ZAFAR ALI Versus ISLAMIC REPUBLIC OF PAKISTAN
This Constitutional petition has been filed to call in question order, dated 30‑7‑1995 whereby the petitioner's appeal was dismissed by the Additional Secretary, Incharge Culture Division, Government of Pakistan, Islamabad, whereby the order passed by the Censor Board refusing to issue censorship certificate to the petitioner was refused.
2. As per the facts stated in the writ petition the petitioner had applied to the Government of Pakistan in the year 1989 for import of a Russian Feature Film titled "Legend of Love" based on the Pakistani folk story of ' Sohni Mehinwal' . The cast of the film included several known Indian actors and actresses. In August, 1989 the Ministry of Culture and that of Commerce, Government of Pakistan, issued N.O.Cs. for import of the film and an import licence was granted to the petitioner. Accordingly the petitioner imported the film but for some reasons censorship process was delayed, whereupon the petitioner approached the Wafaqi Mohtasib who passed an order on 28‑7‑1992 for submitting the film for censorship within 45 days. The film was placed before the Board which refused to grant the censorship certificate vide notification, dated 23‑8‑1994. The petitioner challenged the said order by way of an appeal before the Secretary, Ministry of Culture, Government of Pakistan. It was dismissed by the Additional Secretary, Incharge, Ministry of Culture, vide order, dated 25‑7‑1995 which has been assailed in the present petition.
3. The petitioner's learned counsel urged that the appeal had been dismissed by a non‑speaking order embodied in notification, dated 30‑7‑1995, which merely stated that the appeal filed under section 7 of the Motion Pictures Ordinance, 1979 had been rejected and that the film titled 'Legend of Love' would be deemed to be an uncertified film in respect of the whole of Pakistan. However, during the pendency of the petition the learned Deputy Attorney General placed on record a copy of the detailed order, whereby the petitioner's appeal was dismissed by the Federal Government. He clarified that the notification, dated 30‑7‑1995 was simply meant to convey the information regarding dismissal of the appeal and was not a detailed order. A copy of the said order was provided to the petitioner's learned counsel who re‑shaped his arguments and then the petition was admitted for regular hearing vide order, dated 17‑1‑1996.
4. I have heard learned counsel for the petitioner and the learned Deputy Attorney‑General, for the respondents and perused the relevant record. The petitioner's learned counsel strenuously urged that the petitioner's appeal was not decided by the Federal Government in accordance with the procedure prescribed under rule 37 of the Censorship of . Films Rules, 1980; that the Appellate Committee was to consist of 8 officers of Grade‑21 or above and three non‑official members but it actually consisted of six official and six non‑official members; that there was no proper intimation of the meeting to all the members; that one person namely Mr. Ramzan Adil attended the meeting although he was neither an official nor a member of the Committee; that the quorum was not complete and the alleged meeting held on 15‑12‑1995 was no meeting in the eye of law; that the petitioner's appeal should be deemed to be pending and decided afresh on merits. On the other hand, the learned Deputy Attorney‑General urged that the Federal Government had exercised its powers under section 7 of the Ordinance in a fair and bona fide manner; that the Federal Government is the best judge to determine the issue whether a film is suitable for exhibition or not; that the impugned order was passed keeping in view the guidelines stated in section 6 of the Ordinance; that the rule regarding constitution of the Appellate Committee was amended and the committee was to consist of 6 official and 6 non‑official members; that the requisite quorum under the rules was three members who had attended the meeting and expressed their opinion in the light of which the petitioner's appeal was rightly dismissed through a well‑reasoned order.
5. There is considerable force in the arguments raised by the petitioner's learned counsel. It appears that proper procedure laid down under Rule 37 of the Censorship of Film Rules, 1980 for deciding the appeal was not followed. Rule 37 is reproduced below for ready reference:‑‑‑
"37. Anneal to the Federal Government. ‑‑‑(1) Every appeal preferred to the Federal 'Government under section 7 shall be submitted in Form ' G' and shall be accompanied by a statement furnishing in addition to the particulars given in the application submitted to the Board for certificate of the film, the length of the excision, if directed by the Board to be carried out, and the number of reels in which such portions occur alongwith a treasury receipt of the screening fee deposited under the head of account of the Board at the rates specified in Table 8 of Schedule 11.
(2) Every film in respect of which an appeal is preferred shall be examined by an Appellate Committee set up by the Federal Government consisting of‑‑‑
(a) eight officers of Grade‑21 or above of the National Pay Scales of whom one shall be designated by the Government to be its Chairman; and
(b) three persons who are not in Government service
(3) Immediately after the examination of the film, the members of the Appellate Committee shall record their views stating clearly whether they agree with the views of the Board or not, and the report of the Committee shall be submitted to the Federal Government.
(4) The presence of at least three members of the Appellate Committee shall be necessary to constitute a quorum for the purposes of examination of the film, and the report of the Committee shall bear the signature of at least three of its members.
(5) In case the Appellate Committee disagrees with the finding of the Board, the reasons for such disagreement shall also be given in the report.
(6) The decision of the Federal Government taken on the basis of report of the Appellate Committee shall be communicated to the appellant for compliance, to the Board."
