2009 PLP 1248 (YLR)

MRS. QAISER IQBAL, J.

The appellant has assailed order passed by District Coordination Officer dated 15th August, 2005 whereby the declaration of "Urdu weekly Friday Special Karachi" was cancelled vide notification issued by Government of Sindh Information and Archives Department Press Information Section on 15th August, 2005 reads as under: -- "District Coordination Officer City District Government Karachi, in separate orders has said that on publishing objectionable material, which creates sectarian extremism, hatred amongst various sects and causing danger to public safety/ order, as reported by the Capital City Police Officer Karachi, and the recommendation made by the Home Department, Government of Sindh, the declarations issued in respect of the periodical/1. Weekly titled "Wajood" Karachi, 2 weekly titled "Zerb-e-Islam" Karachi, and 3, weekly titled "Friday Special" Karachi have been withdrawn as cancelled, with immediate effect in pursuance of section 19 of Press and Publication Ordinance 2002, in the interest of maintenance of public order/tranquility." Learned counsel for appellant has contended that the declaration of Urdu Weekly Friday Special was cancelled along with other weeklies whereby the Respondent No. 2 cancelled the declaration illegally, unauthorizedly, without notice to the appellant. The impugned order is absolutely based upon conjectures, without giving an opportunity of show cause against the proposed action without holding an inquiry into the matter the declaration of the weekly was cancelled in arbitrary manner therefore impugned order is liable to be set aside, the declaration of the weekly is liable to be restored. On behalf of the respondent Deputy Director Information Press filed the comments, did not contest various averments contained in the appeal, withdrawal of the declaration by District Coordinating Officer and cancellation of the weekly Urdu Special was admitted. The sole question requiring consideration is as to whether penalty regarding non-publication of magazine without proof of the facts based upon summary findings on the basis of report of the Home Secretary, Government of Sindh was sufficient to meet requirements of law and the respondents were justified in concluding that its declaration be cancelled. The Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 (hereinafter referred to as "Ordinance") was promulgated to streamline the matters relating to the news agencies publication, printing press and other matters ancillary thereto. Section 19 of the Ordinance, deals with the cancellation of declaration reads as under:-- "

19. Cancellation of declaration.--(1) On the application of the Press Registrar either suo motu or based on the information through any person, the District Co-ordination Officer empowered to authenticate a declaration under this Ordinance, is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the. person concerned an opportunity of showing cause against the action proposed to be taken, hold an enquiry into the matter and if, after considering the cause, if any, shown by such parties and after giving them reasonable opportunity of being heard, he is satisfied that:- (a) the newspaper, in respect of which the declaration has been made is being published in contravention of the provisions of this Ordinance or rules made thereunder; or, (b) the newspaper mentioned in the declaration bears a title which is the same as, or similar to that of any other newspaper published either in the same language or in the country; or (c) the printer and publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or (d) the declaration was made on knowingly false representation or on the concealment of any material fact or in respect of a periodical work which is not a newspaper; the District Co-ordination Officer may, by order, cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and also to the Press Registrar. (2) During the period of sixty days of the cancellation order no person shall be issued a declaration in the name of the same title to any other person." The above provisions of law lay down that a declaration should be cancelled by District Coordination Officer, after giving the printer and publisher an opportunity of showing cause against the proposed action that hold an enquiry into the matter and, after giving them reasonable opportunity, if he is satisfied under clause 1(d), he may cancel declaration and shall forward as soon as possible, a copy of the order to the persons making or subscribing the declaration and also to the Press Registrar. In the case of Government of the Punjab v. Dr. Ijaz Hasan Oureshi (PLD 1985 SC 28) dealing with similar question as is involved in the present application relying on the case of Mare v. Harding (1867 LR 2 QB 410) and Abdul Majid v. The State (PLD 1973 Lahore 448), the court came to the conclusion that unless proper opportunity of hearing is afforded to the Printer and Publisher and no impediment exists in their way to appearing before District Magistrate in person with a view to satisfy of the grounds if unable to print and publish the Newspapers, provisions of subsection (5) of section 9 cannot be held to have been complied with. Merely because Printer and Publisher could address the letter to District Magistrate, which might or might not have reached him within contemplated period and even if it did may not be itself have been sufficient to conclude uncertainties and doubts that he may be entertaining, cannot be regarded as sufficient compliance within nature of privilege that has been allowed by subsection (5) of section

9. From the comments filed by the respondents, no explanation has - been afforded as to why Publisher and Printers were not afforded an opportunity to show cause. It seems that the impugned order was passed without taking into consideration requirements of section 9 of the Ordinance, no serious efforts seem to have been taken by the District Coordination Officer to find out the facts required to be proved for holding the appellant's declaration as cancelled, which seems to be unfair practice On the part of the authorized officer. In this view, I am fortified with the case of Sardar Khan Niazi v. Province of Sindh through Secretary, Information Department Government of Sindh and 3 others (2008 SLJ 310), passed by a Division Bench of this court. For the foregoing reasons, I am constrained to remand the matter to the Respondent No. 2 to decide the same afresh after hearing all the concerned parties, affording them, an opportunity to produce evidence in support of their contentions. While deciding the matter, Respondent No.2 shall take into consideration all factors relevant under the law specifically on the following points:-- (1) Whether the Appellant had published Friday Special, Karachi containing objectionable material, which may create sectarian extremism, hatred, amongst various sects and cause danger to public safety/order? (2) What is the effect on the undertaking filed by the learned counsel for the Appellant before this court? (3) Whether the Appellant had unexceptionally taken care to promote cohesion, affectionate relationship and brotherly equation amongst different sects and classes of population with a view to foster peace and harmony in the society? The Respondent No.2 would be required to give clear findings on the above issue and decide the matter on merits. Since the matter is old, the Respondent No.2 is directed to decide the matter within four months. A copy of this order be sent to the Respondent No.2 for compliance in the above terms. H.B.T./S-40/K Order accordingly.