Jehanzeb and 10 others v. Government of Khyber Pakhtunkhwa through Chief Secretary and 7 others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.2489-P/2024

Jehanzeb & 10 others Vs Govt of Khyber Pakhtunkhwa through Chief Secretary & 7 others

For Petitioners: Mr. Fida Gul, ASC

For Respondents: Muhammad Shahzad Nawaz, AAG.

Date of Hearing 04.02.2026

JUDGMENT

MUHAMMAD NAEEM ANWAR, J:- This consolidated judgment shall dispose of the instant writ petition as well as the connected Contempt of Court Petition No. 422-P of 2024, instituted by the petitioners alleging willful and deliberate non- compliance of the order dated 23.05.2024 passed by this Court in the present writ petition. Since both matters emanate from a common set of facts and involve identical questions of law and controversy, they are being heard and decided together through this single judgment in the interest of judicial economy and consistency.

2.The petitioners, being the owners of shops, are eleven fish traders operating at Fish Market, Ghanta Ghar, Peshawar, have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as “the Constitution”), seeking, inter alia, the following reliefs:

It is, therefore, humbly prayed that on the acceptance of this Writ Petition, both the impugned executive order and notification dated 26-04-2024 and 30-04-2024 by Respondents No 2 & 3 respectively may very kindly be cancelled by declaring illegal, unlawful, against the law & contrary to fundamental rights guaranteed by the Constitution of the Land but to allow the Petitioners to run their respective business in the said premises i.e. Fish Market Ghantagar, Peshawar City, smoothly, like this Hon’ble Court allowed in its judgment dated 10-10- 2019 in Writ Petition No 58-P/2015. Any other relief which is not specifically asked for, may also be granted in favour of the Petitioners and against the Respondents.

3.The petitioners have called into question the legality, propriety, and validity of the executive order dated 26.04.2024 issued by Respondent No. 2/Deputy Commissioner, as well as the notification dated 30.04.2024 issued by Respondent No. 3/Director (East), Capital Metropolitan Government, whereby the sale and purchase of fish, loading and unloading activities, and vehicular movement within the existing fish market were abruptly stopped, and the market was sought to be relocated to Chughalpura, G.T. Road, near the southern side of the BRT Station.The petitioners have pleaded that they, along with their predecessors-in-interest, have been carrying on wholesale fish business at Ghanta Ghar for several decades; that they are owners and lawful occupants of shops situated therein; and that they have been regularly paying excise and taxation duties for the last 30 to 40 years. It is further averred that the petitioners had earlier approached this Court through Writ Petition No. 58-P/2015, which was decided on 10.10.2019 in their favour, pursuant to which they continued to conduct their business under the protection and authority of the said judgment.The petitioners have further asserted that, in consequence of the impugned order, their shops were locked, resulting in the spoilage and loss of fish stock valued at approximately Rs. 1,500,000/-. They contend that the proposed relocation site at Chughalpura is neither commercially viable nor secure for the conduct of wholesale fish trade; that it is situated at a considerable distance from the Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

existing, well-established market; that the land in question is allegedly not owned by the Government; that the location is beyond convenient public access; and that it is unsuitable for early-morning wholesale transactions and unsafe for handling substantial cash dealings. According to the petitioners, the proposed relocation is likely to dismantle a long-established commercial hub and adversely affect the livelihood of numerous person dependent thereon.They have further pleaded that objectives such as beautification of the city and development of a heritage trail, though laudable in themselves, cannot lawfully be pursued at the expense of extinguishing their lawful means of livelihood and dismantling an established market without first providing a reasonable, lawful, and viable alternative arrangement in accordance with law.

4.Respondent No. 2 and Respondent No. 3, through their respective para-wise comments, have raised preliminary objections to the maintainability of the petition on the grounds of lack of locus standi, absence of cause of action, and availability of an adequate alternate remedy, and have further alleged that the petitioners have concealed material facts and misled this Honourable Court. On merits, both sets of comments substantially admit that the petitioners are wholesale fish dealers operating at the Fish Market, Ghanta Ghar, but assert that the petitioners have suppressed the actual condition and circumstances prevailing in the locality. According to the respondents, Ghanta Ghar is a prominent commercial and historical landmark of Peshawar, and the continued conduct of fish trade at the said location has caused persistent public nuisance in the form of disposal of fish waste, garbage, and remnants on public sidewalks, emission of foul odour, blockage of drainage lines, creation of sanitary hazards, and encroachment upon public footpaths, thereby obstructing pedestrian movement and causing inconvenience to the general public. The respondents Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

have stated that they do not object to the business of sale of fish per se; rather, their objection is confined to the continuance of such activity in a congested residential and heritage-sensitive area adjoining Ghanta Ghar. It is their case that, in response to repeated public complaints and following several meetings between the traders and the district administration, a joint committee comprising the Assistant Commissioner (City), the Director (East), Capital Metropolitan Government, and representatives of the market visited the proposed site. Thereafter, by mutual consultation and consensus, the selected location was notified on 30.04.2024 as the designated wholesale fish market. It is further pleaded that the order dated 26.04.2024 and the subsequent notification were issued lawfully and in the larger public interest for the relocation of the fish market to Kabootar Chowk, after due deliberation with stakeholders and upon the recommendations of the committee so constituted, and that an alternate site has been provided which, according to the respondents, is more feasible, suitable, and accessible for the conduct of wholesale fish trade.

