P L D 1975 Lahore 859 (PLP)

The petitioners in this case are Dr. Ijaz Hassan Qureshi and Alta$ Hassan Qureshi. They are aggrieved by an order of the Districts Magistrate. Lahore, dated 9th of January 1974, whereby he annulled their declarations as Printers and Publishers of Weekly "Zindgi" on the ground that the declarations bad become null and void under clause (ii) of sub. section (3) of section 9 of the West Pakistan Press and Publications Ordi nance, 1563 (hereinafter called the Ordinance).

2. Before I deal with factual and legal contentions raised in this case, it is necessary to refer to the relevant provisions of the Ordinance. The object of the Jaw is to keep control over the printing presses and the matter printed therein. Its scheme has been so framed that in case a particular writing transgresses the limits of law, the Printer and Publisher thereof could: be identified and punished. It has been provided in section 4 of the Ordinance that a keeper of a press has to file a declaration in Form `A'. The Publisher and Printer of a newspaper has also to file a declaration under section 7 of the Ordinance. The District Magistrate has the discretion to refuse to authenticate declarations filed under sections 4 and 7: A newspaper in respect of which there is no valid declaration under section 7 will be an. unauthorised newspaper according to clause (p) of section 2 of the Ordinance. An undeclared press where an unauthorised newspaper is published is liable to forfeiture under subsection (3) of section

38. A declaration filed under section 4 may be annulled by the Government if the press in spite of & previous warning and after the lapse of a period of suspension specified under subsection (3) of section 23, resorts to publishing objectionable matter.

3. The powers of annulment of declarations filed under section 7 can be exercised under sections 9, 10 and

11. Section 9 deals with the effect of non publication of newspapers after a declaration made under section 7 has been authenticated. If a newspaper in respect of which a declaration has been made under section 7 is not published within three months of the date on which such declaration was authenticated, the declaration shall become null and void. Under clause (it) of subsection (3) of section 9 which has been, invoked for passing the impugned order, a declaration of a weekly shall become null and void if it is not published for two weeks in a calendar month. According to section 10, a declaration filed under section 7 shall become null and void if after the authentication of the declaration there is a change in the language of the newspaper, its periodicity or place of publication. Section 11 deals with a situation where a Printer or a Publisher leaves Pakistan, but if then period of absence is not more than three months and the District Magistrate has been intimated of the fact of the absence of the Publisher or Printer, the annulment shall not take place.

4. Section 16 deals with what are called declarations of cessation.. It requires that where a Printer or a Publisher ceases to continue as such, he shall file a ceasing declaration in Form 'C' before the District Magistrate' in person or by an authorised agent.

5. Now coming to the facts of this case it may be mentioned that origi nally the Printer and Publisher of the Weekly "Zindgi" was one Mr. Mustafa Sadiq. He filed a declaration indicating that ha had ceased to be a Printer of the above Weekly and in his place Mr. Altaf Hassan Qureshi filed a printer's declaration. This was authenticated on 20th of August 1969. Mr. Mustafa Sadiq later on, fled a ceasing declaration in respect of his status as a Publisher of the Weekly "Zindgi" and in his place Ijaz Hassan Qureshi filed a fresh Publisher's declaration which was duly authenticated by the District: Magistrate on 3rd of November 1969. It appears that a little more than a month after the authentication of this latter declaration, Altaf Hassan Qureshi intimated to the District Magistrate on 17th of December 1969, that he had ceased to be the keeper of the "Urdu Digest Printer's Press" where Weekly "Zindgi" was being published. Ijaz Hassan Qureshi filed a declaration under section 4 of the Ordinance as a keeper of the Press on 20th of December 1969, which was authenticated on 25th of May 1970. Since January 1970 the name of Ijaz Hassan Qureshi was being published as Publisher and Printer of the Weekly "Zindgi" without any objection from any official quarters. The Printer's declaration subscribed by Altaf Hassan Qureshi was never formally withdrawn.

