2005 PLP 880 (CLC)

The essential facts and the contentions have been noted in the order, dated 13-10-2004. On C.M. No.1 of 2004 it was directed that the licence of the petitioner shall not be cancelled but it shall not re-broadcast any programme of Urdu Service of the BBC.

2. In the report and parawise comments submitted on behalf of respondent No.1 a number of preliminary objections have been taken including that despite a specific direction not to re-broadcast any programme of the BBC Urdu Service petitioner No.5, the Company, continued to re-broadcast the BBC Urdu Service particularly on 19th and 21st of October, 2004. He had the recorded cassettes with him in support of his objection which he offered to display in the Court.

3. When confronted, the learned counsel for the petitioners submitted that according to a news which appeared in the Dawn, Internet Edition of 14th October, 2004 this Court had allowed to broadcast BBC Urdu Service Programme. He further submitted that the order was not announced in the open Court and a copy of which was supplied on 19th October, 2004 but thereafter some news were broadcast without the identity of the source. He however, tendered unqualified apology on behalf of the petitioners saying that it was not intentional. He also made submissions on the merits of the controversy and contended that the fundamental right of petitioner No.5 (the company) guaranteed by Article 18 of the Constitution was violated by prohibiting broadcast of the BBC of Urdu Service. Plea of discrimination was reiterated. Provisions of section 19(3) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was attacked on the ground that it vests unguided powers in the Authority to prescribe terms and conditions of a licence which was ex facie discriminatory as it was capable of being abused.

4. The learned counsel for respondent No.1 contended that fundamental right No.18 was subject to such qualifications as may be prescribed by law and that regulation of any trade or profession by a licensing system has specifically been protected. It was also explained that under section 25 of the aforesaid Ordinance, no licence can be granted to a person who is not a citizen of Pakistan, a foreign company, or a company the majority of whose shares are owned or controlled by foreign nationals or companies whose management or control is vested in foreign nationals or companies. According to him, re-broadcasting the BBC Urdu Service amounts to circumvention of the said provision. It was explained that the Authority had restrained not only petitioner No.5 but all local area community F.M. Radio broadcasters under its licensing regime from broadcasting or re-broadcasting not only the BBC Urdu Service but all foreign broadcasts. It was further explained that BBC Urdu Service was available to the listeners of Pakistan on medium wave and short wave frequencies which, according to section 37 of the aforesaid Ordinance continue to be regulated by the Pakistan Broadcasting Corporation Act, 1973.

5. Mr. Danishwar Malik, learned Deputy Attorney General, has appeared in response to the notice under Order 27-A of the Code of Civil Procedure. He submits that a writ petition is not maintainable against a show-cause notice. He referred to the undertaking of the petitioner-Company according to which the petitioner-Company could not broadcast the programme of the Urdu Service of the BBC.

6. The order in this case was dictated in the chamber on 13-10-2004 and the result was conveyed to the Reader for information of the petitioners or their learned counsel. In any case it was improper on the part of the petitioner-Company to continue broadcasting BBC Urdu Service without seeing the order, only on the basis of a report of the Dawn Internet Edition which is not factually correct, and even after 19th of October, 2004, the broadcast from the material of BBC Urdu Service continued as stated by the learned counsel for the petitioners which amounted to frustrating the prohibitory order of this Court. Even if there is a complaint of violation of fundamental right of petitioner No.5 it could not act contrary to the order of this Court dated 13-10-2004. The question whether any of the fundamental rights of the petitioners was violated had yet to be determined. Thus, the conduct of the petitioners disentitles them to be heard in discretionary jurisdiction of this Court. Accordingly, this petition is dismissed on this short ground. Therefore, examination of the contentions of the learned counsel of the parties as to the merits of the controversy is not considered necessary. In view of the unqualified apology of the petitioners, I am not inclined to proceed against them in contempt jurisdiction. The Editor, Dawn Internet Edition may, however, be called upon to explain his conduct of incorrect reporting of the orders, dated 13-10-2004 of this Court. H.B.T./M-946/L Petition dismissed.