FEDERATION OF PAKISTAN Versus PUBLIC AT LARGE

1. NASIM HASAN SHAH, J.‑‑This judgment will dispose of Shariat Appeal No.18‑R of 1984 Federation of Pakistan v. Public at Large and others, Shariat Appeal No.20 of 1984, Province of Punjab v. General Public of Pakistan and Shariat Appeal No.27 of 1984, Province of Baluchistan v. General Public of Pakistan as all of them are directed against the amendments ordered to be made by the Federal Shariat Court in its order dated 27‑3‑1984 in the W.P.Press and Publications Ordinance (hereinafter called the Ordinance) while disposing of S. S. M. No.140 of 1983.

2. The Federal Shariat Court while carrying out suo motu review of the existing laws in force in the country found the following provisions of the Press and Publications Ordinance viz. Sections 4, 9, 10, 12, 23, 24, 35, 48, 49 and 50 were repugnant to the Injunctions of Islam and directed that amendments be made therein (in the manner and to the extent indicated in the judgment) by the 30th September, 1984. Feeling aggrieved thereby, the Federation of Pakistan, the Province of the Punjab and the Province of Baluchistan have preferred appeals, noted above, against this direction. The main ground raised in support of the appeals is that the Federal Shariat Court, acting under Article 203‑D of the Constitution, cannot issue directions for the amendment of a Statute when the provisions of law ordered to be amended are not repugnant to the Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). It is submitted that under Article 203‑D of the Constitution of the Islamic. Republic of Pakistan the jurisdiction of the Federal Shariat Court is limited to the examination and decision of the question whether or not any law or provision of law is repugnant to the injunction of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.l. Accordingly, it was necessary for the Federal Shariat Court to record a clear and specific finding as to how and in what manner the existing provision of law was opposed to the Holy Qur'an or the Sunnah of the Holy Prophet (p.b.u.h.) and why the suggested amendment was necessary. However, neither any such finding has been given nor, it is submitted, are the provisions in question in fact repugnant to the injunctions of the Holy Qur'an and the Sunnah. It is furthermore submitted that the amendments ordered are .neither feasible nor in public interest. The reasons for saying so are detailed by, the appellants in the memorandum of appeal, which were further elaborated before us by the learned Deputy

3. Attorney‑General (Mr. Riaz ul Hasan Gilani) and the learned A.A.‑G (Pb.) Mr. Nawaz Abbasi, at the hearings of the appeals.

4. In order to determine how far the criticism levelled against the findings of the Federal Shariat Court is justified, it is necessary to refer to the approach adopted by the Federal Shariat Court in reaching to the conclusion to which it has arrived. The learned Chief Justice of the Federal Shariat Court, who has written the judgment of the Court, in his detailed and exhaustive judgment first gave a summary of the provisions of the Ordinance (paras 25 to 35 of the judgment). He then went to discuss the concept of an Islamic State and the powers and functions its various organs can exercise. The matter of the right of freedom of thought and expression the question here relevant has been elaborately discussed (in Paras 95 to

5. 108). According to the learned Chief Justice "Islam gives the right of freedom of thought and expression to 'all citizens of the Islamic State on the condition that it should be used for the propagation of virtue and truth and not for spreading evil and wickedness" . In elaboration of this concept he observed:‑

6. "Under no circumstances would Islam allow evil and wickedness to be propagated.The right to freedom of expression for the sake of propagating virtue and righteousness is not only a right in Islam but also an obligation. One who tries to deny this right to his people is openly at war with God, the All‑powerful. And the same thing applies to the attempt to stop people from evil. Whether this evil is perpetrated by an individual or by a group of people or the Government of one's own country, or the Government of some other country; it is the right of a Muslim and it is also his obligation that he should warn and reprimand the evil‑door and try to stop him from doing evil. Over and above, he should openly and publicly condemn it and show the course of righteousness which that individual, nation or Government should adopt."

7. The learned Chief Justice thereafter proceeds to detail the restrictions to which the right to freedom of expression is subject and his conclusion is expressed thus:

8. "What mainly distinguished Muslims from others is the quality that the Muslims enjoin what is good and forbid the wrong."