5.The connected Contempt of Court petition arises out of an order issued in the instant Writ Petition No. 2489-P of 2024, wherein this Court, vide order dated 23.05.2024, directed de- sealing of the petitioners’ business premises. The petitioners contend that, despite having full knowledge of the said order, the respondents have willfully and deliberately continued to disobey the same. It is averred that instead of compliance, the respondents have subjected the petitioners to harassment, coercion, and illegal actions, including sealing of shops, registration of false criminal cases, unlawful detention, repeated raids, and forcible attempts to displace the petitioners from their established place of business. The petition further asserts that the respondents have openly disregarded the authority of this Court and acted in a manner that undermines the administration of justice and violates the Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

fundamental rights of the petitioners. It is thus maintained that such conduct constitutes clear and willful contempt of court, warranting initiation of proceedings against the respondents, enforcement of the earlier order in its true letter and spirit, and imposition of appropriate punishment in accordance with law.

6.The respondents in their written comments assert that the petitioners failed to disclose that, in compliance with the Court’s earlier order dated 23-05-2024, a meeting was duly convened with the union and shopkeepers of the fish market under the chairmanship of the Assistant Commissioner, Peshawar City, regarding relocation of the fish market from Ghanta Ghar to KabootarChowk, where it was emphasized that an alternative and accessible site had already been provided, though some traders continued to operate at the old location, allegedly causing damage to the Heritage Trail, public nuisance, encroachment upon footpaths, drainage problems, foul smell and unhygienic conditions; the para-wise reply consistently denies the material allegations of contempt and maintains that the relocation decision was a governmental and administrative measure taken in public interest, for preservation of a historical and cultural site, and for improved civic order and sanitation, while specifically pleading that the allegation of threats, harassment, false implication, deprivation of livelihood, or malicious action against the petitioners is baseless, misleading and unsupported by record; the annexed minutes of meeting and photographs of the inauguration ceremony are relied upon to show that a new site was allocated, many shopkeepers shifted there, and the administration substantially complied with the judicial directions in letter and spirit; consequently, the prayer made in the reply is that the Court accept the respondents’ explanation, hold that no contempt is made out, and dismiss the petition in hand.

7.Arguments heard; record perused.

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

8.In the instant writ petition, the petitioners principally rely upon the earlier judgment dated 10.10.2019 passed in W.P. No. 58-P/2015, alleging that the respondents have acted in breach thereof. In view of the above, the following questions arise for determination before this Court:

1.What is the effect of the earlier judgment dated 10-10- 2019 in W.P. No. 58-P/2015 on the present controversy, and whether the impugned orders are in violation of or distinguishable from the directions issued therein?

2.Whether the right to freedom of trade, business or profession guaranteed under Article 18 of the Constitution of the Islamic Republic of Pakistan is absolute and unqualified, or subject to reasonable restrictions imposed by law in the public interest?

3.Whether the connected contempt of court petition is maintainable on the premise that the respondents have allegedly violated the order dated 23.05.2024 passed by this Court.?

9.As to question No1, it would be apposite to examine the earlier writ petition filed by petitioner No. 1 and the judgment rendered therein. Perusal of the record reveals that petitioner No. 1 had earlier instituted W.P. No. 58-P/2015, wherein he asserted that he being the owner in possession of three shops at GhantaGhar, had been lawfully carrying on the fish trade there for decades along with his employees, had paid excise and taxation dues, held registration and NTN, and that no alternate market was available in District Peshawar. He challenged the notices dated 05.01.20151 as illegal, without jurisdiction, mala fide, and violative آپ کو بذريعہ نوٹس مطلع کيا جاتا ہے کہ آپ کے کاروبار )مچهلی فروشی( کی وجہ سے شہريان پشاور1 کو تکليف کا سامنا ہے۔ چونکہ يہ کاروبار انتہائی گنجان آباد اور شہر کے بيچ ميں ہونے کی وجہ سے بو اور تعفن کی وجہ ُ اور مچهلی کی بد،پيدل چلنے والوں اور ٹريفک کی روانی پر اثر انداز ہو رہا ہے سے بيمارياں پهيلنے کا خدشہ ہے۔لہذا آپ کو بذريعہ نوٹس ہذا ہدايت کی جاتی ہے کہ آپ سات يوم کے اندر اندر اپنے کاروبار ی سرگرمياں گهنٹہ گهر اور چوک يادگار کے علاقے ميں بند کرکے شہر سے باہر کسی موضوع مقام ميں منتقل کرديں۔ خلاف ورزی کرنے کی صورت ميں آپ کے خلاف قانونی کارروائی عمل ميں لائی جائے گی۔ دستخط چيف ميونسپل آفيسر

