LAHORE, Feb 15: A full bench of the Supreme Court of Pakistan has held, in its detailed judgement in kite-flying case, that IGPs and DIGs of police, district, town and union council nazims will be directly responsible for enforcement of court orders against kite-flying.

The court further held that in case of a violation they would be held liable for action. It directed IGPs to transmit daily situation report to the Registrar of the Supreme Court about kite-flying related incidents during February 25 and March 10, 2006. The Court would review its order or suspend operation of the Punjab Prohibition of Kite Flying Ordinance 2006 if glaring violating of its different provisions is committed.

The October 25, 2005 order of the Court, placing ban on kite flying activities, shall remain applicable, except for the period between February 25 and March 10.

The court observed that before commencement of this 15-day period, every manufacturer and trader should get himself registered under Section 4-A of the ordinance and only the registered manufacturers and traders would be allowed to do this business.

The court clarified that after March 10 there should again be a complete ban on kite flying.—APP

The following is the text of the Supreme Court order.

Present

Mr Justice Iftikhar Muhammad Chaudhry, CJ Mr Justice Javed Iqbal Mr Justice Faqir Muhammad Khokhar Mr Justice Tassaduq Hussain Jillani Mr Justice Chawdhary Ijaz Ahmad

Suo Motu Petition No.11 Of 2005 (Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan)

(Loss of lives of innocent Children due to kite-flying) & CMA 1771 to 1846-L/2005 (Liaquat Ali S/o Barkat Ali & 75 others) & CMA 1867 to 1875-L/2005 (Bano Bibi, widow of Sain Lal Din & 8 others)

ORDER: Learned advocate general contended that in pursuance of directions of the Court, contained in order dated 25th October 2005, Provincial Government of Punjab had promulgated Punjab Prohibition of Kite Flying Ordinance 2006 (Punjab Ordinance No.1 of 2006, hereinafter referred to as “the Ordinance”). He prayed that 15 days time be allowed under Section 4 of the Ordinance for kite flying activities in the Province of Punjab by relaxing the ban on such activities vide order dated 25th October 2005. We have gone through the contents of the Ordinance. Relevant Sections therefrom are reproduced herein below for convenience:-

“3. Cognizable and non-bailable offence:- Notwithstanding anything contained in any other law for the time being in force, an offence under this Ordinance shall be cognizable and non-bailable and would be tried summarily under Chapter XXII of the Code of Criminal Procedure, 1898 (Act V of 1898).

4. Offence and punishment. (1) No person shall:-

(a) commit or abet an act of kite flying;

(b) manufacture, sell or offer for sale a kite; and

(c) manufacture, store, sell or offer for sale metallic wire, nylon cord (tandi) or any other thread coated with sharp Maanjha or any other injurious material for the purpose of kite flying.

(2) The Nazim of the concerned District may, through a notification issued with the prior approval of the government, allow kite flying and sale of kites for a period not exceeding fifteen days during the spring season in a year, provided that kite manufacturing may be allowed for such period as the government may specify by a general or special order.

Explanation:- Nothing in this sub-section shall be construed to allow flying of a kite with metallic wire, nylon cord (tandi) or a thread coated with sharp Maanjha, manufacturing or sale of any such injurious material for the purpose of kite flying.

(3) Subject to sub-section (2), a person who contravenes the provision of sub-section (1) shall be liable to imprisonment for a term not exceeding three years or to fine not exceeding forty thousand rupees or to both.

4-A. Registration:-

(1) Every manufacturer, trader or seller of kites or kite-flying material shall get himself registered with the concerned city district government or the district government in the manner as may be prescribed by the government through a notification.

(2) A person, who contravenes the provision of sub-section (1), shall be liable to imprisonment for a term not exceeding six months or to fine not exceeding forty thousand rupees or to both”.

A perusal of above sections indicates that sale of metallic wire, nylon cord (tandi) or any other thread coated with “sharp Maanjha” or any other injurious material for the purpose of kite flying has been banned. Section 2(e) of the Ordinance defines “Sharp Maanjha” as under:-

“sharp maanjha” means a mixture of chemicals and grinded glass or any other injurious and dangerous material coated on thread for the purpose of kite flying”.

It may be noted that “thread” coated with “sharp maanjha” is a special twine, prepared with paste made from eggs, white flour or boiled rice, mixed with grinded glass colour and few other ingredients. Flying kites with such like twine would be an offence under Section 4 of the Ordinance.

