Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Constitutional Petitions Nos. D – 1007, 1008, 1009, 1010, 1011,
1012, 1013, 1018,1022, 1032, 1034, 1035, 1037, 1038, 1058,
1063,1064, 1065, 1070, 1078, 1079, 1083 and 1084 of 2018.
Before :
Mr. Justice NadeemAkhtar
Mr. Justice Muhammad Faisal Kamal Alam
Mr. Kamran HaiderAbbasi, Advocate for
petitioners
in C. P. Nos. D‑1007, 1008, 1009,
1010, 1011 and 1022 of 2018.
Mr. HatimSakhiRajper, Advocate for petitioners
in C. P. Nos. D‑1012 and 1013 of
2018.
Mr. ShaikhAmanullah, Advocate for petitioners
in C. P. Nos. D-1018 and 1058 of 2018.
Ms. RizwanaJabeenSiddiqui, Advocate for
petitioner
in C. P. No. D‑1032 of 2018.
Mr. Shabbir Ali Bozdar, Advocate for petitioners
in C. P. Nos. D-1034 and 1035 of 2018.
Mr. Deedar Ali M. Chohan, Advocate for
petitioners
in C. P. Nos. D‑1037 and 1038 of
2018.
Raja ShahidHussainSolangi, Advocate for
petitioners
in C. P. Nos. D‑1063, 1064, 1065,
1070 and 1079 of 2018.
Mr. Riaz Ali Shaikh, Advocate for petitioner in
C. P. No. D‑1078 of 2018.
None present for petitioners in C. P. Nos. 1083
and 1084 of 2018.
Mr. Ali MutahirShar, State Counsela/wAbdul
Sattar, Assistant Commissioner Bhiria present on behalf of Deputy CommissionerNaushahroFeroze
and Abdul ShakoorSolangi, Mukhtiarkar (Revenue) Khairpur Mir’s present on
behalf of Deputy Commissioner Khairpur.
Date of hearing:28.05.2018.
J U D G M E N T
NADEEM AKHTAR J.–Through these petitionsfiled under Article 199 of the Constitution
of Islamic Republic of Pakistan, 1973, the petitioners have prayed that the
respondents be directed to allow them to continue the business of their hotelsand
restaurants during fasting hours in the holy month of Ramazanas the places /
sites of their said business are exempted under Section 5 of the Ehtram-e-Ramazan
Ordinance, 1981, (‘the Ordinance’). Since all these petitions involve
common questions of law and fact, they were heard together with the consent of
learned counsel for all the petitioners and learned State Counsel and are being
disposed of by means of this common judgment.
2. The
petitioners have averred that their hotels and restaurants are situated at such
places which are exempted under Section 5 of the Ordinance. Vide order dated
22.05.2018, Deputy Commissioners concerned were directed to confirm and verify
the petitioners’ above claim by submitting a report to this Court with regard
to the precise location of their hotelsand restaurants. In compliance of the aforesaid
order, Deputy Commissioner NaushahroFerozehas submitted the following report
today wherein it is clearly stated that hotels and restaurants of all the petitioners
are not situated within the premises of any of the places enumerated in Section
5ibid :
|
C. P. No. |
Location / details of hotels |
Remarks |
|
D-1007/2018 Muhammad Mehboob V/S P.O. Sindh
& others. |
“Al-Imran Gulab Hotel” National Highway N-5
from Karachi to Sukkur. |
This restaurant is not coming under the
exemption mentioned in the Ehtram-e-Ramazan Ordinance because it is not
situated within the premises of any bus stand, hospital or railway station. |
|
D-1084/2018 Mir Hazar Khan & others V/S P.O Sindh
& others. |
National Highway KotriKabir |
No notified bus terminal hence not exempted under Ehtram-e-Ramazan Ordinance. |
|
D-1008/2018 Gulab Khan Sumbal V/S P.O. Sindh & others. |
“Al-Raza Hotel” near Moro
CNG NHA, Bypass Moro. |
This location cannot be considered for
exemption under Ehtram-e-Ramazan Ordinance becauseit is not situated within
the premises of a bus stand, railway station or hospital. |
|
D-1009/2018 Abdul Sattar Rajput V/S P.O. Sindh &
others. |
“AsulSubhanallahMakka Hotel” nearDheeran
Stop NHA Moro. |
This location cannot be considered for
exemption under Ehtram-e-Ramazan Ordinance because it is not situated
in the premises of a bus stand, railway station or hospital. |
|
D-1010/2018 Mashooq Ali Chahwan V/S P.O.