6. The paper had to stop its publication because of an order passed by the District Magistrate on 25th of July 1972, declaring that the declara tions filed under section 7 had become null and void. The petitioners approached the High Court and a Division Bench of this Court vide order dated 22nd of June 1973, passed in Letters Patent Appeal No. 148 of 1972. declared the order of the District Magistrate to be illegal. It appears from. the official file that the matter had attracted the notice of the Directorate of Information in April 1972 and on 29th of April 1972, a letter was addressed to the District Magistrate enquiring whether a Printer's declaration had been authenticated in the name of Dr. Ijaz Hassan Qureshi. The reply of the District Magistrate was sent about eighteen months after this query on 17th of October 1973, stating that Ijaz Hassan Qureshi had not filed a Printer's. declaration. The matter was thereafter referred to the District Magistrate who issued separate notices to Ijaz Hassan Qureshi and Altaf Hassan Qureshi on 24th of December 1973 vide Annexures R/2 and R/3 respectively. The notices said that the Weekly "Zindgi was being published without a valid Printer's declaration and both Ijaz Hassan Qureshi and Altaf Hasan Qureshi were asked to explain why the declarations standing in their names be not cancelled. It appears from the reply of Ijaz Hassan Qureshi dated 28th of December 1973 to the show‑cause notice issued to him, that he started acting as Printer of the paper after filing a declaration as a keeper of the press and during the long period of about four years the Government had treated him as a lawful Printer and Publisher of the Weekly "Zindgi". He claimed that he had filed a declaration under section 7 of the Ordinance. Altaf Hassan Qureshi in his reply relied upon what Ijaz Hassan Qureshi had written to the District Magistrate and offered to render further explanation if there was any doubt. The District Magistrate after hearing the parties passed a detailed order on 2nd of January, 1974, copy Annexure R/5. He observed that the keeper of the "Urdu Digest Printer's Press" where the Weekly "Zindgi" was being published, had not filed a Printer's declaration as requited under section 7 of the Ordinance and the publication of the paper was unauthorised in the light of the provisions of section

3. He further observed that Altaf Hassan Qureshi, who was declared Printer of the paper had ceased to be the keeper of the press and as his name bad not appeared as Printer since 5th of January 1970, the declaration filed by him had become null and void under clause (ii) of subsection (3) of section

9. The District Magistrate proceeded to hold that the Printer's and Publisher's declaration in respect of the Weekly "Zindgi" had become null and void and that the paper could not be printed and published without fresh declaration under section 7 of the Ordinance.

7. The petitioners had maintained that the order of the District Magistrate was one of the series of mala fide acts committed against them by the Government and its functionaries, in view of the fact that they had been freely criticising the Government. In this context, they relied on their prosecution and conviction by a Martial Law Tribunal and the orders passed by the District Magistrate on 25th of July 1972, holding that their decla ration stood annulled. As mentioned above, this order of the District Magistrate was set aside by a Division Bench of this Court. It was also alleged by the petitioners that they had not been given any show‑cause notice and the order was passed behind their back.

8. The above narration of facts bears out the contention, made in the written statement filed by the respondent, that the petitioners were given separate show‑cause notices and were heard personally by the District Magistrate before passing the impugned order. It cannot, therefore, be said that there was any violation of the rule of natural justice

9. Mr. Brohi submitted that the impugned order was factually unsus tainable because the paper was being regularly published every week and it could not, therefore, be said that there was any violation of clause (ii) of . subsection (3) of section 9 of the Ordinance. It was his contention that there was no power with the District Magistrate to annul the declarations already on the record and the case was sought to be brought within clause (ii) of subsection (3) of section 9 by a tortuous and unreal interpretation. It was argued by Mr. Brohi that the declarations filed under section 7 could be annulled only under the provisions of sections 9, 10 and 11 and there was no other power with the District Magistrate to annul the declarations if the provisions of these sections were not applicable to the facts of a case. Dealing with the contention whether or not ljaz Hassan Qureshi could function as a Printer of Weekly "Zindgi", Mr. Brohi referred to the definition of the word "Printer" in clause (1) of section 2 of the Ordinance, which is to the following effect:‑ "Printer means the person who owns or keeps in his possession any press for the printing of books or papers." Mr Brohi forcefully argued that according to this definition, Ijaz Hassan Qureshi was a "Printer" within the contemplation of the Ordinance as he was a keeper of the "Urdu Digest Printer's Press" where Weekly "Zindgi" was being published. The learned counsel submitted that if the Legislature wanted to impose a further obligation on a Printer of a newspaper, the definition should also have covered the declarations prescribed under section 7 of the Ordinance. The learned counsel submitted that there was no . contrivance or wilful evasion of law. Reverting to the official reticence for such a long time, he conceded that be did not claim any estoppel against the statute but maintained that the matter did not involve the violation of statute but related to a departmental interpretation. The learned counsel also submitted that the object of law had not been defeated by the omission of Ijaz Hassan Qureshi to file a declaration under section 7 as his name was continuously being published as a Printer since 5th of January 1970 and the Government had been treating him as such in all proceedings before the Courts including the Supreme Court which dealt with Government's appeal .against the order of the High Court passed in the writ petition filed by .the present petitioners against their conviction by a Military Court.