9. In Islam, it is observed "each Muslim is thus, the sentinel 'of others' actions". But the performance of this duty should always be subject to the condition that the method adopted for enjoining the good and forbiding the wrong should be persuasive and not offensive. In case it is offensive it may become the cause of further mischief which is not allowed in Islam. The scope of this duty is laid down in the verse‑‑

10. "But help ye one another unto righteousness and pious duty. Help not one another unto sin and transgression, but keep your duty to Allah. Lo! Allah is severe in punishment". (Verse 2 Sura V )

11. Thereafter, the provisions of the Press and Publications Ordinance are taken up for examination and examined in some detail. After certain general observations in regard to the meaning of the word "journalism" and its role in society, the cardinal virtues of a true journalist and what is expected from him the opinion is expressed that "freedom of the press is necessary since it is the unquestionable right of a journalist to discuss what is not explicitly forbidden by law including the wisdom of any restrictive statute".

12. In this connection, reference is made to Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 (occurring in the Chapter of Fundamental Rights) which provides:

13. "19. Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press , subject to any reasonable restrictions imposed 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 or morality, or in relation to contempt of Court, commission of or incitement to an offence" .

14. (Underlining is ours)

15. The learned Chief Justice goes on to observe that one of the methods of imposing reasonable restrictions on the freedom of the press can be through restrictive statutes. The restrictions that can be incorporated in such statutes are then referred to on the basis of the verses of the Holy Qur'an, the Islamic Declaration for Mass Media (published by the Islamic Press Union) and writings of the scholars. The directions given for amendments, in the provisions already mentioned, have been made in their light.

16. There is no doubt that the Federal Shariat Court has approached the matter in a highly scholarly manner. However, some justification exists in the criticism levelled against this approach, namely, that in deciding the question whether the provisions in question are repugnant to the injunctions of Islam, the Federal Shariat Court has not examined the said provisions solely on the touchstone of their being "repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.)" but imported some other criteria also, to test their validity. It is submitted, with some force, ~A that the warrant for the exercise of jurisdiction conferred on the Federal Shariat Court under sub‑article (1) of Article 203‑D of thel Constitution is the Injunctions of Islam" and nothing else. Instead the Federal Shariat Court has examined the validity of the provisions of the law in question, not only with regard to their repugnancy toi the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah_ of the Holy Prophet (p.b.u.h.), but also to Article 19 of the Constitution and the Islamic Declaration for mass media and the writings of the scholars on the subject. We, therefore, have examined the provisions of the Press & Publications Ordinance which have been found to be infirm by the Federal Shariat Court solely on the touchstone of the Injunctions of Islam.

17. Sections 4 and 12 of the Ordinance pertain to the same subject. These sections read as follows:‑

18. Section 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' of such other form as may be prescribed.

19. (1‑A) Every declaration made and subscribed under subsection (1) , shall be authenticated under the signature and official seal of the District Magistrate, before whom the said declaration is made.

20. (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.

21. (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 in 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 commission of any cognizable offence involving violence or for defamation.

22. (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.

23. (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 consideration thereof, and after giving such printer an opportunity of being heard, modify, confirm or rescind the order of the District Magistrate.

(2) As often as the place where a printing press is kept is changed, a fresh declaration shall be necessary:

24. 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.

25. Section 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 declaration unless he is satisfied that:‑‑

(a) the proprietary 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.

(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 prejudicial to the glory of Islam, or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or manner prejudicial to the glory of Islam, or the integrity, declaration is made for the purpose of Commission of, or incitement to, an offence.

26. (4a The District Magistrate shall, before passing an order under subsection (2), given 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 authenticated by the District Magistrate under subsection (2) or subsection (3) may make 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 heard, modify, confirm or rescind the order of the District Magistrate.

27. It is pointed out that section 4(1‑A) and section 12 deal with authentication of declaration under the seal and signature of the District Magistrate without which the declaration is not complete. However, no time is fixed within which the District Magistrate should B authenticate the declaration and he can take as much time for doing so as he likes, with the result that his decision refusing to authenticate the declaration has, in several cases, been communicated several years after it was subscribed before the District Magistrate. The order of the District Magistrate in such a case, furthermore, is final and there is no remedy against it by way of appeal.

28. In view of all this, the Federal Shariat Court ordered that a time‑limit of two months should be laid down within which the authentication can be refused by the District Magistrate and on expiry ;.f the said time limit the declaration shall be authenticated by the District Magistrate under his seal or signature. This amendment was ordered to be made in sections 4 and 12 of the Ordinance.

29. The above amendment proposed is opposed by the learned counsel for the appellants on two fold grounds: (a) that the existing provisions of the Ordinance are not repugnant to Quran and Sunnah; and (b) the time limit of two months is too short.