Sindh & others. |
“Komal Hotel Lucky Afridi” near
National Highway Moro. |
This location cannot be considered for
exemption under Ehtram-e-Ramazan Ordinance, because it is not situated
in the premises of a bus stand, railway station or hospital. |
|
D-1011/2018 Imran V/S P.O. Sindh & others. |
“Al-Imran Hotel” located at Ali Petrol Pump (NHA) Moro. |
This location cannot be considered for
exemption under Ehtram-e-Ramazan Ordinance because it is not situated
in the premises of a bus stand, railway station or hospital. |
|
D-1022/2018 SikandarSabki V/S P.O. Sindh
& others. |
“SukoonSabki Hotel” located at Bypass Moro. |
This location cannot be considered for
exemption under Ehtram-e-Ramazan Ordinance because it is not situated
in the premises of a bus stand, railway station or hospital. |
|
D-1058/2018 GhulamSarwarSabki V/S P.O. Sindh
& others. |
“Jidah Hotel” nearDaris
Bypass, NHA, Moro. |
This location cannot be considered for
exemption under Ehtram-e-Ramazan Ordinance because it is not situated
in the premises of a bus stand, railway station or hospital. |
|
D-1032/2018 Sajjad Ali Solangi V/S P.O. Sindh
& others. |
“Qalandari Hotel”Mithiani Road
NaushahroFeroze City near Revenue Colony. |
This location cannot be
considered for exemption under Ehtram-e-Ramazan Ordinance because it is
not situated in the premises of a bus stand, railway station or hospital. |
|
D-1018/2018 Sajan Khan Umrani V/S P.O. Sindh & others. |
“New Al-Madina Hotel” Al-Kousar Bus Stop,
Allah WalaChowkNaushahroFeroze. |
This location is close to Allah
WalaChowk / Main Bus Stop NaushahroFeroze hence can be considered for
exemption under Ehtram-e-Ramazan Ordinance. |
|
D-1038/2018 Banho Khan V/S P.O. Sindh & others. |
“Mumtaz Hotel” Jalal ji Road Main Chowk Karachi Bus Stop
Bypass Padidan. |
There is no designated bus stop at this
location hence cannot be considered for
exemption. |
|
D-1037/2018 Ghulam Mustafa V/S P.O. Sindh
& others. |
“Lash Push Hotel” National Highway,
NaushahroFeroze. |
No notified bus terminal hence not exempted under Ehtram-e-Ramazan Ordinance. |
|
D-1063/2018 HuzoorBux V/S P.O. Sindh & others. |
“Bismillah Hotel” National Highway
NaushahroFeroze. |
No notified bus terminal hence not exempted under Ehtram-e-Ramazan Ordinance. |
|
D-1064/2018 Abdul Sattar V/S P.O. Sindh & others. |
“Al-Kousar Hotel”NaushahroFeroze. |
This location is close to Allah
WalaChowk / Main Bus Stop NaushahroFeroze hence can be considered for
exemption under Ehtram-e-Ramazan Ordinance. |
|
D-1065/2018 Kareem Bux V/S P.O. Sindh &
others. |
“Al-Kareem Hotel” National Highway NaushahroFeroze. |
No notified bus terminalhence not exempted under Ehtram-e-Ramazan Ordinance. |
|
D-1070/2018 Khan Muhammad V/S P.O. Sindh & others. |
“RimjhimHotel” National Highway NaushahroFeroze. |
No notified bus terminal hence not exempted under Ehtram-e-Ramazan Ordinance. |
|
D-1079/2018 Kaleemullah V/S P.O. Sindh &
others. |
“BalochHotel” National Highway NaushahroFeroze. |
No notified bus terminal hence not exempted under Ehtram-e-Ramazan Ordinance. |
|
D-1083/2018 Ansar-ul-Hassan Memon V/S P.O. Sindh &
others. |
“Makkah Restaurant” National Highway
NaushahroFeroze. |
No notified bus terminal hence not exempted under Ehtram-e-Ramazan Ordinance. |
|
D-1012/2018 ArifNazar V/S P.O. Sindh & others. |
“Bismillah Hotel” main bazaar of Bhiria Road Town. |
Does not fall in the exemptions as provided under Ehtram-e-RamazanOrdiance/Rules. |
|
D-1013/2018 Yameen Khan V/S P.O. Sindh &
others. |
“Mevo Khan Hotel” oppositeAzeemDhahya Petrol Pump on Tharushah
Road at Bhiria Road. |
Does not fall in the exemptions as provided under Ehtram-e-RamazanOrdiance/Rules. |
|
D-1034/2018 LalBakhshGopang V/S P.O. Sindh & others. |
“LalBuxGopang Hotel”of the petitioner is situated
far away from Taluka Hospital Kandiaro and the Mini Bus Stand, as
such the request of the petitioner is not worthy to be considered. |
|
|
