P L D 1969 Quetta 1 (PLP)

A. R. SHEIKH, J.

‑ This writ petition has arisen out of the following facts. The petitioner, Zafarullah Khan, has beers publishing a Weekly Pushto Journal from Quetta known as Zafar‑i‑Islam. Prior to November 1966, the Journal was printed in the Zamana Press, Quetta. It is, however, stated that the press, influenced by the then Medical Superintendent of the Civil Hospital, Quetta, against whose administration the Journal published critical letters, from its readers, refused to print the Journal and the petitioner was obliged to approach they Bolan Press, Quetta, for the purpose. Accordingly the Declaration Form of the said press under section 7 of the West Pakistan Press and Publications ordinance, 1963 (hereinafter called the Ordinance), along with the petitioner's fresh Declaration Form for publishing is averred to have been attempted to be filed with the District Magistrate, Quetta (respondent No. 2), without success. As a consequence the petitioner submitted the two sets of Declaration Forms to the Ministry of Information and Broadcasting under registered cover sometimes in December 1966. After a reminder to the Ministry, the petitioner received informa tion from the Assistant Director (Press), Lahore, to file the fresh publisher/printer declarations with the District Magistrate. Meanwhile the petitioner had been successful in persuading the Zamana Press to resume printing of his Journal, with the result that he filed his Publisher's Declaration Form and Printer's Declaration Form by the Zamana Press before the District Magis trate, on the 3rd of July 1967. The District Magistrate by his letter No. 1/65‑Books, dated the 12th of September 1967 informed the petitioner that "necessary enquiry as laid down in section 12 of the Press Publications Ordinance, 1963, has been completed and the matter has now been referred to the Gov ernment under subsection (2) (j) of section 12 of the Ordinance." This communication was followed by Memorandum No. 1/67/ Books/AB, dated the 11th October 1967, from the District Magist rate to the petitioner regretting that the declarations filed by him in respect of the Zafar‑i‑Islam Journal could not be authenticated. Being aggrieved by this order the petitioner made a representation to the Provincial Government (Ministry of Infor mation), respondent No. 1, urging that `the District Magistrate has not acted bona fide and has failed to act according to the provisions of section 12 (2) of Ordinance XXX of 1963 and has refused to authenticate the declaration of the applicant without giving him any opportunity of being heard and without giving him any chance of knowing the allegations against him on the ground of which his declaration was refused and of showing that any allegation against him was made mala fide and had no substance in the same. Thus the provisions of law and the principles of natural justice have been clearly violated." This representation was considered by the Provincial Government and the petitioner was advised to appear before the District Magistrate, Quetta, for hearing in his case. At this stage it will be pertinent to mention that the endorsement by the Government to the District Magistrate of this reply to the petitioner, reads as under:‑ "A copy is forwarded to the "District Magistrate, Quetta, for information with reference to correspondence resting with this Department Momo. No. 4997‑67/6036‑PB, dated the 29‑9‑1967. The main ground of appeal is that Mr. Zafa rullah Khan, Publisher of the defunct weekly Zafar‑i‑Islam. Quetta was not heard by the District Magistrate before. passing orders. In accordance with the provisions of the law,, the Publisher has to be provided an opportunity to be heard in person before refusing to authenticate the declaration. This formality may now please be observed." In obedience to the advice received from the Provincial Govern ment, the petitioner along with his counsel appeared before the District Magistrate on the 26th of March 1968, who has again refused to authenticate the declaration of the petitioner under section 12 of the Ordinance on the ground that enquiries were made by him from the quarters concerned on the points stated in subsection (2) of section 12 of the Ordinance and from the reports received he was satisfied that the publisher was likely to act in a manner prejudicial to the security of

