P L D 1975 Lahore 1198 (PLP)

(a) Press and Publications Ordinance (XV of 1960)‑ ‑

S. 12 read with Constitution of Pakistan (1973), Art. 19‑Freedom of Press

Authentication of Declaration

Concept of freedom of expression‑Implies freedom to.‑‑say and publish what every citizen wants as long as rights of others not trampled upon‑Freedom to publish what one pleases, if made impossible by statutory authority by refusing to bring out a newspaper, by which means alone he could voice his thoughts‑Could become a mockery and delusory. The concept of freedom of expression would imply that every citizen is free to say or publish what he wants, provided that he does not trample upon the rights of others and this freedom could become a mockery and delusory if while every man was at liberty to publish what he pleased, this was made impossible by a statutory authority merely by refusing permission to bring out a newspaper, through which means alone he could print and publish his thoughts. Blackstone's Commentary, Vol. IV, pp. 151‑152 ref. (b) Press and Publications Ordinance (XV of 1960)‑ ‑‑ S. 12(2)(d)‑Declaration, refusal to authenticate‑Intention under lying S. 12(2)(d)‑To allow publication of such newspapers only as will be published regularly. and to disallow their coming out merely for blackmailing etc., i.e., ta‑avoid growth of yellow journalism‑Provision of S. 12(2)(d) being in interest of "public order"

Not per. se violative of right of freedom of press ‑Constitution of Pakistan (1973), Art.

19. The intention underlying the provision of section 12 (2) (d) of Ordinance (XV of 1960) appears to be that only such newspapers should be allowed to be published which will be `published regularly' and that such newspapers should not be published which come out merely for the purpose of blackmailing etc. and that the growth of yellow journalism should be avoided. This, provision being in the interest of "public order" does not appear to be, per se violative of the fundamental right of freedom of the press guaranteed by the Constitution. (c) Press and Publications Ordinance (XV of 1960)‑ S. 12(2)(d)‑Declaration, authentication of‑Imposition of condition, subsequent to authentication of declaration, to show cash deposit of Rupees one lac in a Bank in name of proposed newspaper and to utilise same only for running newspaper‑Neither reasonable nor in accord with statute‑Persons could succeed in enterprizes by help of friends, associates, and Banks Statutory requirement confined to publisher having merely financial resources ‑ Words "financial resources"‑

Not synony ous with "cash deposit" but connote cap ability to run enterprise y basis of possibility of support from finan cial quarters

Production of bank certificate

Sufficient to show capability of raising amount mentioned as and when desired and fulfils requirements of S. 12(2)(d). The condition imposed by the District Magistrate, to the authentication of a declaration to the effect that every newspaper should show a cash deposit of rupees one lac and that the above amount should be deposited in a bank in the name of the proposed newspaper, to be utilized only for running the newspaper or periodical concerned, does not appear to be "reasonable". A restriction of this kind can prevent even a most highly qualified person, possessing talent, initiative, intelligence, resourcefulness, journalistic expe rience and managerial know‑how from bringing out a newspaper only because he cannot produce a cash deposit of rupees one lac in the bank, in the name of the newspaper he is desirous of taking out. The unreasonableness of this restriction is evident from the fact that such a person could make his enterprise a success by the help of his friends, associates and banks but on account of a rigid and arbitrary condition this venture can be frustrated and his desire to publish his thoughts prevented. Further more, such a condition is not even in accord with the terms of the statute. The relevant provision of the statute requires that the publisher should have the financial resources for regularly publishing the newspaper. The District Magistrate has interpreted the words "financial resources" to be synonymous with "cash deposit", although this is not the true import of the said words. As well known, the word "financial" is used in connection with money matters in general and indicates something which is beyond and besides cash, coin or actual bank deposit. In the budget, for instance, the expression "finances" is used in the sense not only of cash resources but loans advances and grants. So far as the term "resources" is concerned, according to the Chamber's Twentieth Century Dictionary it means "a source or possibility of help; an expedient; (pl.) means of raising money; means of support; means of occupying or amusing oneself." Placing the terms "financial", and "resources" in juxtaposition, the upshot is that "financial resources" connote the capability of a person to run an enterprise on the basis of accepted or possibility of support from quarters dealing in finances. The production of a bank certificate by the petitioner, therefore, meant that he had the capability of raising the amounts indicated as and when required. Con sequently, by the production of the bank certificate the petitioner fulfilled the requirements of "financial resources" as contained in section 12(2)(d) of the Press and Publications Ordinance. that period been refused permission by Government to start such publication. Government may, however, intimate much earlier than the period of six weeks their agreement or refusal to the starting of the newspaper. Refusal to allow the newspaper to start shall be based on the following grounds :‑ (a) that the Publisher or the Editor was convicted less than five years ago of an offence involving moral turpitude ; (b) that the Publisher has not the financial resources at his disposal to bring out the proposed newspaper ; or (c) that the Editor did not possess the requisite academic qualifications; (d) that the Printer, Publisher or Editor is a person about whom the Government is satisfied on the basis of information in its possession that he is likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan.