D-1078/2018 Abdul Sattar Ansari V/S P.O. Sindh &
others. |
The hotel of this petitioner is situated far
away from the hospital Darbello as well as Mini Bus Stand as such the
request of the petitioner is not worthy to be considered. |
|
3. C.
P. No. D-1035/2018 has been filed by petitioner Photo Khan in respect of ‘Photo
Khan Chang Hotel’ which was originally mentioned in the above report with the
remarks that it is situated at the main bus stand of Halani Town. However, the
Deputy Commissioner NaushahroFeroze submitted another report wherein it is stated
that there is no notified bus terminal in Halaniand the above hotel is located
on National Highway near Bus Stop Halani.
4. In
his report in respect of hotels in C. P. Nos. D-1018/2018 and D‑1064/2018,
Deputy Commissioner NaushahroFeroze has stated that the said hotels are located
“close to” Allah WalaChowk / Main Bus Stop NaushahroFeroze, hence
can be considered for exemption under the Ordinance. The Assistant Commissioner
present in Court on behalf of Deputy CommissionerNaushahroFeroze as well as
learned counsel for the petitioners in both the aforesaid petitions concede
that the above hotels are not situated within the premises of the above bus
stop or any other bus stop. The Assistant Commissioner further concedes that
none of the above hotels can be exempted under Section 5 ibid due to this reason.
Similarly, the Mukhtiarkar present in Court on behalf of Deputy Commissioner
Khairpur has stated that the hotels of petitioners 3 and 5 in C. P. No.
D-1084/2018 situated at National Highway near RasoolabadTalukaSobhodero
District Khairpur cannot be exempted under Section 5 as their hotels are not
situated within the premises of any bus stand.
5. It
is clear from the above report and statements that the hotels and restaurants
of the petitioners are not situated within the premises of any bus stand,
hospital, railway station or any other place exempted under Section 5 of the
Ordinance. It is important to note that learned counsel for the petitioners have
not disputed the above report and after going through the same, theyhave contended
that since hotels and restaurants of the petitioners are situated on main highways
or roads, they cater the needs of passengers commuting through buses and
coaches on the said highways and roads by providing food and refreshments to
them. According to them, this reason alone is sufficient to grant them exemption
under Section 5 of the Ordinance. Learned State Counsel and Assistant
Commissioner concerned have strongly opposed these petitions by arguing that
they do not fall within the exemptions specifically provided in Section 5 ibid.
6. In
order to appreciate the respective contentions of the parties, we have
carefully examined the relevant provisions of the Ordinance and the
Ehtram-e-Ramazan Rules, 1981, (‘the Rules’) made thereunder. Section 3(1)
of the Ordinance prohibits any person, who according to tenets of Islam is
under an obligation to fast, from eating, drinking or smoking in a public place
during fasting hours in the holy month of Ramazan ; and, Section 3(2) provides
punishment of simple imprisonment for a term which may extend to three months
or with fine which may extend to Rs.500.00 or with both to all such persons who
contravene the prohibition provided in Section 3(1). Section 4(1) of the
Ordinance prohibits the proprietor, manager, servant or person in-charge of
hotels, restaurants, canteens or other public places, from knowingly or
willfully offering or serving or causing to offer or serve any eatables during
fasting hours in the holy month of Ramazan to any person who, according to the
tenets of Islam, is under an obligation to fast ; and, Section 4(2) provides
punishment of simple imprisonment for a term which may extend to three months
or with fine which may extend to Rs.500.00 or with both to all such persons who
contravene the prohibition provided in Section 4(1).