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

of his constitutional and statutory right to carry on business, and sought their annulment. The notices state that the fish business is causing inconvenience to residents and obstruction to traffic, being situated in a congested central area and giving rise to foul smell and public nuisance. The petitioners were, therefore, directed to cease business activities at Ghanta Ghar and ChowkYadgar within seven days and to relocate to a suitable place outside the city, failing which legal action would follow.After submission of comments of respondents, this Court allowed the writ petition vide judgment dated 10.10.2019, in the following terms: “Thus, while considering the submissions of learned counsel for the parties, issuance of notice seems without any justification and plausible explanation, therefore, this writ petition is allowed, notice is declared as without lawful authority, however, the respondents are directed to conduct the fresh inquiry by involving the residents of locality within a period of one month, but in accordance with law, by giving proper opportunity of being heard to the petitioners.”The operative part of the earlier judgment makes it manifest that, though the writ petition was allowed, the relief was not absolute but conditional. While the impugned notice was declared to be without lawful authority, the respondents were simultaneously directed to undertake a fresh inquiry in accordance with law, after involving the residents of the locality and after providing due opportunity of hearing to the petitioners. The necessary implication is that this Court did not acknowledge an unrestricted or permanent right of the petitioners to carry on fish business at the particular site in question. Rather, the right claimed by them was treated as subject to lawful regulation and conditional upon the outcome of a fair, transparent, and legally valid inquiry. Thus, the earlier judgment set aside arbitrary executive action, but it did not foreclose the authority of the respondents to revisit the matter and to take an appropriate decision in accordance with law.Therefore, no Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

violation of the judgment rendered in the earlier writ petition is evident. Secondly, in the earlier writ petition, petitioner No. 1 had challenged the notices dated 05.01.2025, reproduced in footnote No. 1 above, whereas in the present petition the petitioners have challenged two notifications of a different nature. The first is the notification dated 26.04.2024,2 namely the order issued by the Deputy Commissioner, Peshawar under section 144 Cr.P.C, whereby the selling of fish, as well as the loading and unloading of fish, within the heritage area was prohibited. The second is the notification dated 30.04.2024,3 issued by the Director (East), Capital Metropolitan Government, Peshawar, whereby ChughalPura G.T. Road, adjacent to the south side of the BRT Station, was declared a wholesale and retail fish market.Therefore, the factual background of the earlier writ petition is distinct from the factual foundation of the instant Ordered under Section 114 Cr PC 144 Whereas it has been made to appear to me that vide Director Eastern Zone, Capital Metropolitan letter No: DG(CMPG)E, Zone/01-19/2024/ ADAQ/1234-45 dated 23- 04-2024 the process of maintenance and repair has been started for rehabilitation of the heritage at Goregatri Peshawar for journey through a series of historical sites and places with aim of discovering an area’s history, culture and architecture, but the fish market situated inside the City near to heritage trail has adversely affected its superficial views and even created embarrassing situation for the visitors and dwellers of the area, including bad smell.

AND WHEREAS it is imperative to impose ban on all kinds of selling and purchase, even loading/unloading of fishes in the area near to GoregatriGhantaGhar and all kinds of vehicular traffic carrying fish inside the City. AND WHEREAS it is high time to chalk out of proper maintenance plan for the said heritage trial to make it attractive spot for tourists visiting Peshawar. AND WHEREAS, I have reasons to believe that there are sufficient grounds to proceeds under Section 144 Cr PC.

NOW, THEREFORE, I AFAQ WAZIR, Deputy Commissioner in exercise of powers conferred on me under Section 144 Cr PC, do hereby order and impose ban on selling/purchasing of fish, load/unload and vehicular traffic carrying fish inside the City and in the premises of heritage trail.

Anyone found violating this order shall be proceeded against under Section 188

PPC.

This order shall come into force forthwith and shall remain enforced for the 30 days. Unless modified or withdrawn.

Given under my hand and seal of the office this day26th April, 2024.

A feasible site located at Chughal Pura G.T Road, adjacent to the south side of BRT Station, jointly visited by the Assistant Commissioner (City) Peshawar and Director, Capital Metropolitan Government (Eastern Zone) Peshawar, in presence of Mr. Asif Khan President Shopkeeper Association GhantaGhar Bazar, Mr. Javed Akhtar President Shopkeeper Association Karim Pura Bazar and Muhammad Baz Khan Senior Vice President Shopkeeper Association Fish Market GhantaGhar, Peshawar on 22nd of April 2024, and subsequent meeting with the Deputy Commissioner, Peshawar, is hereby declared wholesaler and retailer fish market District Peshawar, with immediate effect, in the larger public interest.