2. Aggrieved by this order the petitioner has invoked the jurisdiction of this Court under Article 98 of the Constitu tion Act of 1962 and the main contention put forward on behalf of the petitioner is that under section 12 of the Ordinance, as amended, the District Magistrate is to refuse authentication of the declaration of a printer or publisher if the Provincial Government is satisfied on the basis of information in its possession and after giving such printer or publisher an opportunity of being heard that he is likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan, of public order, or public safety in the Province of West Pakistan, or to use the newspaper in respect of which the declaration is made for the purposes of incitement to the commission of any cognizable offence involving violence or for defamation, and that in the instant case the petitioner was not given any opportunity of being heard by the Government and also that it was not the Government which was satisfied that the petitioner was likely to act prejudicially to the security of Pakistan and for that reason the order passed by the District Magistrate refusing authentication of publisher's declaration is a case of illegal assumption of jurisdiction. It was also contended that under the law when the petitioner had filed his publisher's declaration along with the Printer's declaration on behalf of the Bolan Press, the District Magistrate was not justified in refusing to entertain the said Declaration Forms obliging the petitioner to approach the Provincial Minister for intervention to the matter. It was next contended that when the petitioner bad been advised by the Provincial Government by Memorandum No. 228‑67/527‑Press, dated the 7th of February 1967 (Annex. 'K' to the petition) to take action for the revival of his Journal as required under the Ordinance and arrange to file the fresh Publisher/Printer declarations with the District Magistrate, Quetta, the declarations filed by the petitioner on the 3rd of July 1967 were unnecessarily detained by the District Magistrate till the 4th of September 1967, when he was obliged to serve a notice on the said functionary to decide his case and it was only after the said legal notice that the District Magistrate informed the petitioner that the matter had been referred to the Government under subsection (2) (f) of section 12 of the Ordinance. He maintained that the entire conduct of the then District Magistrate savours of mala fides and his action referring the matter to the Provincial Government under subsection (2)(f ) of section 12 of the Ordinance was illegal and without jurisdiction, because on the relevant date subsection (2)(f) of section 12, of the Ordinance stood repealed and it was merely a device adopted for delaying the petitioner's case for no rhyme or reason. It was also argued that the final reply given by the District Magistrate on the 11th of October 1967 regretting authentication of the petitioner's declaration was a link of the same chain of victimization and refusing the legal right of the petitioner without disclosing or indicating any reasons for the refusal.

3. In support of the contention that the petitioner had been condemned unheard, learned counsel referred to the represen tation made by the petitioner against the order of refusal dated the 11th of October 1967 and the subsequent communica tion of the Provincial Government asking the petitioner to appear before the District Magistrate, who has finally refused authentication of the declarations on the 26th of March 1968 by the impugned order. In order to appreciate the argument, the relevant provisions of sections 4, 7, 9 and 12 of the Ordinance may be reproduced in extenso along with the amendments made therein from time to time:‑ West Pakistan Press and Publications Ordinance, 1963 "4. (1) No person shall keep in his possession any press for the printing of books or papers, unless he has made and subscribed before the District Magistrate within whose local jurisdiction such press may be, a declaration in Form A or such other form as may be prescribed. (2) As often as the place where a printing press is kept is changed, a fresh declaration shall be necessary Provided that where the change is for a period not exceeding sixty days and the place to which the printing press is shifted is within the jurisdiction of the same District Magistrate no fresh declaration shall be necessary if‑ (a) the keeper of the press continues to be the same;, and (b) within twenty‑four hours of the change, the keeper of the press informs the District Magistrate in writing of the change.