It is evident that the decision of the Federal Government on an appeal preferred under section 7 of the Ordinance has to be taken on the basis of report of the Appellate Committee. Therefore, it is essential that the Committee must be lawfully constituted and must perform its functions strictly in accordance with the provisions of sub‑rule (2) of Rule 37. The Committee is to consist of eight officers of Grade‑21 or above of the National Pay Scales of whom one has to be designated by the Government to be its Chairman and three other persons who are not in Government service. The learned Deputy Attorney‑General states that the rule was, subsequently, amended reducing the number of official members to six and raising that of non‑official members to six. No reliable material has been placed on the record to show that the rule was amended by the Competent Authority. In the printed books the rule is found as reproduced above. For the purpose of decision of the present petition, even if it is presumed that the rule was amended whereby the Appellate Committee was to consist of 12 members in all (six official and six non‑official members) the quorum for the meeting remained three members. The notification, dated 20‑10‑1993 contained in the record produced by the representative of the Federal Government reads as under:‑‑‑
In exercise of the powers conferred by section 7 of Motion Pictures Ordinance, 1979 and Rule 37 of the Censorship of Film Rules, 1980 and in super session of this Division's Notification NO.F:I‑4/85‑CO‑II, dated 3rd February, 1991, the Federal Government is pleased to nominate the following members on the Appellate Committee:‑‑.‑
Official Members:
(1) A representative of Ministry of Information and Broadcasting.
(2) A representative of Ministry of Foreign Affairs An officer of
(3) A representative of Ministry of Interior B.S. 21 or above.
(4) Chairman, Muatadira Qaumi Zaban, (National Language Authority, Islamabad.
(5) Chairman, University Grants Commission
(6) Director‑General, A.P.P.
Unofficial Members:
(1) Mr. Zia Jalandhri.
(2) Syed Safdar Ali Shah.
(3) Syed Zameer Jaffary.
(4) Dr. Maliha Lodhi.
(5) Mr. Najam Sethi.
(6) Mr. Farhad Zaidi."
It was partially amended vide Notification, dated 30‑4‑1994 whereby Mr. Masood Nabi Noor was nominated as an unofficial member in place of Dr. Maliha Lodhi. The meeting of the Appellate Committee was held on 15‑12‑1994. The intimation about the said meeting was given through Notification, dated 30‑11‑1994 which reads as under:‑‑‑
"SUBJECT: Appeal for Film Titled
'Legend of Love' (Fr. Urdu).
Arrangements for screening or a film titled 'Legend of Love' (Fr. Urdu) have been made at the Central Board of Film Censors, Street No.55, Sector F‑6/4, Islamabad on Thursday the 8th December, 1994 at 11‑00 a.m.
(2) All members of the Appellate Committee are requested to make it convenient to attend the screening of the aforesaid film.
(3) Relevant papers of the film in question are enclosed herewith:‑‑
1) Secretary, Ministry of Information and with the request to
Broadcasting, Islamabad nominate an officer of B.S. 21 or above to attend the meeting.
(2) Secretary, Ministry of Interior, Islamabad
(3) Secretary, Ministry of Foreign Affairs, Islamabad.
(4) Chairman, National Language Authority, Islamabad.
(5) Chairman, University Grant Commission, Islamabad
(6) Director‑General, A.P.P., Islamabad.
(7) Mr. Zia Jalandhri.
(8) Syed Zameer Jaffary, St. No.33, H. No.23, G‑9/1, Islamabad
(9) Mr. Najam Sethi
(10) Mr. Masood Nabi Noor, H. No.45‑A. 1st Street, F‑6/3, Islamabad
Copy forwarded for information and N.A. to:
(1) Chairman, C.B.F.C., Islamabad.
(2) D.S. (Culture)".
The notification, dated 20‑10‑1993 shows that the official members included one representative each from the Ministries of Information and Broadcasting, Foreign Affairs and Ministry of Interior. However, the record does not show as to whether any representative of the concerned Ministries was actually nominated and that he was really intimated about the date of the meeting. The copies of the notification, dated 30‑11‑1994 regarding meeting of the Appellate Committee appear to have been forwarded to the Secretaries: Ministry of Information and Broadcasting, Ministry of Interior and Ministry of Foreign Affairs, Islamabad. Further steps to nominate a representative were to be taken by the concerned Secretaries and, then, they had to inform their representatives about the date of the meeting. As mentioned above, the record is silent in this respect. There is yet another serious defect inasmuch as two non‑official members namely Syed Safdar Ali Shah and Mr. Farhad Zaidi were never intimated about the date of the meeting as per the contents of the Notification, dated 30‑11‑1994. There is yet another legal infirmity which vitiates the proceedings of the meeting held on 15‑12‑1994. The three members who attended the meeting include Mr. Masood Nabi Noor, Mr. Ramzan Adil, National Bureau Chief, A.P.P., Rawalpindi and Mr. Khalid Mahmood, Director‑General (E and T), out of whom Mr. Ramzan Adil came as a representative of the Director‑General A.P.P. Under the relevant rules three official members namely Chairman, National Languages Authority, Islamabad, Chairman, University Grants Commission, Islamabad and Director‑General, A. P. P. , Islamabad have been nominated in Appellate Committee by virtue of their office and the relevant rules do not permit them to nominate or to further appoint any other person to represent them in the meeting. Therefore, Mr. Ramzan Adil was not competent to participate in the proceedings of the Appellate Committee. The meeting held on 15‑12‑1994 was attended by two competent members only. Hence, the quorum was not complete and the proceedings held by the two members were vitiated for lack of quorum. It is well‑settled principle that when law requires a thing to be done in a particular manner it ought to be done in that manner or not at all. The Government cannot be allowed to act arbitrarily or in deviation of the rules which are primarily meant to protect the rights and interests of the citizens.
6. For the foregoing reasons, the petition is accepted and the appellate order, dated 25‑7‑1995 passed by respondent No.3 is declared to be without lawful authority and of no legal effect. The petitioner's appeal shall be deemed to be pending and be. .decided afresh by the Competent Authority/Additional Secretary, Ministry of Culture. Islamabad on merits in accordance with the provisions of Rule 37 of the Censorship of Films Rules, 1980. The Competent Authority shall make every effort to decide the appeal expeditiously preferably within a period of six months, after the receipt of the order.
A.A./Z‑43/L Order accordingly.