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

petition.Thus, in light of the above, the earlier judgment dated 10.10.2019 passed in W.P. No. 58-P/2015 has no direct effect on the present controversy, as the dispute in the instant petition has arisen from a materially different factual and legal background. The impugned notifications do not offend or violate the directions issued in the earlier judgment; rather, they are clearly distinguishable both in their subject matter and in the circumstances that led to their issuance. Accordingly, the earlier judgment cannot be treated as governing the present case in a manner that would invalidate the impugned orders.The answer to Question No. 1 is furnished in the above terms.

10.As to question No 2, The petitioners contend that the impugned notifications curtail their right to trade, business, and profession and, therefore, on the touchstone of Article 18 of the Constitution, are liable to be set aside. Conversely, the respondents contend that the petitioners have not been stopped from carrying on their business; rather, the same has merely been regulated in the public interest. They submit that a heritage trail has been developed in the area after expenditure of substantial taxpayer money for preserving the historical character of the locality, projecting a soft image of the State, and generating revenue. They further maintain that an alternative suitable place has been identified for the petitioners’ business so that public interest may outweigh individual interest. Admittedly, fundamental rights are enshrined in the Constitution of the Islamic Republic of Pakistan under Articles 8 to 28 thereof. Among these rights, the right to freedom of trade, business, and profession is guaranteed under Article 18 of the Constitution, which provides as follows:

“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__ Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

(a)the regulation of any trade or profession by a 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 or service, to the exclusion, complete or partial, of other persons.”

A bare reading of the above Article makes it manifest that every citizen is guaranteed the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. The emphasis, however, is upon the word ‘lawful’, which is of decisive significance and cannot be treated as surplusage/superfluous. The said expression clearly postulates that the profession, occupation, trade, or business sought to be pursued must be in accordance with law, permitted by law, and not contrary to or in violation of any legal provision. It necessarily follows that the protection afforded by Article 18 does not extend to every kind of economic activity in the abstract, but only to such activity as is lawful in character and is carried on within the parameters of the legal framework. Stated differently, no person can claim, as a matter of fundamental right, protection for a trade, profession, or business which is prohibited by law or is otherwise being carried on in breach of the law. The expression ‘law’ in this context is to be understood in its broad juristic sense, namely, the body of binding norms regulating human conduct and relations in a politically organized society, comprising legislation, judicial precedents, and recognized legal principles.Needless to observe, therefore, that the right guaranteed under Article 18 is not absolute, uncontrolled, or unqualified, for the Article itself expressly subjects the same to such qualifications as may be prescribed by law. The plain mandate of Article 18 is that while a citizen ordinarily enjoys the freedom to pursue lawful economic activity of his choice, the State retains the constitutional authority to regulate the exercise of such right in the larger interest of the community. Clause (a) thereof Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

authorizes regulation of any trade or profession through a licensing system, which in practical terms means that the law may legitimately require prior permission, registration, certification, or fulfillment of prescribed conditions before certain professions or businesses may lawfully be carried on, so as to maintain standards, ensure competence, and protect public safety. Clause (b) further enables the State to regulate trade, commerce, or industry in the interest of free competition, thereby empowering it to curb monopolistic tendencies, prevent unfair or exploitative practices, and preserve a fair and competitive economic order. Clause (c), in addition, recognizes the authority of the Federal Government, a Provincial Government, or a corporation controlled by such Government, to itself carry on any trade, business, industry, or service, even to the complete or partial exclusion of private persons. The import of this clause is that, where the law so permits and public interest so demands, the State may reserve unto itself certain fields of economic activity or may assume exclusive or predominant control over the same. The cumulative effect of all these provisions is that Article 18 secures to the citizen the freedom to engage in lawful trade, business, or profession, but simultaneously preserves the power of the State to regulate, restrict, or, in appropriate cases, itself undertake such activity in accordance with law and in furtherance of public interest. Thus, although the freedom of trade, business, and profession is constitutionally protected, it nonetheless remains subject to reasonable restrictions and regulatory measures imposed in accordance with law.4

11.Indeed, the authority to regulate trade or business necessarily encompasses the power of the State to permit a lawful trade or business at one place and to prohibit or restrict the same Muhammad Ibrar vs Govt of Punjab (2024 CLC 1047), Mirpurkhas Sugar Mills Vs Federation of Pakistan (2022 CLD 352), Pakistan Tobacco Co. ltd vs Govt of NWFP (PLD 2002 SC 460), Muhammad Ajmal vs Province of Baluchistan (2021 PLD 105), M/s Poly Foam Private ltd vs Government of Pakistan (2021 PTD 1998).