7. Section
5 of the Ordinance, which exempts the places mentioned therein from the
prohibition contained in Sections 3 and 4 ibid, reads as under :
“ 5. Exemptions. –
Nothing contained in section 4 shall apply in respect of
(a)
a canteen or kitchen
maintained in a hospital for serving food to patients ;
(b)
a restaurant,
canteen, stall or wheel or the holder of a vending contract within the
premises of a railway station or in a train or a restaurant or canteen within
the premises of an airport, seaport or bus stand or in an aircraft ;
(c)
a kitchen or
dining-car of a train ; or
(d)
a kitchen or canteen
meant for children within the premises of a primary school.”
8. The
words “within the premises” used in clauses (b) and (d) of
Section 5 ibid are significant as the limited exemption provided therein is
further restricted because of these words. It, therefore, follows that in order
to seek exemption under this Section, the restaurant, canteen, stall, wheel or
the holder of a vending contract mentioned in clause (b)must be situated “within
the premises” of a railway station, airport, seaport or bus stand,
or in a train or an aircraft ;and the kitchen or canteen mentioned in clause
(d) must fall“within the premises” of a primary school. This
clearly means that any of the above places not falling “within the
premises”of the places enumerated in clauses (b) and (d), shall not
be entitled to seek exemption under Section 5. Such restriction is not
mentioned in clauses (a) and (c) for the simple reason that canteen or kitchen
mentioned in clause (a) must be maintained “in a hospital”,
and kitchen or dining car mentioned in clause (c) refers to that of a train.This
clarification and elaboration is necessary as the hotels and restaurants of all
the petitioners are admittedly not situated “within the premises”
of any of the places described in clauses (b) and (d), or in a hospital or
train, and they fall either “near” or “close to”some
of such places.
9. Rule
3 of the Rules provides that a canteen, restaurant or dining car mentioned in
clauses (a), (b), (c) and (d) of Section 5 ibid should be protected from public
view by means of a curtain or screen. Rule 4 provides that only the persons
mentioned therein shall be admitted to a canteen, restaurant or dining car
mentioned in clauses (a), (b), (c) and (d) of Section 5, namely, (a) in the
case of a canteen maintained in a hospital, persons who are for the time being
in-patients of that hospital ; (b) in the case of a restaurant or canteen within
the premises of a railway station, airport, seaport or bus stand or in
a train or aircraft, or dining car of a train, persons who have in their
possession a ticket or voucher which entitles them to travel by means of
conveyance concerned beyond a distance of 75 kilometers, including the distance
already covered ; and (c) in the case of a canteen within the premises
of a primary school, students of that school who have not attained the age of
puberty.
10. A
bare perusal of Sections 3, 4 and 5 of the Ordinance clearly shows that the
intention of the legislature and the sole object and purpose of promulgating
the Ordinance, as mentioned in its preamble, was/is to observe the sanctity of
the holy month of Ramazan and to show respect to the Muslims fasting during the
holy month in order to follow the mandatory command of Almighty Allah with
regard to fasting in the holy month. It is to be noted that the prohibitions
contained in the Ordinance apply only during the fasting hours of the holy
month of Ramazan and not before or after the said fasting hours nor on any other
day before or after this holy month or when Muslims fast in other Islamic
months. It is, therefore, clear that fasting hours during the entire holy month
of Ramazanmust be treated and observed in a special and respectful manner by
all persons irrespective of religion, faith, caste, creed or colour. This
important and fundamental aspect is clearly embodied in Rules 3 and 4 ibid
which provide that canteens, restaurants and dining cars must be protected from
public view by means of a curtain or screen even if they are situated in the
exempted places listed in Section 5 of the Ordinance ; and only in-patients of
hospitals, travellers having valid travel tickets or permits, and minor
students of primary schools not having attained the age of puberty, should be
admitted to canteens, restaurants and dining cars. Thus, canteens, restaurants
and dining cars even in exempted places cannot sell or serve eatables and
drinks freely and openly during the fasting hours in theholy month of Ramazan.