26. Refusal of permission to start a newspaper shall be made only by the Central or Provincial Government who, in case the refusal is based on clause (d) above, shall record that they have shown the information on which the refusal is based to a High Court Judge who has agreed that the information was sufficient to warrant such refusal.

27. In regard to educational qualifications, we consider that these should be prescribed for Editors which should be as follows :‑ (a) a diploma in journalism from a recognized University ; or (b) a decree of a recognised University or a similar qualification in oriental learning for language papers only ; and (c) experience in a newspaper office for a period of not less than five years.

28. In regard to criteria of adequacy of financial resources we think that these should be determined on the assumption that a newspaper would need at least six months to establish itself. It should have enough resources to meet expenditure during this period. On the basis of data available to us a rough estimate of this expenditure would be as follows :‑ In the case of‑ English dailies, Rs. 1,00,000, Language dailies, Rs. 50,000, English Evening dailies, Rs. 50,000, Language Evening Dailies, Rs. 25,000, Weeklies (English), Rs. 20,000 Weeklies (Language), Rs. 10,000, Fortnightlies, and Monthlies (English), Rs. 8,000 and Monthlies and Fortnightlies (Language), Rs. 6,

000. This will be over and above the amount which may be required for the purchase of printing presses, if any.

29. The amount referred to above for newspapers and periodicals shall be deposited in‑ a bank in the name of the proposed newspaper or periodical to be utilised only for running the newspaper or periodical concerned. A certificate from the Bank concerned shall be produced in proof of compliance with this condition.

4. The Press and Publications Ordinance,‑ 1960 (Central Ordinance XV of 1960) was promulgated in 1960. In its application to West Pakistan this was amended by the Press and Publications (West Pakistan) (Amendment) Ordinance, 1963 (Ordinance XXVII of 1963). The amending Ordinance, however, made no amendment in the provisions of the law, which call for consideration in this case. Section 7 of the Ordinance lays down as under :‑ "The printer and the publisher of every newspaper shall appear in person or by agent authorised in this behalf in accordance 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 declaration in Form B or in such other form as may be prescribed." Section 12 which deals with the authentication of declarations, lays down "Authentication of the declaration (1) subject to the provision of subsection; (2) . . . . . every declaration made under section 7 shall be authenticated. . : . . (b) the title of the newspaper proposed to be published is not the same as the title of any newspaper already being published . . . . (c) the printer or publisher was not convicted of an offence involving moral turpitude . . . . . . . . . (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, (f) the printer or publisher is a person about whom the Government is satisfied on the basis of the information in its possession that he is not likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan." A perusal of the above provisions shows that the recommendations of the Press Commission to the effect that declaration may be refused on the ground of lack of financial resources of the proposed newspaper have been accepted. However, the criteria to determine the adequacy of the "financial resources" has not been incorporated in the statute itself, but this has been left to the discretion of the District Magistrate. The questions arising in this case are whether the provisions of section 12 incorporating the above restriction to the freedom of citizens to bring out newspapers is valid and if so whether the power given to the learned D. M. in this respect has been properly exercised ?

5. Article 19 of the Constitution of 1973 lays down that "every citizen shall have the right to freedom of speech and expression, and there shill be freedom of the press, subject to any reasonable restrictions imposed by law . . . ." Thus the freedom of the Press has been guaranteed by the Constitution subject to any reasonable restrictions imposed by law.