7. The printer and the publisher of every newspaper shall appear in person or by agent authorised in this behalf in accord ance with the rules, before the District Magistrate within whose local jurisdiction such newspaper shall be printed or published, and shall make and subscribe, in duplicate, originals, a declara tion in Form B or in such other form as may be prescribed. 9. (1) . (2) . (3) Where a newspaper having been published is not published (ii) in the case of a weekly newspaper, for two weeks in a calender month, (iii) (iv) . . ((v) . (vi) the declaration made in respect of that newspaper shall become null and void, and the printer and the publisher shall make and subscribe a fresh declaration under section 7 before further printing or publishing the newspaper, and to every such fresh declaration the provisions of the two foregoing sub sections shall, without prejudice to the provisions of this subsection, apply. (5) 12. (1) Subject to the provisions of subsection (2), each of the duplicate originals of every declaration made and subscribed under section 7 shall be authenticated by the signature and official seal of the District Magistrate before whom the said declaration is made. (2) The District Magistrate shall not authenticate the declara tion unless he is satisfied that‑ (a) the proprietor of the newspaper if he himself is not the printer or the publisher has authorised the making of such declaration; (b) the title of the newspaper proposed to be published is not the same as the title of any newspaper already being published in the same language at any place in the Province not being a newspaper of different periodicity published by the same publisher or another edition of the same newspaper published from another place; (c) the printer or the publisher was not convicted of an offence involving moral turpitude within five years before the date of his making and subscribing a declaration under section 7; (d) the publisher has the financial resources required for regularly publishing the newspaper; (e) the editor possesses reasonable educational qualifications or has had adequate training or experience in journalism; and (f) the printer or publisher is a person about whom the Government is satisfied, on the basis of information in its possession, that he 1s not likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan. " Section 4, as amended by the West Pakistan Press and Publica tions (Amendment) Ordinance III of 1966. (1‑A) Every dedlaration made and subscribed under sub section (1), shall be authenticated under the signature and official seal of the District Magistrate before whom the said declaration is made. (1‑B) The District Magistrate shall not authenticate a declaration filed under subsection (1) unless he is satisfied that‑ (a) the title of the printing press proposed to be kept or operated is not the same as the title of any printing press already being operated at any place in the province; (b) the printer was not convicted of an offence involving moral turpitude within five years before the date of his making ‑.and subscribing the declaration. (1‑C) The District Magistrate shall refuse to authenticate the declaration of a printer about whom the Government is satisfied, on the basis of information in its possession and after giving such printer an opportunity of being heard, that he is likely to act is a manner prejudicial to the defence or external affairs or security of Pakistan or to use the press in respect of which the declaration is made for the purposes of incitement to the commission of any cognizable offence involving violence or for defamation. (1‑D) The District Magistrate shall, before passing an order under subsection .(1‑B) give an opportunity to the person .making the declaration, of being heard and of producing evidence to show that he has complied with all the requirements of that subsection. (1‑E) A printer whose declaration is not authenticated by the District Magistrate under subsection (1‑B), may make .a representation to Government against the order of the District Magistrate, and the Government may, on con sideration thereof, and after giving such printer an opportunity of being heard, modify, confirm or rescind the order of the ‑District Magistrate. (2) Section 12. as amended by the West Pakistan Press and Publi cations (Amendment) Ordinance XXI of 1964. "12. (1) Subject to the provisions of subsections (2) and (3) each of the duplicate originals of every declaration made and subscribed under section 7 shall be authenticated by the signature and official seal of the District Magistrate before whom the said declaration is made. (2) The District Magistrate shall not authenticate the declara 4ion unless he as satisfied that‑ (a). (b) (c) (d) (e) (3) The District Magistrate shall refuse to authenticate the declaration of a printer or publisher about whom the Government is satisfied on the basis of information in its possession, and after giving such printer or publisher an opportunity of being heard, that he is likely to act in a manner pre judicial to the defence or external affairs or security of Pakistan, or public order, or public safety in the Province of West Pakis tan, or to use the newspaper in respect of which the declaration is made for the purposes of incitement to the commission of any cognizable offence involving violence or for defamation. (4) The District Magistrate shall, before passing an order under subsection (2), give an opportunity to the person making the declaration, to be heard and to produce evidence to show that he has complied with all the requirements of that subsection. (5) A printer or a publisher whose declaration is not authenti cated by the District Magistrate under subsection (2) may maker a representation to Government against the order of the District Magistrate, and the Government may, on consideration thereof, and after giving such printer or publisher an opportunity of being beard, modify, confirm or rescind the order of the District Magistrate." Learned counsel for the petitioner surveyed the provisions of the Ordinance and contended that under section 12, as it stood prior to amendment, the printer and the publisher of every newspaper was under an obligation to appear in person or by agent authorized in this behalf in accordance with the rules before the District Magistrate within whose local jurisdiction such newspaper was to be printed or published and to make and subscribe in duplicate originals, a declaration in Form B for the purpose. Such a declaration if granted was to become null and void when a newspaper having been published was not published as laid down in subsection (3) of section