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

at another, if such measure is founded upon considerations of public interest. It is by now a settled principle that public interest must prevail over individual interest, and that the rights of the community or society at large take precedence over private rights whenever a conflict arises between the two. This principle, often referred to under the doctrine of saluspopuliest suprema lex (the welfare of the people is the supreme law), is consistently upheld by the superior courts. In the case of Wahan Party vs Chief Minister (1999 P.Cr.L..J 2003), the Lahore High court while quoting the judgment of Madras High court held that where there is a conflict between the public interest and a private right, the former must prevail.In Karachi Building Control Authority and another v. Saleem Akhtar Rajput and 2 others (1993 SCMR 1451), the Honourable Supreme Court has taken the view that in the case of a conflict between a personal fundamental right and the larger public interest, the personal right must yield to the larger interest of society. In Dr. Aziz Ur Rehman v. Federation of Pakistan(2024 PLD 53), the Islamabad High Court, while placing reliance upon Muhammad Khan v. Federation of Pakistan(2012 CLC 101), reiterated that it goes without saying that the concern of an individual cannot be placed above the interest of the general public; rather, the interest of the general public must prevail over individual interest. It is now firmly established that the general interest of the community must prevail over the particular interest of individuals. Therefore, regulation is not to be narrowly construed as being confined only to permission, prohibition, licensing, registration, or certification of a business; it also includes the power to determine the locality in which such business may appropriately be carried on and, where circumstances so warrant, to require its relocation to a more suitable place. A common example is that of residential areas, where commercial activities are often restricted or altogether prohibited, since such activities tend to disturb the peace, convenience, and environmental Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

character of the locality. Thus, although the right to carry on business is constitutionally recognized, its exercise remains subject to lawful regulation, including relocation, so as to ensure that individual economic activity does not impair public rights, public convenience, or the larger interest of society. As discussed hereinabove, the authority to regulate necessarily encompasses the authority to relocate a business on the basis of public interest. In the present case, the material available on record, read in conjunction with the submissions advanced by the parties, makes it abundantly clear that public interest and the larger interest of society demand that the petitioners shift their business to the newly specified place, which, as reflected in the impugned notification dated 30.04.2024, had been agreed upon by the elected representatives of the petitioners. Furthermore, the petitioners have failed to implead Asif Khan, President, Shopkeepers Association, Ghanta Ghar Bazar; Javed Akhtar, President, Shopkeepers Association, Karim Pura Bazar; and Muhammad Baz Khan, Senior Vice President, Shopkeepers Association, Fish Market Ghanta Ghar, despite the fact that they participated in the process of selecting the new site for fish marketing. Both the impugned notifications, whereby the sale of fish and the loading and unloading thereof were prohibited in the heritage trail area, and Chughalpura, G.T. Road, adjacent to the south side of the BRT Station, was designated as the new place for fish marketing, are based on the larger public interest and, therefore, do not offend Article 18 of the Constitution. The answer to Question No. 2 is reiterated that the right to trade, business, or profession is not absolute, but is always subject to law and regulatory control by the State, which includes the authority to allow a business at one place and to restrict, prohibit, or relocate the same at another on the basis of public interest. Reference may be made to the case of Muhammad Anwar vs. Deputy Commissioner, Hafiz Abad and 2 others (2002 YLR 2483).

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

12.The superior courts of Pakistan ordinarily refrain from encroaching upon the policy-making domain of the executive. The scope of judicial review is generally confined to examining the decision-making process, rather than the wisdom, propriety, or soundness of the policy itself, save where the policy is shown to be violative of the Constitution or statutory law, or is otherwise arbitrary, capricious, or irrational. It is by now a well-settled principle, consistently developed by the superior courts, that ordinarily constitutional courts do not interfere in policy matters of the government.5In the case of Dr. Akhtar Hassan Khan vs Federation of Pakistan (2012 SCMR 455), the Supreme court held in this way:

This Court has generally exercised judicial restraint in interfering with the policy making domain of the executive authority while exercising the power of judicial review of administrative actions. In the case of Watan Party supra (Pakistan Steel Mills Case), the well-established principles governing the power of judicial review were reiterated by holding that:-- "in exercise of the power of judicial review, the courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter."

The Court quoted with approval the law laid down in MessrsElahi Cotton Mills Ltd. vs. Federation of Pakistan (PLD 1997 SC 582) and BALCO Employees Union (Regd.) v. Union of India (AIR 2002 SC 350). In the latter judgment, the Indian Supreme Court held as follows:-- "Process of disinvestments is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would Dr. Muhammad Naseem Khan Vs Dr. Shahzad Ali Khan (2023 PLC (CS)N 8 Islamabad, Dr. Akhtar Hassan Khan VS Federation of Pakistan (2012 SCMR 455), AzraJamali VS Federation of Pakistan (2017 PLC(CS) 533).

