P L D 1962 (W (PLP)

A. S. FARUQUI, J.‑The writ petition is directed against the refusal of the District Magistrate, Karachi to authenticate the declaration of the petitioners which was made by them under section 7 of Press and Publication Ordinance 1960 (Ordinance XV of 1960).

2. The petitioner No. 1 is the proprietor and the petitioner No. 2 is the printer and publisher of a monthly journal " Chiragh- e‑Rah " which is published from 23 Stretchen Road, Karachi. On the 25th of January 1961, the petitioner No. 2 filed his declaration as required by section 7 of the Ordinance in the prescribed form. It is the case of the petitioners that after the filing of this declaration the petitioner No. 2 along with the editor of the said journal called at the office of the District Magistrate several times and ultimately succeeded in personally meeting the then District Magistrate, Karachi, Mr. Mukhtar Masud, and he informed them that he had already authenticated the declaration and they should contact the office and sign the same. The petitioner No. 2 thereafter contacted the office of the District Magistrate and was again told that the sanction had been accorded and that he should call again for signing the declaration in presence of the Additional District Magistrate. Later on, the petitioner No. 2 was informed that the matter was again being considered. In the meantime, Mr. Mukhtar Masud was trans ferred from Karachi and was succeeded by Mr. Munir Husain who passed an order on 9‑5‑61 which reads as follows :‑ " The declaration has been scrutinized and the report of the C. I. D. had also been studied. The declaration is rejected under section 12 (2) of the Press and Publication Ordinance, 1960." This was communicated to the petitioners forthwith by means of a letter from the office of the District Magistrate which gave the substance of the order. On the 1st of June 1961 the present writ petition was filed.

3. Notice having been issued to the District Magistrate who was the only respondent in the case a counter‑affidavit was filed by one Mr. S. I. Bokhari who is described as a press clerk of the office of the District Magistrate, Karachi. In this affidavit it has been stated that the declaration in respect of the journal " Chirag‑e‑Rah " was " duly considered by the District Magistrate and was rejected under clause (f) of section 12 (2) of the Press and Publication Ordinance as he was fully satisfied on the basis of the Information received from the Home Secretary and the report of the C. I. D that the applicant was not a fit person in terms of the said provision of law to be granted the declaration". In para. 3 of the counter‑affidavit it was stated that Mr. Mukhtar Masud had kept the matter pending for consideration but had not actually authenticated the declaration before he left charge as the District Magistrate, Karachi and, therefore, the matter had to be dealt with and disposed of by his successor. Section 12 of the Ordinance deals with the authenti cation of the declaration made under section

7. It is necessary to reproduce the whole of section 12, because from the file of the case which was produced by the counsel for the State before us, it appears that the authorities concerned do not fully realise the limits of the grounds upon which the authentication may be refused and a tendency is exhibited to travel beyond the scope of these provisions :‑ "

12. Authentication of the declaration.‑(1) Subject to the provisions of subsection (2), each of the triplicate 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 declaration unless he is satisfied that‑ (a) the proprietor of the newspaper if he himself is not the printer or the publisher has authorized 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 same 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 is not likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan."

4. In view of the definite allegation made in the petition that Mr. Mukhtar Masud, the previous D. M., had informed the petitioners about the authentication of the declaration and the denial thereof in the counter‑affidavit, it becomes necessary to refer to the file of the case which was produced before us by the counsel for the State. In the file we find that the following order was passed by Mr. Mukhtar Masud on 22‑3‑61. "The editor fulfils the basic qualification. Financial position is also satisfactory. Police report states that the editor and publisher have not come to the adverse notice of their depart ment. May authenticate. (Sd.) MUKHTAR MASUD, 22‑3‑61 ". Then there appears a note in the margin by Mr. Mukhtar Masud which is dated 27‑3‑61 and which reads as follows: " It has not yet been issued. Keep it pending in view of Home Secretary's telephone about Family Laws Ordinance." It would, therefore, appear that the statement in the counter affidavit is not quite accurate.

5. It would be noticed that the order dated 9‑5‑61 whereby the declaration was rejected, which would mean that it was not authenticated, there is no reference to any sub‑clause of section 12 (2). However, when the counter‑affidavit came to be filed and this was done on 19‑2‑62 it was stated that the rejection was with reference to clause (f) of section 12 (2). This clause relates only to matters prejudicial to the defence or external affairs or security of Pakistan. It has been asserted in the rejoinder affidavit of the petitioners that reference to clause (f) was made because of a judgment of this Court delivered on 9‑1‑62 in Writ Petition No. 247 of 1961 whereby a writ of mandamus was issued on the refusal of the District Magistrate to authenticate the declara tion filed in the case of two other papers, namely "Sandesh" and " Musalman ". Be that as it may, the fact remains 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. The refusal to athenticate a declaration has the effect of putting a current newspaper or journal out of circulation or stopping the coming out of a new paper 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 namely, the right of expression. This right has, of course, 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. For instance, if the authentica tion is refused, say on the ground of the printer or the publisher having been convicted of an offence Involving moral turpitude, which subject is covered by sub‑clause (c) and if this fact appears in the order itself, it may be possible for the printer or the publisher to represent that there had been a mistake. They might show that they in fact were not convicted of any such offence or that the conviction had taken place more than 5 years before the making of the declaration. This right is implicit from the nature of the provisions relating to authentication and to deprive the printer and the publisher of making such a representa tion by the omission of the ground of refusal or the relevant sub‑clause of the section would amount to a disregard of the provision under which the District Magistrate is authorised to act.

6. What we have said above, really concludes the matter because of the absence in the Impugned order of any indication of the ground upon which the refusal in this case was made. We have, however, looked into the file to see if there was any material before the District Magistrate to justify the application of sub‑clause (f), because reference to it was made in the counter affidavit. We have not found any. Apart from the telephonic message of the Home Secretary, about which a note was made by Mr. Mukhtar Masud, there is a report of the S. P., C. I. D. Karachi dated 13‑4‑61 which was sent upon an inquiry by the A. D. M. by his letter dated 5th April 1961. Neither the tele phonic message nor this report of the Superintendent of Police have any bearing on the ground contained In sub‑clause (f) of section 12 (2). Mr. Saeed A. Shaikh, the learned counsel appearing for the District Magistrate, had to concede this position.

7. For the reasons given above we quash the order of the District Magistrate dated 9‑5‑61 whereby the authentication was refused, the result of which would be that the order passed by Mr. Mukhtar Masud on 22‑3‑60, which has been reproduced above holds the field, and must be given effect to. We order accordingly. In the result the writ petition is allowed in the terms stated above, with costs. K. B. A. Petition accepted.