9. He argued that the keeper of a printing press was to make a declaration in the prescribed Form A, as envisaged under the provisions of section 4 (unamended) of the Ordinance and the procedure provided for authentication of the publisher's declaration and the considerations regulating such decision are contained in sub section (2) of section

12. It was contended that under clauses (a) to (e) of subsection (2) of this section it was the satisfaction of the District Magistrate that determines the matter and under clause (f ), it was the satisfaction of the Government on the basis of information in its possession that the publisher or printer was not likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan and it was after that satisfaction that the District Magistrate was to refuse the authentication of the declaration applied for. With the amendment in law, he argues, both the provisions of sections 4 and 12 have undergone a radical changes. Under the unamended section 4, there was no express provisions for giving a hearing to the keeper of a press either by the District Magistrate or the Government before deciding the question of authentication of a declaration in that regard. But now under subsections (1‑B) and (1‑C) of section 4, such provisions have been incorporated. In case of subsection. (I‑C), the satisfaction is that of the Government on the basis of information in its possession and after giving such printer an opportunity of being heard, that he is likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan etc. while under subsection (1‑B) the enquiry is by the District Magistrate under subsection (1‑D) and his order is subject to reconsideration by the Government under subsection (1‑E). Coming to section 12, as amended, he has invited our attention to the plain language of subsection (3) of section 12, which is materially different from sub‑clause (f) of section 12 (2) of the unamended section. He argues that by incorporating subsections (3), (4) and (5), the intention of the Legislature has been made clear that if the District Magistrate is not satisfied with regard to the matters included in sub‑clauses (a) to (e) of subsection (2) of section 12, the District Magistrate may refuse authentication and for that purpose the District Magistrate is under an obligation by virtue of the provisions of subsection (4) to give an opportunity to the person making a declaration to be heard and to produce evidence to show that he has complied with all the requirements of that section and the party feels aggrieved by the order made by the District Magistrate under subsection (2), a representation may be pre ferred by him to the Government against the said order and the Government may on consideration thereof and after giving such printer or publisher an opportunity of being heard, modify, confirm or rescind the order of the District Magistrate. Put differently, he argues, there are two opportunities granted to the applicant for declaration for purposes of subsection (2) firstly before the District Magistrate and secondly before the Provincial Government. It is contended that the position under subsection (3) is quite distinct. He scanned and analyzed the language of subsection (3) of section 12 for the purpose and argued that the principal clause in the subsection is the District Magistrate shall refuse to authenticate the declaration of a printer or publisher about whom the Government is satisfied that he is likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan, or public order, or public safety in the Province of West Pakistan, or to use the newspaper in respect of which the declaration is made for the purposes of incitement to the commission of any cognizable offence involving violence or for defamation' and the qualifying clause is `on the basis of information in its possession, and after giving such printer or publisher an opportunity of being beard.' He maintained that the satisfaction of the Government is based on the information in its possession and the hearing given to such printer or publisher. The forum of enquiry, according to him, is before the Provincial Government and not the District Magistrate, who has no option but to refuse authentication in such cases. It is contended that it is for that reason that in cases falling under subsection (3), no representation is provided for to the Provincial Government against the order of the District Magistrate refusing authentication whereas such a representation is available by way of relief against orders passed under subsection (2) of the said section. It was lastly contended that in view of the dictum of their Lordships of the Supreme Court in Sh. Abdur Rahman v. The Collector and Deputy Commissioner, Bahawalnagar and 13 others (P L D 1964 SC 461), the principles of natural justice are to be read in every enactment in the absence of a provision to the contrary, when a decision is to be taken objectively and that satisfaction of the Government cannot be in any manner otherwise than by giving the petitioner an oppor tunity of being heard and as such the impugned order merits quashing because the petitioner has not been given any opportu nity of being heard by the Provincial Government, which was the proper authority in the case and the refusal of the District Magistrate is violative of the provisions of section 12(3) of the Ordinance.