10. In the alternative Mr. Brohi said that in any case, the declaration filed by Altaf Hassan Qureshi as a Printer of the Weekly "Zindgi" was there and it cannot be said that the paper was being published in the absence of an authenticated declaration of a Printer. Mr. Brohi in this connection referred to section 16 which lays down the procedure as to how a Publisher's or Printer's ceasing declaration has to be authenticated Mr. Brohi said that legally Altaf Hassan Qureshi had not ceased to be a Printer because he had not appeared before the District Magistrate in accordance with the provisions of section 16 of the Ordinance to subscribe to a declaration of cessation.

11. The stand of Mr. Brohi that the declarations could not have been annulled by application of clause (ii) of subsection (3) of section 9, appears to have force, although Mr. Abdus Sattar Najam, the learned Assistant Advocate‑General tried to justify this order by saying that since the paper was being published without a Printer's declaration, the District Magistrate was justified in ignoring its periodical appearances and coming to the conclusion that the paper should not be considered to have been published at all. There is no denying that the Weekly "Zindgi" was being published since the High Court order was passed in Letters Patent Appeal No. 118 of 1972 on 22nd of June 1973. A number of copies were filed in Court to show that the paper was being regularly published and the order of the District Magistrate that the declarations stood annulled under clause (1) of sub‑A section (3) of section 9 is factually unsustainable In my view, the argument advanced by the learned Assistant Advocate‑General cannot be sustained on the language of the provision of law on which the learned District Magistrate has relied. This provision of law deals with a factual situation where a weekly paper is not published successively for two weeks. This is not the case here. There was no lapse whatsoever in the periodicity of the paper.

12. The Ordinance envisages control of printing presses and imposes certain pre‑conditions and restraints on the publication of newspapers etc. Its restrictive provisions have to be given strict interpretation and where powers of restraint have to be used under a particular factual situation their application cannot be extended by implications to situations not envisaged in the disabling provisions. The situations under which declarations subscribed under section 7 can be annulled, have been mentioned in sections 9, 10 and

11. At the most a newspaper published without a valid Printer's or Publisher's declaration may be unautborised newspaper within the meanings of clause (ii) of subsection (3) of section 9 of the Ordinance. The action of a person who has not subscribed to a declaration, as prescribed under section 7 of the Ordinance, in printing to a newspaper may be visited with penalty prescribed in the Ordinance, but where a paper was being published regularly it cannot be said that it had trot actually made its appearance. There is no provision in the whole of the Ordinance to authorise the District Magistrate to consider such publication as non‑existent.

13. The next legal contention of Mr. Brohi that Ijaz Hassan Qureshi came to be a Printer within the definition of that word as contained in clause (1) of section 2 of the Ordinance, has its own attraction. If there was nothing to indicate in the Ordinance itself that the word `Printer' had a larger connotation, the plea of Mr. Brohi would have prevailed. But it has to be pointed out that section 5 of the Ordinance is imperative in its language and says that no newspaper would be printed or published except in conformity with the provisions of Part III of the Ordinance and in the absence of an authenticated declaration under section 7 in respect thereof. According to section 7, a Printer and Publisher of every news paper has to file a declaration in Form `B'. This would mean that al' keeper of the press has to file an additional declaration under section 7 when he wants to act as a Printer of a newspaper. The definition of the word `Printer' in the Ordinance in my view is not exhaustive and requires enlargement so as to also include a Printer within the contemplation of section 7 of the Ordinance. It was, therefore, necessary for Ijaz Hassan Qureshi to file a separate Printer's declaration under section 7 of the Ordinance in order to assume the status of the Printer of Weekly "Zindgi". He has not done so. His claim in his reply to the District Magistrate that he had filed a declaration under section 7 is not factually correct because the file shows that he filed a declaration under section 4 as a keeper of the press.

14. Mr,. Brohi's argument that it was a matter of departmental inter pretation and not a question of law, has its own appeal, but it is not possible to ignore the positive and imperative provisions contained in Part III of the Ordinance which deals with the printing and publication of the newspapers. Before a newspaper can be printed, the Printer and Publisher thereof have to file a declaration in Form `B' as required under section 7 of the Ordinance. There is no Printer's declaration as enjoined by section 7 in the name of Ijaz Hassan Qureshi.