30. We do not find any force in the first ground.

31. In Islam human beings are allowed the liberty of choosing what is best for them; Thus, it is declared in Verse 10 of Surah VII of the Holy Quran:

32. "And We have given you (mankind) power in the earth, and appointed for you therein a livelihood. Little give ye thanks!"

33. Holy Prophet (p.b.u.h.) is also reported as observing:

34. Indeed human beings are enjoined to strive for a good and decent life during their sojourn on this earth. For this end, they have a right to enter upon any lawful business and earn an honest living thereby. This aspect has very aptly been described by Arnold as follows: ‑‑

35. "Islamic law favours every practical activity, and holds in great esteem agriculture, commerce, and every kind of work, it censures all those who burden others with their maintenance, requires every man to keep himself by the produce of his own labour, and does not despise any sort of work whereby man may make himself independent of others."

36. "Legacy of Islam" Edited by Sir Thomas Arnold--Oxford University Press, p. 289" .

37. If, therefore, an individual for the purpose of earning his livelihood decides to start the business of printing of books and in this connection wants to run a printing press, no interference can be placed to his running such a press, which will enable him to earn a livlihood under the Injunctions of Islam. It is only if it appears to the authorities that the owner of the press is going to use it for creating "fitna" and "fasad" can they restrain him from running it. But the Holy Quran enjoins Adal, Qist & Ihsan in dealing with people and, therefore, F any provision which does not prescribe any limitation of time for making a determination of this question and permits the authorities to take their own time to decide the question (sometimes running into years) which may prevent him from entering and pursuing a lawful profession and depriving him of an honest living, being unfair, is not countenanced in Islam. Indeed such an uncontrolled power interfering with the right to work of a citizen is against the Injunctions of Islam of Adal, Qist and Ihsan. Hence, the necessity for providing a limit of time within which a decision of this question should be made.

38. Now coming to the second objection, namely, that to enable a proper decision to be made on the question, the time of two months for making all the necessary inquiries is too short and that in any case the concept of automatic authentication of the declaration on the expiry of the said period of two months visualised by the Federal Shariat Court is not justified, we agree that the period laid down by the Federal Shariat Court, namely, two months, is indeed too short. Accordingly, after some discussion on this point with the learned counsel for the Federation and the learned counsel for the Provinces of Punjab & Baluchistan, we have reached the conclusion consistent with the Islamic Injunctions of fairness that a period of four months ID is sufficient for the authorities to be able to decide whether the Declaration subscribed before them should or should not to be authenticated. We would direct accordingly.

39. We also consider that the Islamic Injunctions of Adal , Qist and Ihsan warrant that in cases where authentication of the declaration is refused by the District Magistrate, the aggrieved party should be entitled to test the correctness of such an important decision effecting E the livelihood of a person, by way of an appeal. This is also consistent with the injunction of the Holy Quran (Surah 4 Verse 59). An ~ amendment in section 48 to this effect is, therefore, also necessary and we order accordingly.

40. The next provision wherein the Federal Shariat Court has directed the making of some amendment is section 9. This provision is to the following effect:--

41. Section 9:

(1) 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 is authenticated under section 12, the declaration shall become null and void.

(2) Where a declaration becomes null and void under subsection (1), the printer and the publisher shall make and subscribe a fresh declaration under section 7 before printing or publishing the newspaper, and the provisions of subsection (1) shall apply to the fresh declaration and to any subsequent fresh declaration.

(3) Where a newspaper having been published is not. published:--

(i) in the case of a daily newspaper, for sixteen days in a declaration month;

(ii) in the case of a weekly newspaper, for two weeks in a calendar month;

(iii) in the case of a fortnightly newspaper, for one month;

(iv) in the case of a monthly newspaper, for two months;

(v) in the case of a quarterly newspaper, for six months; and

(vi) in the case of a six monthly newspapers, for one year; 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 subsections shall, without prejudice to the provisions of this subsection, apply.

(4) Where a newspaper does not belong to any of the categories mentioned in subsection (3) and the interval of its publication is intermediary between two successive categories mentioned therein, it shall be governed by the provisions of that subsection as if it belonged to the less frequent category of the two.

(5) Nothing in subsection (1) or subsection (3) shall apply in the case of a printer and publisher who within the period stated in those subsections and applicable to the particular case, shows to the satisfaction of the District Magistrate that the newspaper has not been or cannot be published for reasons which are beyond their control.

42. Explanation. --If a publisher fails to bring out any issue or issues of the newspaper as required by the periodicity mentioned in the declaration, and produce a combined issue, such combined issue shall for the purpose of this section be regarded as one issue irrespective of the serial numbers given on it.