6. In the earlier Constitutions of 1956 and 1962 freedom of the press was not specifically guaranteed because it was considered that this was included in the concept of the freedom of expression. The concept of freedom of expression would imply that every citizen is free to say or publish what he wants, provided that he does not trample upon the rights of others and this freedom could become a mockery and delusory if while every man was at liberty to publish what he pleased, this was made impossible by a statutory authority merely by refining permission to bring cut a newspaper, through which means alone he could print and publish his thoughts. According to Blackstone "the liberty of the press is indeed essential to the nature of a free state ; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published, Every free man has an undoubted right to lay, what sentiments he pleases before the public ; to forbid this, is to destroy the freedom of the press ; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity" (4 Blackstone's Commentary, 151‑152). The Constitutional guarantee of liberty of the press is one of the strongest bulwarks of liberty and any order which violates the freedom of the press would be unconstitutional and void. However, our Constitution allows "reasonable restrictions" to be imposed on the right to freedom of speech and expression by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency of morality, or in relation to contempt of Court, defamation or incitement to an offence. The question, therefore, is whether subsection 2(d) of section 12 of the Ordinance, which permits the District Magistrate to refuse to authenticate a declaration and thereby throttle at its very conception, a citizen's design to print and publish a newspaper, is compatible with the above Constitutional provision ?

7. The validity of the provision of law presently under consideration (subsection (2)(d) of section 12) is presumably referable to restrictions that can be imposed in the interest of "public order". The intention underlying the said provision appears to be that only such newspapers should be allowed to be published which will be 'published regularly' and that such newspapers should not be published which come out merely for the purpose of blackmailing etc. and that the growth of yellow journalism should be avoided. This is borne out by the observations made by the Press Commission, while recommending the incorporation of a provision similar to the one made in clause (d) of subsection (2) of section

12. This provision being in the interest of "public order" does not appear to be, per se violative of the fundamental right of freedom of the press guaranteed by the Constitution.

8. However, the condition imposed by the respondent, to the, authentication of the declaration to the effect that every newspaper should show a cash deposit of rupees one lac and that the above amount should be deposited in a bank in the name of the proposed newspaper, to bed utilized only for running the newspaper or periodical concerned, does not appear to be "reasonable". A restriction of this kind can prevent even a most highly qualified person, possessing talent, initiative, intelligence, resourcefulness, journalistic experience and managerial know‑how froth bringing out a newspaper only because he cannot produce a cash deposit of rupees one lac in the bank, in the name of the newspaper he is desirous of l taking out. The unreasonableness of this restriction is evident from the fact that such a person could make his enterprise a success by the help of his friends, associates and banks but on account of a rigid and arbitrary condition this venture can be frustrated and his desire to publish his thoughts prevented

9. Furthermore, such a condition is not even in accord with the terms of the statute. The relevant provision of the statute requires that the publishers should have the financial resources for regularly publishing the newspaper. The respondent has interpreted the words `financial resources to be l synonymous with "cash deposit", although this is not the true import of the said words. As is well known, the word "financial" is used in connection with money matters in general and indicates something which is beyond and besides cash, coin or actual bank deposit. In the budget, for instance, the expression "finances" is used in the sense not only of cash resources butt loans, advances and grants.

10. So far as the term "resources" is concerned, according to the Chamber's Twentieth Century Dictionary it means "a source or possibility of help ; an expedient ; (pl.) means of raising money : means of support means of occupying or amusing oneself." Placing the terms "financial" and "resources" in juxtaposition, the upshot is that "financial resources" connote the capability of a person to run an enterprise on the basis of accepted or possibility of support from quarters dealing in finances. The production of a bank certificate by the petitioner, therefore, meant that he had the capability of raising five lacs of rupees as and when required. Consequently, by the production of the bank certificate the petitioner fulfilled the requirements of "financial r0ources" as contained in section 12(2)(d) of the Press and Publications Ordinance.

11. It may also be pointed out that the learned counsel for the respondent were asked to state whether there was any other case wherein a deposit of rupees one lac had been asked and secured, in the light of the Press Commission's Report, by the District Magistrate before authenticating the declaration of a newspaper. Counsel for the District Magistrate were unable to cite any such instance. The allegation that the petitioner was singled out for discriminatory treatment has accordingly some basis.

12. Since the petitioner fulfils all the other conditions of the law, therefore, his declaration is entitled to be authenticated. The impugned order is found to be without lawful authority and declared to be of no legal effect. The respondent is directed to act in accordance with law and authenticate the declaration of the petitioner without any further delay. This Writ Petition accordingly succeeds and is accepted. The parties, however, are left to bear their own costs. S. A. A. Petition accepted.