4. On behalf of the Provincial Government, it has been argued by the learned Additional Advocate‑General that the writ petition is incompetent for the reason that the two declarations, namely, the Publisher's declaration and the Printer's declaration, bad been filed by two separate persons, namely, the petitioner and the Zamana Press, and as both the two declarations are inter‑dependent and the Zamana Press has not approached this Court nor has it been made a party to the present proceedings, the writ petition should be dismissed as improperly constituted. We, however, find that the objection is not well‑founded. It is conceded by the Government that no decision has so far been taken on the Printer's declaration Form (B) and as we are concerned in the present proceedings only with the Publisher's declaration, absence of the printer does not render the writ petition defective.

5. It was next contended by the Additional Advocate- General that although the first order made by the District Magistrate on the 11th of October 1967 refusing authentication does not give any indication, it had as a matter of fact been passed under subsection (3) of section 12 and the reference to subsection (2)(f) of section 12 of the Ordinance in the communi cation of the District Magistrate, dated the 12th of September 1967 was erroneous. However, we find that in asking the petitioner to appear before the District Magistrate for a hearing in the case the Provincial Government allowed the representation of the petitioner, dated the 5th of February 1968, against the said order and the same is no longer in the field. The learned Additional Advocate‑General next argued that hearing as required under the law has been given to the petitioner b5 the District Magistrate and the impugned order cannot be treated as lacking in jurisdiction or otherwise violative of provisions of section 12 (3) of the Ordinance. The learned Additional Advocate‑General wanted us to read subsection (3) in the follow ing manner:‑ "The District Magistrate shall refuse to authenticate the declaration of a printer or publisher and after giving such printer or publisher an opportunity of being heard that he is likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan etc., about whom the Government is satisfied on the basis of information in its possession." When it was pointed out to him that this will be distorting the language of the section and even it will not make grammatically a correct sentence, he had no satisfactory reply to give. We have given anxious consideration to the various provisions of the law on the subject reproduced above. We have also referred to the provisions of section 12 of the Press and Publications Ordinance (XV of 1960), since repealed, because section 12 of the 1963 Ordinance is a reproduction of section 12 of Ordinance XV of 1960 amendment in law in 1964, the Government has made an express departure from the position obtaining prior to the said amend ment. Under the unamended section 12, there was no express right of hearing before the District Magistrate with regard to clauses (a) to (f). It was only the satisfaction of the District Magistrate with regard to clauses (a) to (e) and with regard to clause (f) his satisfaction was to rest on the satisfaction of the Government on the basis of information in its pos session and it remained a moot point whether it was subjective or objective satisfaction. The question of satisfaction of the District Magistrate arose in Muhammad Zafar v. The District Magistrate, Multan (P L D 1961 Lah. 689) which was a case under section 12 of Ordinance XV of 1960, which provision as already stated is pari mareria with the unamended section 12 of Ordinance, 1963, and the learned Judges while considering the question of satisfaction of the District Magistrate observed that the District Magistrate was the sole Judge of the existence of facts mentioned in clauses (a) to (e) and he was to apply his own mind in coming to a decision with regard to the existence of material referred to in the clauses and the burden of proving that the District Magistrate was not so satisfied while passing the order lay on the applicant. It was further observed that under clause (f) of subsection (2) of section 12 the satisfaction mentioned was that of the Provincial Government. With regard to the question whether an order refusing to authenticate will be invalid, in the absence of oppor tunity to the applicant to show cause against the existence of matter referred to in subsection (2), the learned Judges did not consider it necessary to decide the question in the said case because the learned Judges found that the petitioner had ample opportunity to represent his case to the District Magistrate. In another case reported as Ghulam Muhammad v. District Magist rate, Karachi (P L D 1962 Kar. 537), which again related to Act XV of 1960, it was held that "in the order itself there was no reference to any of the sub‑clauses (a) to (f) of section 12 (2) so that it is impossible to know from the order itself as to the ground upon which the refusal of the District Magistrate was based. Such an order, in our opinion. is per se bad. Refusal to authenticate a declaration has the effect of putting a current newspaper or journal out of circulation or stopping the coming out of a newspaper or journal. We need hardly emphasise that an action of this nature should not be taken lightly as it is calculated to affect a very important right of expression. This right, of course, is to be exercised within the bounds of law, but when the Ordinance in question itself lays down the grounds upon which the authentication may be refused it is imperative that the order should give an indication of the ground, if not the reason thereof, for the refusal". These two decisions, as already stated above, pertain to the 1960 legislation. Learned counsel for the parties have stated that the instant case is the case of first incidence under the present legislation and, therefore, a decision has to be made on the language of the amended law itself. We find that in view of the amendment in section 12, there is no escape from the conclusion that the District Magistrate when considering a publisher or printer's declaration form under clauses (a) to (e) of subsection (2) of section 12 is bound to give an opportunity to the person making the declaration to be heard and to produce evidence to show that he has complied with all the requirements of the law, by virtue of subsection (4) of section 12 and if the decision is adverse to such an applicant he has been given a further right to claim relief by way of representation before the Provincial Government and such a representation is again to be disposed of after consideration and after giving an opportunity to the printer or publisher of being heard. In other words, the decision of the District Magistrate under subsection (2) is dependent upon enquiry and opportunity of being heard before him and it is subject to right of representation which represen tation itself has to be disposed of after a regular enquiry and not in violation of the principles of natural justice, which have been expressly incorporated in subsections (4) and (5)of section