43. This section provides that the declaration shall become null and void if the publication in question is not published within ; months of the date on which the declaration is authenticated or the relevant publication is not published according to the schedule of the periodicity prescribed by subsection (3) of section 9 for the periodicals referred to therein. According to this section where a declaration has been so declared null and void, a fresh declaration shall be made under section 7.

44. The Federal Shariat Court has directed that this section shall be amended to the effect that it shall be clarified that the subsequentdeclaration filed and subscribed to by a printer or publisher of a newspaper after such annulment shall be authenticated automatically.

45. This direction is grounded on the same reasoning and in somewhat the same terms on which the amendment in sections 4 and 12 were ordered by the Federal Shariat Court. We have, while dealing with sections 4 and 12 modified the said direction. Accordingly, section 9 will also be amended on the same lines as the amendments ordered in sections 4 and 12 above, namely, that where a declaration becomes null and void under subsection (1) of section 9 or subsection (3) of section 9 and a fresh declaration is made under section 7, the decision with regard to its authentication must be made within four months. And, in case this is adverse to the printer and publisher he shall have a right of appeal against it under section 48.

46. The next provision wherein the Federal Shariat Court has suggested an amendment is section 10. This provision reads:‑‑

47. Section 10

48. If at any time after the making of a declaration under section 7, the newspaper to which the declaration relates is printed or published in a language, with a periodicity or at a place other than the language or languages, periodicity or place shown in the declaration, the declaration shall become null and void, and any further printing and publication of the newspaper shall be unauthorised unless a fresh declaration under section 7 is made, but nothing in this section shall apply to a temporary change of the place of printing or publication for a period not exceeding fifteen days at any one time if within seventy‑two hours of such temporary change approval in writing of the District Magistrate within whose jurisdiction the newspaper is printed or published, and in the case of temporary change from one district to another district, of the District Magistrate of the other district to such temporary change is obtained:

49. Provided that no such approval shall be accorded unless the printer or the publisher, as the case may be, satisfies the District Magistrate concerned that such change was avoidable.

50. Simply put section 10 provides that a declaration shall become null and void if the publication to which the declaration relates is printed or published in any language, with a periodicity or at a place other than that specified in the declaration. It also provides that in such case a fresh declaration shall be filed under section 7.

51. The Federal Shariat Court has suggested that it should be clarified by amending section 10 that in the same province, such change will not make him liable to the danger of refusal to authenticate and authentication would only be a formal affair made for the purpose of record.

52. This suggestion is not objected to by the Federation of Pakistan but is objected to by the province of the Punjab on the ground that the matter dealt with in this provision is a matter of procedure and, therefore, not within the cognizance of the Federal Shariat Court.

53. We do not agree with the objection of the learned counsel for the Province of the Punjab. In our opinion where the filing of a fresh declaration becomes necessary under the provisions of section 10, the same conditions shall apply to its disposal as have been directed by us while making amendments in sections 4, 12 and 48 above. A similar amendment will, accordingly, be made in this section also.

54. The next provision requiring consideration is section 23. This provides that where it appears to the Government that any printing press is used for the purpose of printing or publishing any materia mentioned in section 24(1), the Government may, by notice in writing to the keeper of the press order the keeper to deposit with the,‑1 District Magistrate security ranging from Rs.500 to Rs.30,000. If the security is not deposited by the appointed date the section empowers the Government to direct that the printing press shall not be used for the printing or publishing of any book or paper for such period as may be specified in the order.

55. The Federal Shariat Court has found that a hearing should be! provided to the printing press before any order of deposit of security is made and has directed that an amendment to this effect should be made. The Federation of Pakistan has no objection to this direction though the learned counsel for the Province of the Punjab has raised some objections to it. However, as the amendment for affording a hearing to the keeper of the printing press before any order of the x deposit of security is made is in accord with the injunctions of Islam as held by us in Pakistan and others v. Public at Large Shariat Appeal No. 6 of 1983 P L D 1987 S C 304, wherein it has been observed that before any action affecting the rights of any person is taken he should be afforded an opportunity of hearing. Accordingly, we would uphold the direction given by the Federal Shariat Court, An amendment on the lines suggested by the Federal Shariat Court shall, therefore, be carried out in section 23.

56. The next provision of the Ordinance wherein the Federal Shariatl Court has found that an amendment is necessary is section 24. This section empowers the Government that where any printing press appears to it to have been used for the purpose of printing or publishing any material of the nature specified in subsection (1) the L Government may by order in writing to the keeper of such printing press direct that the printing press shall not be used for the printing or publishing of any book or paper for such period as may be specified in the order. If some security has been deposited by such keeper under section 23 the same can be forfeited to the Government and all copies of such book or paper can also be forfeited.