15. The alternative argument of Mr. Brohi is that there was, to start with, a valid Printer's declaration in the name of Altaf Hassan Qureshi and since he has not filed any ceasing declaration as is required under section 16 of the Ordinance, it cannot be said that his declaration as a Printer has ceased to exist. This argument ignores the fact that in the writ petition as filed, Ijaz Hassan Qureshi had claimed for himself the status of a Publisher and Printer. No status was claimed for Altaf Hassan Qureshi nor any relief was asked on his behalf. It is also correct that Altaf Hassan Qureshi ceased to be a Printer within the definition of the word in the Ordinance because he ceased to be a keeper of press, on account of his letter dated 17th of December 1969. His omission to appear before the District Magistrate to subscribe to a ceasing declaration Z does not continue to confer on him the status of a Printer. He ceased to be a Printer in the legal sense of the word and his non‑appearance for subscribing to a ceasing declaration will not change the legal position. The relief in a writ petition is to be confined to the facts alleged therein. In the writ petition no relief was claimed for Altaf Hassan Qureshi although in a further statement it was averred that Altaf Hassan Qureshi continued to be a Printer. There is no legal substance in this stand.

16. I had summoned Mr. Mumtaz Hussain, Advocate, as an amicus curiae in this cage. In a considered argument he conceded that there was no jurisdiction with the District Magistrate to cancel the Publisher's declaration in respect of Weekly "Zindgi". He, however, did not agree that the effect of the absence of Printer's declaration under section 7 was a matter of departmental interpretation. It was his submission that whatever the merits of the case, this could not permit or condone the publication of Weekly "Zindgi" in the absence of Printer's declaration. He agreed ,with the learned Assistant Advocate‑General that there was no valid Printer's declaration in the name of Ijaz Hassan Qureshi and that Altaf Hassan Qureshi's declaration had also ceased to exist in the eye of law because its validity was dependent on his being a keeper of the press. It was his contention that the letter dated 7th of December 1969, .addressed by Altaf Hassan Qureshi to the District Magistrate had the automatic effect of terminating his‑status as a Printer of the Weekly "Zindgi".

17. The factual foundation for the order of the District Magistrate has been found to be non‑existent. If the matter were to stop at that, the question would have been simple and Dr. Ijaz Hassan Qureshi would have been entitled to the relief he had asked for in this writ petition. The omission to file a Printer's declaration under section 7 of the Ordinance is, 7n my view, a hindrance in his way. It is of course, clear to me that if at the time of filing a declaration under section 4 as a keeper of the press be had also filed a declaration under section 7, it would have been certainly authenticated by the District Magistrate. A perusal of the file shows that in reply to the usual queries made before the authentication of the declaration filed by Ijaz Hassan Qureshi as keeper of the Press, the Senior Superintendent of Police reported that Ijaz Hassan Qureshi was a well‑known journalist and had a vast experience in printing and publishing. The S. S. P. wrote to say that there was no objection to the transfer of the Press in question in his name. The letter from the A. I.‑G. Special Branch also said that there was nothing against Dr. Ijaz Hassan on the file of the Special Branch. It appears to be an unfortunate omission on the part of ljaz Hassan Qureshi. But ignorance of law is no excuse. In his letter dated 20th of December ! 969, along with which he had submitted a declaration under section 4 as a keeper of the "Urdu Digest Printer's Press", he had particularly mentioned the fact that he was a Publisher of Weekly "Zindgi". If be was conscious of the fact that a further declaration under section 7 was called for, there is no reason to believe that he would have hesitated to file the same. There does not appear to be any contrivance in this matter and the omission in the circumstances of the case appears to be one of which no serious notice should have been taken. He gave himself out as a Printer of the paper since 5th of January 1970, and the Government .all along acknowledged him as such. Notwithstanding his omission to file .a Printer's declaration he could have been legally responsible in all proceedings whether civil or criminal for the matter printed in the weekly "Zindgi" under section 15 of the Ordinance as he was being shown as a Printer in the print line. It was an extremely belated realisation on the part of the Government which resulted in the impugned order. There cannot be any estoppel against the statute and the Government cannot be .asked to submit to the violation of a statutory provision because they P submitted to it for a number of years. On the facts of this case however it appears to me that it is a question of complying with a formality.

18. The result is that the writ petition partly succeeds. The finding of the District Magistrate that the case of "Zindgi" was covered by clause (it) of subsection (3) of section 9 of the Ordinance, is found to be factually erroneous and unsustainable. The cancellation of the publisher's declaration in the name of Dr. Ijaz Hassan is, therefore, found to be without lawful .authority and of no legal effect. The petitioner's prayer for a direction to the respondent not to interfere with his right to print and publish weekly "Zindgi" cannot be unconditionally acceded to. Dr. Ijaz Hassan has to file a Printer's declaration in terms of section 7 of the Ordinance before he is able to start the publication of Weekly "Zindgi". The cost of this petition shall be borne by the parties.

18. Mr. Mumtaz Husain shall be paid rupees one thousand as his fee. S. A. H. Orders accordingly.