12. Reverting to subsection (3), the position is quite different. Here the satisfaction of the Provincial Government comes in and not of the District Magistrate and the satisfaction of the Government is based on information in its possession and after affording an opportunity of being heard to such a publisher or a printer. Put differently the forum of enquiry and bearing is before the Provincial Government and the District Magistrate has no alternative but to honour the decision taken by the Provincial Government. The argument of the learned Additional Advocate General that after satisfaction of the Government, the District Magistrate could take a different view after hearing the applicant and could remit the case to the Provincial Government for recon sideration merely means a mental exercise in futility because once the Government has been satisfied any enquiry before the District Magistrate will not alter the decision taken by the Provincial' Government at a higher level and it is for this reason that no right of representation has been granted against refusal of authentication under subsection (3) of section 12 by the District Magistrate. We find force in the argument of learned counsel for the petitioner, when he says that the petitioner has been condemned unheard in the case because the Provincial Government has not given him an opportunity to satisfy the Government that the allegations of his acting in a manner prejudicial to the security of Pakistan are not justified and the orders passed by the District Magistrate, Quetta, in no manner comply with the mandatory provisions of law contained in subsection (3) of' section

12. This contention further finds support from the recent amendment of section 4 of the Ordinance reproduced above, wherein also refusal of authentication of declaration of the keeper of a press has been made subject to enquiry by the District Magistrate and representation to the Provincial Government in case the decision is taken under section 4(1‑B), but no representation has been provided for when decision is taken by the District Magistrate under subsection (1‑C) and in such a case the satisfaction is that of the Government on the basis of information in its possession and after giving such printer or publisher an opportunity of being heard that he is likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan, etc. As regards mala fide no convincing evidence is available on the record to hold that the statutory functionaries have been passing the orders against the petitioner because of malice.

6. For the reasons given above we hold that as the authen tication of the petitioner's Declaration Form for publishing the Journal in question has been refused under subsection (3) of section 12 of the Ordinance, as amended, the petitioner was entitled to hearing before the Provincial Government, as envisaged in that subsection and because no such opportunity has been given to him by the Provincial Government, the impugned order stands vitiated and is of no legal effect. We set aside the same and direct the Provincial Government to consider the Publisher's declaration forms, filed by him under section 7 of the Ordinance, afresh in accordance with law, as the same will be deemed to be still pending with the Provincial Government. However, in the circumstances of the case, the parties are left to bear their own costs. K. B. A. Petition accepted.