57. The Federal Shariat Court has directed that a subsection shall be added to section 24 to the effect that before taking any action based on grounds given in section 24(1) the person effected thereby shall be afforded an opportunity of being heard.

58. Dr. Riaz‑ul‑Hasan Gilani, the learned Deputy Attorney‑General, has no objection to the making of such an amendment in connection with the use of the Press or the forfeiture of the amount of security. He, however, submits that it would not be possible to afford an opportunity to hearing before forfeiting a publication as immediate action in this regard may be necessary in the public interest in certain cases and to postpone the action, pending a hearing, may adversely affect the public interest in such cases.

59. There is force in this submission. We have ourselves ruled that in cases of emergency action can be taken by the concerned authority even without affording a prior hearing. However, a hearing shall be provided to the person affected in such a case, as soon thereafter as is possible (Shariat Appeal No. 2 of 1985 Province of Sind v . Public at Large. In other words affording a hearing before taking action should be the rule but in cases of emergency this rule can be departed from to the extent that the hearing is postponed after the action has been taken. Section 24 should be amended in line with what has been observed in the above noted two paragraphs.

60. The next section of the Ordinance to which the Federal Shariat Court has taken objection and required the making of an amendment is section 35. This section empowers the Government to constitute a Commission for inquiring into the affairs of any printing press or newspaper generally and with respect to the following matters specified therein

(a) Whether the printing press or the newspaper is in receipt of any financial aid in cash, kind, or otherwise.

(b) Whether any such financial aid is being received from citizens of Pakistan, or from or through persons who are not such citizens.

(c) Whether funds are being raised through extortion, blackmail or any deceitful means; and

(d) Any other matter connected with or incidental to any of the matters aforesaid.

61. According to the Federal Shariat Court an inquiry into the affairs of any printing press or newspaper should not be a "general inquiry" but should be confined only to "specified matters" and has suggested, therefore, that the words "generally, and" used before clause (a) in subsection (1) of section 35 should be omitted. This amendment is objected to by the learned counsel for the Federation as well as that of the Province of the Punjab. It is submitted that the amendment ordered by the Federal Shariat Court is not feasible because some scope for inquiry into unforseen matters should be left. In respect of clauses (a) to (c) noted above, it is submitted that the printing press and newspaper organisations being commercial enterprises are not supposed to receive "aid" from outside sources, In case they did so it would imply that they were serving certain vested interests with ulterior motives. Hence, the Government should have the power to inquire into the question whether the aid being received is bona fide or not? It is further submitted that the Federal Shariat Court while directing the amendment seems to think that to' receive aid from citizens of Pakistan is legal but has over‑looked the fact that no foreign agency gives aid to any Pakistani organization directly. This is mostly done through their Pakistani agents. Hence, it would be in the broader national interests to retain this provision, in its existing terms.

62. As regards clause (d) noted above, the same being almost a corollary to the other clauses (a), (b) & (c) there seems to be no wisdom in its deletion either.

63. We are inclined to agree with this submission. Moreover, it has not been shown by the Federal Shariat Court how any provision of section 35 is repugnant to the Injunctions of Islam. The direction given by the Federal Shariat Court for making an amendment in section 35 is, therefore, not warranted and the appeal is allowed, to this extent.

64. The next provision of the Ordinance, wherein Federal Shariat Court has thought it fit to direct the making of amendment, is section 48. it reads as follows:‑‑

65. Section 48 :

(1) The keeper of a printing press who has been ordered to deposit security under subsection (1) of section 23. or the publisher of a newspaper against whom any order has been passed under subsection (1) of section 27 or any person having an interest in any property in respect of which an order of forfeiture has been made under subsection (4) of section 22, section 24, section 26, section 28, section 30, section 39 or any keeper of a printing press or publisher of a newspaper whose declaration has been suspended or annulled under any provisions of this Ordinance or any person affected by injunction or order passed under subsection (5‑a) of section 35, may, within two months from the date of such order or injunction prefer an appeal to the Government.

(2) If an appeal is not preferred within the time specified in subsection (1), or in the manner prescribed thereunder, the Government may reject the appeal.

66. It will be seen that this Section specifies the circumstances in which a printer or a publisher can appeal against the decisions of the Government. Under this section a time limit of two months is prescribed within which an appeal can be preferred. However, as noted in the earlier part of the judgment, this section does not provide for an appeal where a declaration has not been authenticated.