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

decline to interfere. In matters relating to economic issues, the Government has while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority." In the case of Rahim-ud-Din v. Sabah Uddin, reported as 2016 MLD 20, it was held by the Hon'ble Peshawar High Court, as follows:-- "7. The new policy framed by the Institute as well as by the Environmental Department of the Provincial Government as part of delegated powers cannot be struck down on the ground that petitioners being students of B.Sc. Forestry are also entitled to admissions in the M.Sc. Forestry and that the policy/decision of abolishing the self-finance admission in the Institute is violative of Article 25-A of the Constitution. It is well settled presumption that those who exercise such powers would have done it in a bona fide manner. Framing of admission policy and rules thereunder fell in the executive domain. The Constitution of Pakistan is based on the principle of trichotomy of powers where legislature is vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law. The Courts can neither assume the role of policy maker nor that of a law maker."

The Hon'ble Supreme Court of Pakistan is the case of Ghulam Rasool v. Government of Pakistan, reported as PLD 2015 SC 6, wherein it has been held as follows: - "9. It is by now a well-settled law that the responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the State. It is also a settled law that the Courts should ordinarily refrain from interfering in policy making domain of the Executive. In Executive District Officer (Revenue), District Khushab v. Ijaz Hussain (2012 PLC (CS) 917) this Court has held that framing of recruitment policy and rules thereunder fell in the executive domain; that the Constitution of Pakistan is based on the principle of trichotomy of powers where legislature is vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law and that Courts could neither assume the role of policy maker nor that of a law maker.”

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

The crux of the above discussion is that courts in Pakistan exercise judicial restraint in matters concerning executive policy, particularly those involving administrative or economic considerations, as such matters fall within the exclusive domain of the executive under the principle of separation of powers. Tested on this touchstone as well, the impugned notifications, being rooted in administrative policy and issued in the public interest, do not warrant interference by this Court. Unless a policy is shown to be violative of the Constitution or statutory law, or is tainted by arbitrariness, mala fides, or irrationality, the constitutional courts do not substitute their own opinion for that of the executive.

13.As regards Question No. 3, it is contended by the petitioners that the respondents have violated the order of this Court dated 23.05.2024 and committed contempt of court. Before addressing the controversy with respect to contempt of court, it would be appropriate first to understand the concept of contempt of court and its scope. This Court, in the recent case of Syed Ul Abrar vs. Provincial Government/Ombudsperson,6 explained the background of contempt of court in the following words:

“9. The next ancillary, incidental, and connected question that arises is how the High Court itself derives the power to punish for contempt. In order to safeguard the dignity and authority of the superior courts, prevent disobedience of their orders, discourage obstruction in the administration of justice, and reflect the collective wisdom and will of the people of Pakistan, Article 204 was incorporated into the Constitution of the Islamic Republic of Pakistan, 1973, which provides as follows: - “Article 204. Contempt of Court.

(1)In this Article, “Court” means the Supreme Court or a High Court.

(2)A Court shall have power to punish any person who-

(F.A.O No. 07-P of 2023/2026 PHC 173)

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; c) does anything which tends to prejudice the determination of a matter pending before the Court; or d) does any other thing which, by law, constitutes contempt of the Court?

(3)The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.”

Article 204 of the Constitution of the Islamic Republic of Pakistan confers upon the Supreme Court and the High Courts the constitutional authority to punish any person for contempt of court. This power emanates from the Constitution of Pakistan, which is the supreme law of the land. The Constitution was unanimously passed by the National Assembly in its session held on 10 April 1973 and was authenticated by the President on 12 April 1973. It was promulgated on 14 August 1973 as the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, the power to punish for contempt is not an inherent power of the courts but one that has been conferred upon the superior courts by the people of Pakistan through the Constitution. It defines contempt as any act that abuses, obstructs, or interferes with the process of the court, disobeys its orders, or undermines its dignity and authority. This includes scandalizing the court or its judges, committing acts that may prejudice the outcome of a case under consideration, or engaging in any conduct that the law recognizes as contempt. The Article 204 further provides that the manner in which this power is to be exercised may be regulated by law and, subject to such law, by rules framed by the respective courts. To give effect to this constitutional provision, the Contempt of Court Act 1976 was enacted, which was later repealed through the Contempt of Court Ordinance 2003. Subsequently, the Contempt of Court Act 2012 was promulgated, repealing the Ordinance of 2003. However, the Act of 2012 was challenged before the Supreme Court of Pakistan in Baz Muhammad Kakarcase,7 which struck it down 2012 PLD Supreme Court 923

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

and thereby revived the Contempt of Court Ordinance 2003. Thus, the power to punish for contempt is primarily derived from the Constitution of the Islamic Republic of Pakistan. To regulate and implement this constitutional power, the provisions of the Contempt of Court Ordinance, 2003, must be taken into consideration as a guiding framework.”

