakistan v. Haji Muhammad Saifullah khan reported in P L D 1989 SC 166 relevant page 194).
“The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It is well-settled that individual interest just be subordinated to the collective good. Therefore, we refrain from granting consequential relief, inter alia, the restoration of the National Assembly and dissolved Federal Cabinet.” [p.75] B & C.
In the light of the judgment as quoted herein above it is clear that a non-Muslim citizen of Pakistan may be granted a licence to manufacture and possess intoxicating liquor for sale on religious ceremonies to those non-Muslim citizens of Pakistan or foreigners who hold valid permits for use and consumption of intoxicating liquor on such occasions.
The provincial Government, or subject to the control of the said Government, the Collector, is competent to issue such licences on such form and conditions as prescribed under Rule 18 and the Balochistan Prohibition (Enforcement of Hadd) Rules, 1979 (hereinafter referred to as “Hadd Rules”). [p. 79] D
Article 4, speaks of right of individuals to be dealt with in accordance with law and particularly Article 4(c) where it is laid down that no person shall be compelled to do that which the law does not require him to do would be relevant. Likewise Article 25 speaks equality of citizens that all the citizens are equal before law and are entitled to equal protection of law. Article 36 is a specific Article for protection of minorities rights wherein it is envisaged that the State shall safeguard the legitimate rights and interest of minorities including representation in the Federal and Provincial services. Article 37(h), contemplates that the State shall prevent the consumption of Alcoholic lequour otherwise than medicinal, scientific, industrial and in the case of non-Muslim religious purposes.
Thus, after having a cursory glance at the provisions of law and the Constitution, it may be observed that there is no prohibition to the issuance of licence to the minorities to manufacture or possess intoxicating liquor to be used for sale on their religious ceremonies festivals. [p. 80] E
There is no dispute that Government of Balochistan or Director Excise and Taxation Department ever alleged any contravention of the conditions as laid down under Article 19 of the Hadd Order or Hadd Rules made thereunder against the license vendors nor they issued them any notice for canceling such licences. In this regard there is material on record that decision for cancellation of the licences granted to the petitioners was made as a result of policy or policy decision taken by the Chief Minister of Balochistan and not on the basis whether or not the petitioners defied any condition as laid down in such licences. The Director also did not apply his mind independently but in pursuance of the policy decision taken by the Provincial Government of Balochistan, he passed the orders of cancellation without issuing any notice to the licence vendors/holders. Thus the decision was taken against the principle against the principles of natural justice (audi alteram partem). [p. 80] F
But the learned counsel further argued that once a licence is granted and after its grant steps in pursuance thereof, then rights are conferred on such a person by virtue of law as such it becomes a right. Our attention was drawn to the case of Karamat Hussain and others v. Muhammad Zaman and others as reported in P L D 1987 SC 139. While making a distinction between the two the Honorable Supreme Court in the aforesaid case held:–
“A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do enjoy while a right is some benefit conferred on a person by virtue of a given law.”
The given law in the instant case is Hadd Order and the Rules made thereunder. Licence was granted by the Collector under Article 17 of the Hadd Order to the petitioners, therefore, this could be cancelled only in accordance with law, and more so the cancellation could not be ordered without notice to the petitioners. I find substantial force in the contention of Mr. Basharatullah that licence issued to the petitioners were not licences simpliciter because after issuance of the same the petitioners purchased stock of liquor to be provided to the lawful consumers. With the issuance of such licences a right was created by law in favour of some of the petitioners as traders, and also a benefit is created in favour of others as consumers who are holding permits under law to purchase intoxicating liquor for consumption from such traders. With the cancellation of such licences without any notice, rights as created by law in favour of both traders and consumers have been infringed. In the circumstances, it becomes absolutely difficult if not impossible, to hold that licences issued were licences simpliciter. These licences, therefore, fall in the exception of the ruling as mentioned in P L D 1975 SC 667.
In my considered view and keeping in view the distinction made by the Honorable Supreme Court between a privilege and a right, issuance of licences to the petitioners created a right in their favour as they have purchased the entire stock kind, therefore, could not be cancelled without any notice to the petitioners, as cancellation of such licences would indeed put the petitioners/licence-holders to monetary loss and otherwise it would be against the principles of audi alteram partem. It may further be observed that the law specifically provides conditions, which, if violated, would entitle the Collector to cancel licences. Admittedly the Collector did not act in accordance with the provisions of Hadd Order, thus the well-settled principle that things should be done in accordance with law or should not be done in accordance with law should not be done at all, was not adhered to. The orders of cancellation, therefore, being violative of principles of natural justice as well as ex facie oppressive and unjust being against the manner provided by law is not sustainable. [p. 81] P, G & H.