2. On the previous dates of hearing learned counsel appearing for kite manufacturers etc. explained the difficulties being faced by the workers engaged in this trade, including situation of putting them out of job because of the ban imposed by this court on such activities. It was also explained that in absence of any law, the persons engaged in this business can claim to run the trade of manufacturing of kites and kite flying twine in terms of Article 18 of the Constitution. As now law has been promulgated which is somewhat in consonance with the order passed by this Court on 25th October 2005, therefore, subject to following conditions and strict adherence to the provisions of the Ordinance, permission of kite flying activities is allowed for 15 days, commencing 25th February 2006 to 10th March 2006:-

1) The order dated 25th October 2005 passed by this Court, placing ban on kite flying activities, shall remain applicable, except for the period commencing 25th February 2006 to 10th March 2006.

2) Before the commencement of above period of 15 days, every manufacturer/ trader shall get himself registered in accordance with the provisions of Section 4-A of the Ordinance. No one, except the registered manufacturers/ traders, etc, shall be allowed to enter into the trade of manufacturing/ trade of kites or kite flying material.

3) The shopkeepers, interested in the business of kites and kite-flying material, shall obtain permission through licence from the Registration Authority and on the following day of expiry of above period of 15 days i.e. on 11th March 2006, kites and kite-flying material shall not be sold by them, otherwise they would be liable for the contravention of the directions of this Court.

4) Kite flying activity with nylon cord (tandi), metallic wire and “thread” coated with “sharp Maanjha” (as it has been explained hereinabove) shall remain prohibited during the period of relaxation of ban.

5) The manufacturers/ traders of kites and kite flying material shall not be allowed to consume four-week time provided to them vide notification No. SOV(LG)-5-10/2003(P) and they shall be allowed to do such activity during the period of 15 days commencing from 25th February 2006 to 10th March 2006. Notification issued in this behalf is hereby suspended only to extent of allowing four weeks time period to the traders/ manufacturers and to manufacture kites and kite flying material.

6) The nazims all over the ‘province of Punjab’ and in other provinces shall celebrate “Jashan-e-Baharan” on one date, with the approval of their respective governments. Celebration of such function on different dates in different Districts shall not be permitted because if such practice is allowed, then there would be such activity throughout the year in all the Provinces, which is not in the interest of justice.

7) The offence under Section 4 of the Ordinance is summarily triable by a magistrate, therefore provincial government, to have effective check and in order to avoid violation of the Ordinance and order of this Court, may confer special magisterial powers on some of its officers, including the inspectors appointed under section 142 of the Punjab Local Government Ordinance 2001, by allocating different areas to them.

8) The inspector generals of police, deputy inspector generals of police, district nazims, council/ tehsil/ town nazims shall be directly responsible for the implementation of the provisions of the ordinance as well as this order and in case of any violation they will also be held liable for action accordingly.

9) The inspector generals of police shall transmit daily situation report to the registrar of this court, about the incidents, if any, took place, during the period of 15 days commencing 25th February 2006 to 10th March 2006, enabling the court to review the instant order or suspend the operation of the Ordinance, if glaring violations falling within the mischief of different provisions of the Ordinance are being committed.

3. Mr Shahid Hamid, learned Sr ASC, who appeared as amicus curiae, made certain suggestions for implementation of the Ordinance in letter and spirit. He is directed to hand over the same to the Government of Punjab through the Advocate General Punjab for consideration.

4. It may also be clarified that after completion of the period of fifteen days, allowed hereinabove for the kite flying activities, from 11th March 2006 onward there shall be complete ban and violation of the same shall be checked by the police authorities of the province. They would ensure that order of prohibiting kite flying activities is fully enforced.

5. With regard to treatment of Fahim Shahzad, learned advocate general Punjab stated that the Government of Punjab (Health Department) has obtained an opinion from a Hospital abroad and is ready to bear expenditure for his treatment over there. In this behalf, he has placed on record a report received from one of the Hospitals from Ireland. Mr M. Ilyas Khan, learned Sr ASC appeared and stated that he could also contact with doctors in Wales, as his younger brother is working as Senior Consultant Surgeon over there. He stated that on receipt of the report, he would transmit the same to the Government of Punjab through the office of advocate general. In such view of the matter, he is allowed to obtain an opinion on the basis of documents, which shall be sent to the said hHospital by him and whatever opinion is received from the said hospital, the same shall be sent to the Government of Punjab through the advocate general. In the meantime, the Health Department and other concerned quarters shall decide to make necessary arrangements for sending Fahim Shahzad abroad along with one attendant for treatment.

6. In the matter of Abdullah Umar, learned Advocate General Punjab stated that doctors are examining his case and the Government of Punjab is ready to provide necessary assistance, whatever is possible, to them and in this behalf report shall be submitted on the next date of hearing.

Case is adjourned to 17th March 2006 for the purpose of further hearing and examining the reports received in this behalf.