P L D 1988 Quetta 52 (PLP)

ABDUL QADEER CHAUDHRY, Actg. C.J.‑‑This Judgment would dispose of the two petitions (C.P.No.29 of 1987 and C.P. No.93 of 1987) as they involve common questions of facts and law.

2. The facts in brief are that petitioners are running hotels/ restaurants in Quetta city. They are in possession of Televisions and V . C .3s. commercial licences. It is averred by the petitioners that on the basis of said licences the petitioners show films and Pakistani Dramas to provide entertainment to the customers free of cost who visit their hotels/ restaurants.

3. It is the grievance of the petitioners that respondents Nos. 1 to 4 without any basis or lawful authority have illegally stopped them from exhibiting the films and Pakistani Dramas on the basis of valid and legal documents. It is also claimed that possession of Video and T . V . commercial licence authorises the petitioners to exhibit motion films free of cost. This right has been claimed under the Wireless Telegraphy Act, 1933 read with Video Recording or Reproducing Apparatus (Possession and Licensing) Rules, 1984. The following reliefs have been claimed in the petition:‑ (i) a declaration be made to the effect that the petitioners have a lawful right to play the V.C.Rs. and T.Vs. on basis of their licences in hotels and restaurants and it be held that respondents have no lawful authority to interfere or restrain the petitioners nor are they entitled to stop playing of V . C . Rs. and T.Vs. by the petitioners for entertainment of their customers free of cost. (ii) It be further declared that on basis of Commercial Video and T . V . Licenses issued by the Respondent No. 5 the petitioners are entitled to exhibit dramas or series of motion pictures free of cost as a matter of right under law. (iii) the Respondents be directed not to stop the petitioners from playing V.C.Rs. and T.Vs on basis of Commercial Licences in their premises. (iv) any other order deemed fit and proper in view of the above mentioned submissions may also be passed. The Cinema‑owners were allowed to contest the petitions and they were impleaded as respondents on their applications. The petitioners then moved application for impleading Pakistan Television Corporation as a party and this application was also granted. Except Respondent No.5 i.e. Chairman Pakistan Television Corporation, the other respondents contested the petitions. According to contesting respondents, the petitioners are running illegal business through exhibition of Pakistani, Indian, English and Blue films and are charging Rs.5 from the customers for the same. The petitioners are not entitled to exhibit such films on the basis of the licences issued to them. It is further stated by the Cinema‑owners that they have exclusive right of exhibition of films and no one can either prepare a cassette or copy by duplicating process, nor exhibit it unless with the express permission of the producer/owner of the said film. These respondents have further added that in Pakistan it is only the Shalimar Recording Company Limited, Islamabad which purchases rights for preparation of cassettes from the Producer of the Pakistani films but even the use of the cassettes for exhibition is strictly for home and is prohibited to be shown in clubs, Restaurants or in public places. The case of Respondent No.5 is that V . C . R. and T . V . licences are issued to regulate the possession of the T . V . and V . C . R . sets and entitle the holders of the same to keep the set or sets in the premises indicated therein and to make lawful use of the same respondent No.5 has not interfered with the use or possession of the sets of the petitioners and they have not violated any right of the petitioners

4. The principal declaration sought by the petitioners is that on the basis of commercial Video and T . V . licences, petitioners are entitled to exhibit Dramas, Series f pictures, motion pictures free of cost.

5. Before dealing with the V .C. R. Rules, 1984 it would be appropriate to refer two statutes having bearing on the subject. These are "The Cinematograph Act of 1918" and Mules thereunder made of 1962 and "The Motion Pictures Ordinance 1979". The cinematograph includes any apparatus far the reproduction of moving pictures or series of pictures. section 2) It is provided under section 3 that no person shall give an exhibition by means of cinematograph elsewhere than any place licensed under this bet, or otherwise than in compliance with any conditions and restrictions imposed by such licence. Restrictions have been placed even on the powers of the licensing authority. Among others it is laid down under section (l that a condition shall be inserted in cry licence that the licensee will not exhibit, or permit to be exhibited, in the premise,:, or place any film other than a film which has teen certified as suitable for public exhibition by an authority constituted under the Censorship of Films Rules and which when exhibited, displays the prescribed mark of that authority, and has not been altered car tampered with in any way since such aria was affixed thereon. The penalty has been provided for the contravention of Act and Rules, merle thereunder by means of section 8 with an enhanced penalty for continuing offence. Under section 8(2) in case of conviction under said provision the Court may further direct that the film shall be forfeited tar the Government.