In my calculated opinion a decision has to be taken keeping in view the circumstances of each case and the nature of order passed in each case to determine whether a particular case is justifiable or not. If a statutory functionary acts ex facie in an unjust and oppressive manner, the High Court should not refrain to exercise its writ jurisdiction to grant relief to an aggrieved party. [p 82] I
In order to prove that greater harm would be caused not a single instance or consequence was put forward by the learned Advocate-General except that it would injure the sentiments of the Muslim Majority. In reply to said argument, suffice is to observer that it is the Constitution of the country which has conferred certain rights to the minorities and the injunctions of great religion of Islam nowhere provides for infringing the rights of minorities. The right of the minorities may not be allowed to be infringed on mere assumptions and presumptions and must be determined with reference to law and Constitution instead of idiosyncratic and subjective feelings. I am, therefore, with all respect, in full agreement with the observations made by the Honorable Supreme Court that “let the justice be done and let the heaven not fall”
From the above discussion I am inclined to declare that the orders of cancellation of licences issued to the petitioners by respondent No.2 on the direction of the respondent No.1 being violative of the principles of natural justice and of law, have been passed without lawful authority and thus, carry no legal effect. It may be observed that in C.P. No. 179 of 1989, since the date of the licence has already expired in the year 1989 and no licence to be valid at present was produced along with the petition, the said petition is anfractuous. [p. 82, 83] J, K.
Before dialating upon merits it may be seen that grievance of petitioners relates to right for consumption by non-Muslim citizens of Pakistan as part of religious ceremony or by non-Muslim foreigners during subsistence of licences which is to expire on 30th of June, 1990. Learned counsel for petitioners have candidly conceded that there is absolutely no religious ceremony or recognized ritual of any community of non-Muslims during remaining period of licence i.e. June, 1990; therefore, obviously to that extent, purpose of licence challenged through these petitions ceases to exist. [p. 84] L
It may be seen that as regards supply of liquor to foreigners, learned Advocate-General on the basis of official record categorically asserted that none at all has even approached for grant of requisite permits. This factual position has not been controverted By the other side. Thus in the absence of demand by any foreigner, petitioners cannot truly aggrieved. [p. 84] M
The licence, for restricted trade of alcohol, therefore, merely provides a facility, benefit or advantage to the licence-holder for distribution or sale of the intoxicant subsistence of licence. Furthermore factually even during subsistence of valid licence the sale to all category of persons is regulated by the permits issued by Department. Accordingly, withdrawal or cancellation does not automatically affect any vested right of licence-holder. At best main grievance could be, the likely loss to the tune of stock-in-hand, or possible gain subject, however, to independent determination before appropriate forum. In the circumstances, I am inclined to agree with the conclusion in dissenting note that cancellation of licence simpliciter is not justifiable, and petitioner could not voice failure of natural justice because merely possibility to make some gains has been allegedly affected. Adequate alternate remedy by way of compensation being available to petitioner, even otherwise constitutional petitions are not maintainable.
Next it may be seen that drinking has been prohibited by Almighty Allah, because of its effects. These dictates supersede manmade laws, and extends to the benefits of whole mankind. Even under the law, it appears that non-Muslims claiming permission for drinking have to show that their respective religion recognizes or sanctions drinking of alcohol. Therefore, general principle of law in case Federation of Pakistan v. Muhammad Saifullah reported in P L D 1989 SC 166 and followed by Division Bench of this Court in case Muhammad Farooq and others v. The Deputy Commissioner, Quetta District, Quetta and others 1989 CLC 1823 are fully attracted. Consequently, I am, persuaded to hold that keeping in view facts it is not a fit case for the grant of discretion in favour of petitioners.
[p. 85, 86] N, O.
Advocate for the Petitioners:
Advocate for the Petitioner (in C. Ps. Nos.180, 181 and 187 of 1989).
Advocate for the Respondents:
Dates of hearing: 16th April; 9th, 14th and 31st May 1990.