As highlighted above, in order to regulate and give effect to Article 204 of the Constitution, the Contempt of Court Ordinance, 2003 is to be invoked. Section 3 of the Ordinance classifies contempt into three categories, namely civil contempt, criminal contempt, and judicial contempt. Clauses (a), (b), and (c) of section 2 of the Ordinance define these three types of contempt in the following terms:

“(a) ‘Civil contempt’ means the willful flouting or disregard of—

(i)an order, whether interim or final, judgment, or decree of a Court;

(ii)a writ or order issued by a Court in the exercise of its constitutional jurisdiction;

(iii)an undertaking given to, and recorded by, a Court; or

(iv)the process of a Court;

(b)‘Criminal contempt’ means the doing of any act with intent to, or having the effect of, obstructing the administration of justice;

(c)‘Judicial contempt’ means the scandalization of a Court and includes personalized criticism of a Judge while holding office.”

These categories were further elucidated by this Court in the said case (supra), while quoting Amjad Ali, IHC v. The State,8in the following terms:

“11. The above-mentioned case has comprehensively elaborated the regime governing contempt of court, along with its scope, application, and procedural framework. Thus, Contempt of court refers to any act of disobedience, disrespect, or obstruction towards a court, its orders, or its authority. It includes actions such as defying court directions, disturbing proceedings, scandalizing judges, or undermining the administration of justice.

2024 P Cr. LJ 1803 Peshawar.

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

The core purpose of contempt law is to protect the dignity of the judiciary and ensure the effective administration of justice. Under the Contempt of Court Ordinance, 2003, contempt is categorized into three types.Civil contempt occurs when a person deliberately disobeys an order, judgment, writ, or undertaking given to a court. This form of contempt is primarily aimed at securing compliance with court directions and safeguarding the rights of the opposing party. Criminal contempt arises when an act is committed with the intent, or effect, of obstructing the administration of justice or lowering the authority of the court. The aim here is punitive, meant to uphold public respect for the judiciary. Judicial contempt refers specifically to scandalizing a court or personally attacking judges while they are in office. Contempt may further be classified as direct or indirect.Direct contempt is committed in the immediate presence of the court, typically involving conduct that disrupts judicial proceedings or undermines the authority and dignity of the court. It includes acts such as disorderly or disrespectful behavior in the courtroom, use of offensive language, refusal to obey lawful orders of the judge, or any action that obstructs the due course of justice.It is also called contempt in facie curiae.9 Indirect (or constructive) contempt, on the other hand, takes place outside the court, such as refusing to comply with a court order. Since the judge has no personal knowledge of the act, such contempt requires proof through evidence. This type of contempt is also called contempt ex facie Curiae.10 In cases of doubt, the law leans towards treating the act as indirect contempt. A key distinction exists between civil and criminal contempt, though often the line is blurred. Civil contempt is remedial and intended to benefit the complainant by compelling compliance. Criminal contempt is punitive, intended to protect the dignity and authority of the جج کی موجودگی ميں کی جاتی،توہين عدالت ہوتی ہے جو عدالت کے سامنے ِ يہ وه9 ہے۔يعنی جب کوئی شخص عدالت کے کمر ٔه عدالت ميں جج کے سامنے ايسا رويہ وقار يا، يا ايسا عمل کرے جس سے عدالت کی عزت، ايسی بات کرے،اختيار کرے "کہا جاتاcontempt in facie curiae" تو اسے،اتهارٹی مجروح ہو جائے ہے۔يعنی يہ وه توہين ہے جسے عدالت خود اپنی آنکهوں سے ديکهتی ہے اور جس کے ليے عام طور پر کسی لمبے تفتيشی عمل يا گواہی کی ضرورت نہيں ہوتی۔ توہين عدالت ہوتی ہے جو عدالت کے باہر کی جاتی ہے۔يعنی ايسا عمل جو ِ يہ وه10 عدالت کی موجودگی ميں نہيں بلکہ عدالت کے دائرے سے باہر سرزد ہو۔ اس ليے اس شواہد اور باقاعده کارروائی کی ضرورت ہوتی ہے تاکہ،کے ليے عام طور پر تحقيقات عدالت يہ طے کر سکے کہ واقعی توہين ہوئی ہے يا نہيں۔ Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

judiciary itself. Some cases may involve elements of both, and the nature of the punishment—whether remedial or punitive—usually determines how the contempt is classified. The power to punish for contempt lies primarily with the superior courts under Article 204 of the Constitution and the Contempt of Court Ordinance, 2003. The Supreme Court and High Courts may punish contempt of their own orders or those of subordinate courts. However, subordinate courts do not have jurisdiction under the Ordinance. Instead, they proceed under the provisions of the Criminal Procedure Code, 1898 (sections 476–487) and the High Court Rules. If the contempt committed amounts to an offence under the Pakistan Penal Code, 1860, subordinate courts may act accordingly, but in all other cases, it is for the High Court to try the contemnor. In essence, the law of contempt ensures that the courts are able to command obedience, respect, and dignity, without which the administration of justice would collapse. It provides a balance between protecting the rights of parties, securing compliance with lawful orders, and maintaining the authority of the judicial system as a whole.