6. The second relevant statute is The Motion Pictures Ordinance, 1979. It is provided under this Ordinance that films which have not been certified by the Censor Board constituted thereunder, shall not be exhibited. The prohibition extends to making or arranging a public or private exhibition of a film by means of a cinematograph (S.4)'. By means of section 13 of the aforesaid Ordinance, no person shall give a public exhibition by means of cinematograph elsewhere than at a place licensed under this Ordinance, or otherwise than in compliance with any conditions and restriction imposed by such licence. Punishment has been provided under section 18 of the Ordinance. The next law on the subject is Censorship of Films Rules, 198f)1 Licensed place has been defined in Section 2(h) as under:‑ "Licensed place" means a place in respect of which a licence has been granted under subsection (1) of section 13 for giving of public exhibition by means of cinematograph. Under Rule 10(1) every application for certification of a film for public exhibition shall be submitted to the Board. Under Rule 10(2)(b) of these Rules, in the case of a foreign film or a film on V.C.R. every application shall be accompanied by certain documents. Under Rule 13 the Board shall not accept any feature film not being a foreign film if the total length of that film exceeds three thousand six hundred and fifty‑eight metres. Under Rule 17(2) if the Board considers a film to be‑ (2) (a) suitable for unrestricted public exhibition, orders for the grant of a certificate in form 'C' shall be passed; (b) suitable for public exhibition restricted to ails only, orders for the grant of a certificate in form D shall be passed; (c) suitable for public exhibition after excision of the portions specified by it, orders for the grant of a certificate in the appropriate form shall be passed subject to such excision; and (d) not suitable for public exhibition, the grant of a certificate may be refused and the applicant be informed accordingly. (3) When passing an order for the grant of a certificate the Board shall specify the area or areas in respect of which, and the period, not exceeding five years, for which, the certificate shall be valid. Under rule 28(2) the prescribed mark shall be affixed to the film to which it relates, and shall always be exhibited with the film. 7 The Television Receiving Apparatus (Possession and Licensing), Rules, 1970 (hereinafter referred as Rules) have been framed under Wireless Telegraphy Act XVII of 1933. The provisions of this Act, prohibits the possession of Wireless and Telegraphy Apparatus except under and in accordance with a licence issued under the Act, unless exemption is granted to any person by the Central Government subject] to prescribed conditions. The punishment for the contravention of the provisions of section 3 has been provided in section

6. The Television Receiving Apparatus has been defined in Rule 2(i) of the Rules as under:‑ 2. (a) .. (b) . (c) . (d) . (e) .. (f) (g) ............... (h) .. (i) "Television Receiving Apparatus" means any apparatus which is capable of being used for receiving the telecasts of the Corporation either by itself or with the addition of electric power, aerials, valves or similar other devices, and includes any apparatus which is temporarily incapable of being so used by reason of a defect in its component parts or in the electric wiring. A person being in possession of a Television Receiving Apparatus (holder) may keep the same on payment of prescribed fee and obtain a licence for keeping such apparatus.

8. Video Recording or Reproducing Apparatus has been defined in rule 2(h) of the Video Recording or Reproducing Apparatus (Possession and Licensing) Rules, 1984 as under:‑ (h) "Video recording or reproducing apparatus" means any apparatus which is capable of being used for recording or reproducing image and sound of a television programme or motion picture or series of motion pictures either by itself or with the addition of electric power, serial valve or similar I other device, and includes any apparatus which is temporarily incapable of being so used by reason of defect in its component parts or in the electric wiring. Under Rule 7(1) a licence shall authorise the licensee to keep one video recording or reproducing apparatus in one building specified therein. Provided that the Licensing Authority may permit a licensee to keep the apparatus in two or more buildings. By means of Rule 13 the Licencing Authority may, during the currency of a licence, alter, amend or vary and entry made therein, and the Licencing Authority may cancel any licence issued to any person who has been convicted of a breach of these rules or an offence punishable under section of the Act. The Act means the Wireless Telegraphy Act, 1933,.

9. Coming to V.C.R. Rules of 1984 if claim of petitioners that they have a right to exhibit films is accepted the same‑would result in breach of not only Cinematography Act, 1918 and Motion Pictures) Ordinance, 1979 but of Censorship of Films Act, 1980, and entertainment Duty Act. The V.C.R. Rules are silent about the use of apparatus by a licensee. While construing the same rules following principles of interpretation may be kept in view:‑ (a) Rules are always subordinate to main enactment. (b) While framing law the Legislature or in that matter the rule‑making authority is aware of existing laws. (c) Every effort is to be made to so interpret a principle of law or rules that existing laws are saved and every provision of same Act or rules is given harmonious effect.

