P L D 1960 (W (PLP)

KAIKAUS, J.‑In this petition one Ahmad Zafar challenges an order passed by the Government of West Pakistan under section 12 (1) (ii) of the Security of Pakistan Act, 1952, refusing permission to make a declaration under subsection (2) of section 5 of the Press and Registration of Books Act, 1867.

2. Some preliminary facts have to be stated. The petitioner filed in the first instance in December, 1955 a declaration under section 5 of the Press and Registration of Books Act, 1867, for a weekly called `Tameer'. He was called upon to deposit a security of Rs. 1,000 under section 7 of the Press (Emergency Powers) Act. He failed to deposit the security and the declaration lapsed. In December 1956, he filed another declaration for a weekly called "Haft Rang". Again a security was demanded and again it was not deposited, with the result that the declaration lapsed. In March, 1957, the petitioner filed a declaration for a two monthly journal called "Shah Tab". On the 29th of May, 1958, he received a letter from the District Magistrate, Rawalpindi, to the effect that the Government of West Pakistan, being satisfied that the proposed paper would be used for anti‑State and subversive purposes, had refused to give permission for the filing of the declaration. On the 9th of September, 1958, the petitioner received from the Provincial Government a letter which purports to contain the grounds on which action had been taken under the Security of Pakistan Act. In the present petition the petitioner challenges the order passed by the Government of Pakistan refusing permis sion to file a declaration in respect of "Shah Tab".

3. The order is challenged on two grounds. The first is that under section 12, it is only if the Central Government is satisfied of the need for an order under section 12 (1) (ii) that such an order can be passed. The second is that the ground for the order should have been conveyed to the petitioner, and the letter of the 9th September does not, in fact, disclose any grounds.

4. It will be convenient to quote here the relevant provisions of the Security of Pakistan Act :‑-- "

6. Communication of grounds of order.‑In every case where an order has been made under subsection (1) of section 3 or under section 10, section 11 or section 12, the authority making the order shall, as soon as may be, but not later than fifteen days from the date of detention, communicate to the person or association affected thereby the grounds on which the order has been made to enable him or it to make a repre sentation in writing against the order, and it shall be the duty of such authority to inform such person or association of his or its rights of making such representation and to afford him or it the earliest opportunity of doing so: Provided that nothing in this section shall require the authority to disclose the facts which it considers to be against the public interest to disclose". "12. (1) Where the Central Government is satisfied that in the interest of the defence, the external affairs or the security of Pakistan, or the maintenance of public order within the Federal Capital or of the maintenance therein of essential supplies or services, it is necessary so to do, the Central Government or any authority empowered by it in this behalf may‑-- (i) by order addressed to a printer, publisher or editor, or printers, and editors generally,‑ (a) require that all matter relating to a particular subject or class of subjects affecting the defence, external affairs or the security of Pakistan or the maintenance of public order within the Federal Capital or of the maintenance therein of essential supplies or services shall before being published in any document or class of documents, be submitted for scrutiny of any authority specified in the order ; (b) impose reasonable restrictions on the making or publishing of any document or class of documents or any matter relating to a particular subject or class of subjects affecting the defence, the external affairs, the security of Pakistan, or the maintenance of public order within the Federal Capital or of the maintenance therein of essential supplies or services ; or (ii) refuse to permit on reasonable grounds any person to make a declaration under subsection (2) of section 5 of the Press and Registration of Books Act, 1867." As regards the first point, it will be observed that under section 12, satisfaction of the Central Government is a condition precedent to the making of the order. It is true that once the Central Government is satisfied of the need for making such an order, the order can in fact be made by an authority empowered by the Central Government, but such authority is only an instrument for the passing of that order and cannot act on its own initiative. The Government of West Pakistan has been empowered by notification No. 22/3/58‑Poll (1), dated the 15th of March 1958, (Gazette, Extraordinary, 15th March, 1958), but the only authority granted to the Government is under section 12 (1) (ii), i.e., the authority to pass an order. The notification does not say, and in law could not say, that the satisfaction of the Governor is to be substituted for the satisfaction of the Central Government. In the present case, it is not alleged that the Central Government was at any stage satisfied as to the need for passing the order in question and it is admitted that the order was passed by the Governor on his own satisfaction. In the circumstances of the case, this writ petition has to succeed on the simple ground that the impugned order is without jurisdiction and void.

5. It will not be improper to consider the other ground also for it appears that the petitioner has a good case even on this basis. Under section 6 of the Security of Pakistan Act, grounds for the passing of an order under section 12 are to be conveyed 1 to the person concerned as soon as may be. In this case, the grounds were furnished only after about four months, but that is not the point which may be made the basis of decision in this case, because the grounds were furnished, and if the grounds were proper, this writ would not succeed merely on the ground of delay. The defect in the proceedings is that the letter of the Government, which purports to convey the grounds, does not in fact convey any information. We will reproduce below the whole of this letter :‑-- "Reference your application made to the District Magis trate, Rawalpindi, for the grant of declaration for the publica tion of an Urdu two monthly entitled "Shah‑i‑Tab" from Rawalpindi. "In view of your association with an organization which is not sincere to the interest of Pakistan, Government of West Pakistan are satisfied that the proposed paper would be used by you for anti‑State and subversive purposes. It has, there fore, been decided that under clause (ii) of subsection (1) of section 12 of the Security of Pakistan Act, 1952, as amended by Act XIII of 1958, read with Government of Pakistan's notification No. 22/3/59 Poll (1), dated the 15th March, 1958, the declaration applied for should be refused. "As provided in section 6 of the Security of Pakistan Act, you may, if you so desire, make a representation in writing against this order direct to Government in the Information Department within one month of the date of issue of this com munication at the latest." According to this letter, the ground on which the declaration has been rejected is that the petitioner has association with an organisation which is not sincere to the interests of the State, but the letter does not name or give any particulars of, that organisa tion. The main object of section 6 is that the person concerned should be able to meet the grounds on which action is to be taken against him. But if the information given be so vague, we' do not see how he could make any effective representation. In reply to such a letter he could only say, "I have no connection G with any organisation." But, if there be any material before the Government as to his connection with a particular organisation this reply will not help him. It is essential for a compliance with section 6 that the person concerned should have a fair notice of the facts on the basis of which he' is being proceeded against, and in such a way that he is able to explain or to rebut the facts which appear against him.

6. At the same time, it may be observed, section 12 (1) (ii) requires the existence of reasonable grounds before an order is passed. Reasonable ground means reasonable in fact. The wording of this section shows that it is not merely the subjective satisfaction of the authority passing the order that would validate an order. The amendment of section 12, by which the words "reasonable ground" were inserted in it, was made in order to give effect to the provisions of the late Constitution, and, apparently, words referring only to a subjective satisfaction were deliberately not used. If an order under section 12 (1) (ii) were simply to state that the petitioner has connection with an objectionable organisation without naming or giving particulars of that organisation, it would be difficult to say that there are reasonable grounds for making the order.

7. This writ petition succeeds. The orders are declared void and shall not be given effect to. The District Magistrate, before whom the declaration has been filed, will now proceed in accord ance with law. The petitioner shall have his costs. A. H. Petition accepted.