The above-referred judgment clarified the classification and nature of contempt of court, which, if applied to the facts of the present case, would indicate that the matter brought by the petitioners falls within a mixed category of civil and criminal contempt, and is in the nature of contempt ex facie curiae. The petitioners allege violation of the order of this Court dated 23.05.2024. The said order is reproduced hereunder for ease of reference:

“As per instructions of this Court, two responsible officers i.e. Lutf-ur-Rehman, AAC, City & Salim Ayubi AAC, Faqirabad, Peshawar put their appearance before the Court. The learned counsel for the petitioners submitted that the respondents are adamant to close their business, and are interested in their force shifting from the place of their business to an abandoned place. He further submitted that because of the rash attitude of the respondents, the petitioners have suffered a lot and are still suffering, so the matter should be brought to an end. When the Additional Assistant

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

Commissioner and the Assistant Commissioner were asked to explain the situation, they disclosed that in respect of the same issue they made efforts to resolve the same, and that in that respect a site was selected for the petitioners to shift and to run their business over there. As at present, nothing is available before this Court in black and white and as the respondents are still to chalk out a mechanism for smooth shifting of the petitioners to another area, but the respondents are under obligation to select a site, which would feasible and reasonable as well and that both the parties must sit together and negotiate so that with consensus a suitable place could be selected. The respondents i.e. Additional Assistant Commissioner and the Assistant Commissioner committed before the Court that they will try to have a place of convenience for the petitioners and that both the parties will sit together to chalk out a mechanism. As the shops of the petitioner are sealed by the relevant authorities, so propriety demands that the same must be de-sealed. Respondent No.3 is directed to de-seal the same till the next date of hearing. Adjourned to 13.06.2024, however, the parties are directed to sit together to negotiate and to chalk out a mechanism that how the petitioners be shifted and that what suitable place is to be offered by the respondents.”

The above order clearly demonstrates that this Court had not restrained the respondents from shifting the petitioners to the newly specified place; rather, it directed that a mechanism be worked out through mutual consultation and consensus, while, in the interim, the shops of the petitioners were to be de-sealed. The plain implication of the order is that the act of shifting, by itself, was not considered to be violative of Article 18 of the Constitution, provided that the same was undertaken in a reasonable manner and upon offering a suitable alternative place. Significantly, the petitioners have not even pleaded that their shops were not de-sealed in terms of the direction issued by this Court. No averment to that effect, much less any supporting material, is available in the connected contempt petition so as to establish disobedience of the order of this Court. As regards the registration of FIRs during the interregnum, the petitioners have Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

an alternate remedy under the law. Likewise, no list of witnesses has been furnished with the petition, nor has any cogent material been placed on record to substantiate the allegation of willful disobedience or contempt of court. Such material is essential in the present case, as the alleged contempt is indirect in nature, having occurred not before the Court, and thus falls within the category explained above as contempt ex facie curiae.Moreover, it is a settled principle that contempt proceedings are essentially a matter between the Court and the alleged contemnor, and the Court alone has the exclusive discretion in that regard. If the Court is satisfied that willful and deliberate contempt has been committed, it may proceed even suomotu. However, in the present case, as discussed above, neither does the conscience of the Court perceive any contempt of court to have been committed, nor has sufficient material been brought on record to persuade the Court to initiate contempt proceedings.Therefore, the answer to Question No. 3 is in the negative, and the contempt petition, being devoid of substance, is not maintainable.

14.Last but not the least, the High Court, being a Constitutional Court, is vested with the power of enforcement under Article 199 of the Constitution. In the absence of such constitutional jurisdiction, the fundamental rights guaranteed by the Constitution would, to a considerable extent, be rendered ineffective, much in the same way as a decree passed by a civil court would become meaningless without an execution mechanism. Thus, the enforceability of fundamental rights through Article 199 constitutes an integral safeguard for their protection. In the present case, however, since no violation of Article 18 of the Constitution has been made out, the question of its enforcement does not arise.Before parting with this judgment, we consider it appropriate to place on record our profound appreciation for the valuable, diligent, and highly commendable legal assistance rendered by Mr. Riaz Aslam Daavi, Senior Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel

Research Officer (SRO) of this Court. His meticulous research, sound legal acumen, and dedicated professional support have substantially contributed to the proper appreciation of the legal and factual controversies involved, and have materially facilitated the just, fair, and effective adjudication of the matter in accordance with law.

15.For the reasons discussed hereinabove, both petitions lack substance and are accordingly dismissed. The petitioners are directed to shift to the newly designated market forthwith and to carry on their business there in the larger interest of the general public, is so desired. No order as to costs.

Announced on 04.02.2026.

Released on 13.04.2026.

JUDGE

JUDGE

Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’ble Mr. Justice Kamran Hayat Miankhel