10. Under V.C.R. Rules, 1984 'holder' of Video Recording and Reproducing Apparatus has been defined under clause 2(e) as "holder means any "person for the time being in possession of a video recording or reproducing apparatus". Possession of Video Recording ante Reproducing Apparatus without licence entails penalty under Rule 8.

11. Scope and extent of use of a V.C.R. is not given in the rules except the forms in .which licences are to be issued. The categories of holder are: ‑ (i) Dealer licence in Form‑III (ii) Other than a dealer Form‑II. In Rule 3(3) there is indication that there' can be two sub‑categories of holders other than dealer's namely (i) those not maintaining V.C.R. for commercial purposes and (ii) those maintaining V . C .3. for commercial purposes. Commercial purpose has not been defined though an idea of such purpose could be gathered from definition of dealer as given in rule 2(e) "dealer" mans any person who deals in video recording or reproducing ‑apparatus or manufactures or assembles or imports such apparatus for sale.

12. While another provision which could be relevant is regarding fee to be charged and the same is in rule 3(3). (i) Fee of Rs. 200 from one who is not dealer and does not maintain V . C . R . for commercial purpose, (ii) Fee of Rs. 400 for holder maintaining V.C.R. for commercial purposes. Another aspect meriting the attention is that by its very definition in rule 2(h) the apparatus is defined as one used for recording or reproducing sound of T.V. programme or motion pictures or series of :notion pictures. One interpretation can be than only such programmes and motion pictures can be recorded and reproduced as are telecast on television but permission to record and produce such programmes in any case does not mean that they are, allowed public exhibition of other films, and thus defeat provisions of other laws. The licences issued to the petitioners authorise them subject to the conditions laid down in the Video Recording or reproducing Apparatus and Licensing Rules, 1984 to establish and maintain Video Recording or Reproducing Apparatus at the premises. By this licence petitioners have been only authorised to maintain V . C . Rs but this licence does not give the petitioners a general licence to exhibit films or dramas in violation of other laws. The petitioners have averred that they are exhibiting films and Pakistani dramas. They have not made clear statement of facts. They have not shown, or established that by means of a licence issued by respondent No.5. they are entitled to exhibit Pakistani films and dramas. The respondent No.5 in his written reply, has stated that petitioners have legal rights to possess T . V . and V . C . R . sets, but he has not supported the claim of the ,petitioners that by virtue of such licence they are entitled to exhibit films and Pakistani dramas. The petitioners have averred that the possession of a licence authorise the petitioners to exhibit the motion films free of cost. The petitioners have failed to substantiate this contention by any statutory provision. The petitioners cannot be permitted to override the other statutory provisions which provide the basis and procedure for granting a sanction to exhibit the films.

13. Another aspect of the case is that petitioners have raised disputed questions of facts. In paras 3 and 4 of the petition, they have alleged that they are exhibiting films and Pakistani Dramas free of cost. This contention has been repudiated by the, contesting respondents. Respondents Nos.l 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 Pakistani films and dramas, but were also showing foreign films which have been smuggled into the country.

14. The petitioners have not come to the Court with clean hands. The petitioners had filed a civil suit for permanent injunction against respondents Nos.l 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‑owners 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 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. The petitioners thereafter file the Constitutional Petition on 2h‑3‑1987. The petitioners have riot 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 films.

15. Learned counsel for petitioners has referred to Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmed Khan (P L D 19"15 S C 667), but this authority goes against. the petitioners. It has been observed as under:‑ "Article 18 of the Constitution of Pakistan, 2972 which relates to the freedom of trade, business or profession, which corresponds to Article 15 of the 1972 Constitution, and which incidentally held the field 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 N 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, can the wording of Article 19 of the Constitution, the right to enter upon a 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. ' The Authority further lays down that law is well‑settled that in generality of cases, licence (simpliciter) is a privilege and not a legal right. Learned counsel for petitioners also relied upon Mrs. Panzy Feernandas v. Mrs. M.F. Queoros and others (A.I.R.1963 Allahabad 153) which contemplates that the Court should bear in mind three well‑known cancans of interpretation of namely, first such statutes are to be construed strictly; secondly the subject should not be made liable for payment of enhanced Court‑fee unless such a step is warranted by the clear provisions of the statute; and thirdly, where there is doubt in the matter, an interpretation favourable to the subject should be preferred. There is no cavil with this proposition, but cited case does not support the contention of the petitioners and has no bearing on the facts of the present case. For the aforesaid reasons we are not inclined to allow these petitions, same are dismissed with costs. M.B.A./300/Q Petitions dismissed.