11. The
combined effect of the above Sections and Rules is that despite the
prohibitions, certain places have been exempted from such prohibitions in order
to facilitate only such persons who are unable to fast due to some temporary or
permanent disability, such as illness, or due to some personal reasons or hardship,
such as travelling, or who are not under an obligation to fast, such as
children of tender age going to primary schools or montessories who have not
attained the age of puberty. It is for this reason that only canteens or
kitchens in hospitals serving food to patients ; restaurants, canteens, stalls,
dining cars, etc. within the premises of railway stations,
airports, seaports, or bus stands, or inside trains or aircrafts, serving food
etc. to travellers having valid travel tickets or permits ; and, kitchens or
canteens meant for children in primary schools, are allowed to operate during
the fasting hours of holy month of Ramazan.
12. The
prohibitions contained in Sections 3 and 4 and the punishments provided therein
for their contravention clearly show that the persons who do not fall within
the exemptions provided in Section 5 or who knowingly and willfully show
disrespect for the persons fasting and/or for the holy month of Ramazan, are to
be dealt with strictly and punished under Sections 3 and 4, as the case may be.
Another important aspect is that no person should be allowed to take advantage
of the exemptions provided in Section 5 or to exploit the same if he is not
entitled to the same.Since the hotels and restaurants of the petitioners are admittedly
not situated within the premises of any of the places enumerated
in Section 5 of the Ordinance, they are not certainly entitled to seek
exemption under the said Section, and as such all these petitions are liable to
be dismissed.
13. Before
parting with these cases, it may be observed that this trend and practice of
filing these type of misconceived, malafide and ill-advised petitions before
all Benches and Circuits of this Court has become very common. The only purpose
of filing such malafide and misleading petitions is to obtain an order from
this Court and to carry on the business of hotels, restaurants, canteens, etc. freely
and openly under the garb of such order even during the fasting hours of holy
month of Ramazan. This state of affairs and such conduct is indeed sad and
unfortunate, especially when the present petitioners and most of the persons
filing such cases call themselves Muslims. Under Section 7 of the Ordinance,
the Magistrate concerned, Chairman of the District Council or Municipal
Committee or Town Committee, Mayor of the Municipal Corporation, Chairman or
Member of District Zakat and Ushr Committee, have concurrent jurisdiction to
enter any public place and arrest such person who has committed any offence
punishable under the Ordinance ; and, the Magistrate arresting any such person
is empowered to try the said offence in a summary manner as provided in
Sub-Section (2) of Section 7 ibid.
14. Accordingly,
we direct the learned District and Sessions Judges of all districts in the
Province of Sindh to ensure that the mandate of the Ehtram-e-Ramazan Ordinance,
1981, is strictly observed and followed in letter and spirit, and prompt action
is taken by the Magistrates of their respective districts strictly in
accordance with law against all such persons who violate any of the provisions
of the Ordinance. Chairmen of all District Council / Municipal Committee / Town
Committee, Mayors of all Municipal Corporations and Chairmen and Members of
District Zakat and Ushr Committees, are directed to realize their
responsibility under the Ordinance and to perform their duties strictly in
accordance therewith.
15. Office
is directed to communicate this judgment immediately to learned District and
Sessions Judges of all districts in the Province of Sindh as well as to
Secretary Local Government (Government of Sindh), Chairmen
of all District Council / Municipal Committee / Town Committee, Mayors of all
Municipal Corporations and Chairmen and Members of District Zakat and Ushr
Committees, for information, necessary action and compliance. Office is further
directed not to entertain any such petition in future wherein exemption is
sought in respect of a place which is not covered / exempted under Section 5 of
the Ordinance. Let this judgment be communicated to the learned Registrar of
this Court and learned Additional / Deputy Registrars of Circuit Courts
Hyderabad and Larkanafor information and compliance.
16. Foregoing
are the reasons of the short order announced by us on 28.05.2018, whereby all
these petitions were dismissed, however, with no order as to costs.
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