The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Abdul Qadeer Chaudhry, Actg. C.J.

(a) Constitution of Pakistan (1973), Articles 199 & 21:

Article 199 — Constitutional petition — Petitioners had filed a civil suit for permanent Injunction against respondents alleging the same facts and claiming same reliefs as made in the constitutional petitions but had not referred to the institution of such suit in the constitutional petition — Petitioners, held had not come to the Court with clean hands.
Article 199 — Constitutional jurisdiction — Court cannot allow petitioner to have ill-gotten gains in equitable jurisdiction particularly when public morals and interest of public exchequer were involved.

The petitioners have not come to the Court with clean hands. The petitioners had filed a civil suit for permanent injunction against respondents Nos. 1 to 4 in the Civil Court, alleging the same facts and claiming the same reliefs as they have made in these petitions. The petitioners have also not referred to the institution of the suit in the petitions. The respondent cinema-owner have brought on record the F.I.R. (Annexure R/2) and a copy of the plaint (Annexure R/3) filed by the petitioners in the Court of Additional District Judge, Quetta. Alongwith the suit an application for interim relief was also made. This application Page No: 2 ZAIN SHEIKH & ASSOCIATES Main Points Display

was rejected on 20.1.1987 by the learned Additional District Judge-I, Quetta. Thereafter, the petitioners moved an application for withdrawal of the suit and on 2.2.1987 the following order was passed by the Additional District Judge-I, Quetta.

“Order in Urdu”

The petitioners thereafter filed the Constitutional Petition on 21.3.1987. The petitioners have not mentioned these facts in their petitions and have suppressed material facts. As observed earlier the disputed questions of facts now susceptible to be resolved, whether it was censored film or not, and whether exhibition was in earlier payment from the public or to benefit customers are mooted questions of fact. Additionally, whether the Court is going to allow the petitioners to have ill-gotten gains in equitable jurisdiction particularly when public morals and interest of public exchequer are involved. It has been alleged in the counter affidavit of cinema-owners that market is flooded with foreign film. GOVERNMENT OF PAKISTAN THROUGH SECRETARY, MINISTRY OF COMMERCE AND ANOTHER V. ZAMIR AHMED KHAN PLD 1975 SC 657. Ref.

Article 199 — Disputed question of fact raised in constitutional petition — High Court declined to give relief.

Another aspect of the case is that petitioners have raised disputed question of facts. In paras 3 and 4 of the petition, they have alleged that they are exhibiting films and Pakistani Dramas free of cost. The contention has been repudiated by the contesting respondents. Respondents Nos. 1 to 4 in their counter-affidavits have stated that petitioners are running illegal business, contrary to the Cinematography Act and are charging Rs. 5 from the customers for the same. They were not only exhibiting Pakistan films and dramas, but were also showing foraying films which have been smuggled into the country.

Article 18 — Fundamental Rights — Freedom of trade, licence or profession — “Lawful profession or occupation” — Scope — Word “lawful” meaning and import discussed — [Words and phrases]. Article 18 of the Constitution of Pakistan, 1972 (Article 21 of 1973 Constitution) which relates to the freedom of trade, business or profession, which corresponds to Article 15 of 1972 Constitution (Article 18 of 1973 Constitution), and which incidentally held the filed at the relevant time, assures, the citizens the right to enter upon any “lawful profession or occupation” and to conduct any ‘lawful trade or business’. It is important to point out that the word “lawful” qualifies the right of the citizen in the relevant field., This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. Therefore, on the wording of Article 18 of 1972 Constitution (Article 21 of 1973 Constitution), the right to enter upon profession or occupation or to conduct trade or business can hardly be described to be a
constitutional or fundamental right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word “lawful” in the relevant provision.