67. In the directions given by the Federal Shariat Court for amendment of this section, it has been suggested that a provision shall be added for making the order of refusal to authenticate, appealable before the Tribunal under section 48 of the Ordinance.

68. Accordingly, section 48 should be amended to provide for an appeal against the order of refusal to authenticate passed under any of the provisions of the Ordinance. The Federal Shariat Court has also directed that a right of appeal be given against an order of forfeiture of the press. It has further directed that the provisions requiring the preferring of an appeal be omitted and a provision added in section 48 for preferring an appeal direct to the Tribunal constituted under section 49. The learned counsel for the Federation of Pakistan submitted that he has no objection in regard to the making of these amendments. We also agree with the Federal Shariat Court in this regard with the result that section 48 shall be amended to the effect that in addition to the appeal provided for therein in respect of the orders already specified in section 48, an appeal shall also be competent against the orders passed under sections 4, 12, 9, 10 and 24.

69. The next provision wherein amendment has been directed by the Federal Shariat Court is section 49. This section provides for the constitution of one or more Tribunals for disposal of appeals preferred under section 48(1). Subsection (2) of section 49 provides that a Tribunal shall consist of 3 members. The Chairman being a person who is or is qualified to be a Judge of the High Court and one of the remaining two members shall be a person in the Service of Pakistan, the Chairman and such member to be nominated by the Governor of the Province concerned, and the other a representative of working journalists or editors to be nominated by the Chairman from amongst two panels, each containing names of not more than six representatives, selected by the organisation of working journalists' and editors.

70. The Federal Shariat Court has come to the conclusion that section 49 should be amended so as to provide that the Chairman of the Tribunal shall be a Judge or a retired Judge of the High Court and one of its members shall be nominated by the Governor of the Province concerned (as also provided in the existing provision) and the third member chosen, also in the manner laid down in the existing provision. It has, however, observed that it should be provided in the amended provisions that the Tribunal consisting of the Chairman and the member to be nominated by the Governor shall constitute a "permanent body" while the third member may be selected by the Chairman, as already provided.

71. The learned counsel for the Federation of Pakistan has no objection to the proposed amendment except with regard to the direction that the Chairman and the member to be nominated by the Governor "shall be a permanent body". It is pointed out that the appeals preferred against orders passed under the Press and Publication Ordinance are few and far between and the constitution of permanent body, with all the expenses that such a course would entail would not be desirable. However, the appeals could be considered by any existing Tribunal whose Chairman is a Judge or retired Judge of the High Court and one of its members nominated by the Governor, sitting with the third member nominated by the Chairman from amongst the panel containing names of not more than six representatives, selected by the organizations of working journalists and editors` respectively, as provided in the existing provision.

72. We consider that the suggestion made by the learned counsel for the Federal Government is quite reasonable. We would, therefore amend the direction of the Federal Shariat Court in terms of the suggestion noted above. Accordingly, the requisite amendment shall/ be carried out on the lines mentioned above.

73. The last provision regarding which an amendment has been ordered by the Federal Shariat Court is subsection (3) of section 50. Section 50 lays down the procedure to be adopted by the Government for disposing of appeals while subsection (3) thereof provides that a Tribunal shall not issue an ad‑interim injunction or other order restraining the operation of the Government order pending the passing of its final order.

74. The Federal Shariat Court has ordered that subsection (3) of section 50 should be omitted. It has also directed that in section 50 a provision should be made that the Tribunal shall decide the appeals within the period of three months. These amendments have been challenged by the learned counsel for the appellants on the ground that. the subject‑matter dealt with in these provisions relates to the "procedure" to be adopted by the Tribunal and that such provisions of this nature are not subject to the cognizance of the Federal Shariat Court. We agree. Accordingly, the amendment suggested by the Federal Shariat Court in section 50 could not have been ordered by it and the objection of the appellants in this respect is sustained. The appeal to this extent shall, accordingly, be allowed.

75. The result is that these appeals are partly allowed and the directions contained in the order of the Federal Shariat Court for amendment in sections 35 and 50 are set aside. The amendments suggested in the other sections by the Federal Shariat Court i.e. sections 4, 9, 10, 12, 23, 24, 48 and 49, are modified in the terms set out above. The amendments directed to be made by us in these sections shall be carried out by all the Governments concerned by the 30th September, 1988, failing which these sections shall cease to have effect.

76. M.B.A. /F‑39/S Appeals partly allowed.