HAIDER ALI MULJEE Versus SECRETARY, GOVERNMENT OF SINDH
1. RAIDER ALI PIRZADA, J.‑‑ By this common judgment we intend to dispose of the above two petitions as they involve common questions of law. The facts leading to the filing of the above petitions are as under:
2. Petition No. D‑133 of 1985
3. The petitioner is the publisher of monthly "9th July" which is printed from F. M. Press, Chand Bibi Road, Karachi and is printed under authenticated declaration under section 12 of Press and Publication Ordinance (XXX of 1963) (hereinafter called the said Ordinance). The magazine prints and publishes topical articles, articles on health, religion and social services. In the month of September, and October, the magzine "9th July" brought out a single consolidated issue. The copies of Urdu and English are annexed to the petition as Annexures 'B' and 'C'. On 24th January, 1985, Secretary of Government of Sind, Home Department, Karachi, sent a notice under section 27(1) of the said Ordinance to the petitioner, informing him that the above issue contained a highly objectionable sensational and provocating material and it also bitterly criticises foreign Governments within the meaning of section 24 (1)(f), (i)(J) and (L) of the said Ordinance and called upon him to show cause within fifteen days of the receipt of the notice as to why he should not be required to deposit a security in the sum of Rs.30,000b (thirty thousand) as envisaged under section 27(1) of the said Ordinance. He, immediately, on 25>‑1 ‑1985, sent a reply to the Secretary, Home Department, acknowledging the receipt of the notice and stating in his reply that it did not contain relevant extract which was stated to be attached to the show cause notice 'there was no extract or alleged words/ paragraphs mentioned pointed out in the notice. Nothing was heared by him till the filing of the petition. The validity of the notice is challenged by the above petition.
4. Petition No. D‑134 of 1985
5. The petitioner is the printer of monthly "9th July" which is printed from F.M. Press, Chand Bibi Road, Karachi and is printed under authenticated declaration under section 12 of Press and Publication Ordinance (XXX of 1963) (hereinafter called the said Ordinance). The no magazine prints and publishes topical articles, articles on health, religion and social services. In the month of September and October the magazine of "9 th July" brought out a single consolidated issue. The copies of Urdu and English are annexed to the petitioner as Annexures 'B' and 'C'. On 24th January 1985, the Secretary to the Government of Sind, Home As Department, Karachi sent a notice under section 23 of the said Ordinance to the petitioner informing him that the issue contained highly As objectionable, sensational and provocating material and it also bitterly the criticises reign Governments within the mischief of clauses (f), (i), ply (J) and (L) of subsection (1) of section 24 of the said Ordinance and called upon him to show cause within fifteen days of the receipt of the notice as to why he should not be required to deposit a security in the sum of rupees thirty thousand as envisaged under section 23(1) of the said Ordinance. He immediately, on 25‑1‑1985, sent a reply to the Secretary, Home Department, acknowledging receipt of the notice and stating in his reply that it did not contain relevant appendix attached to the show‑cause notice which was stated to be attached there to there was no extract or alleged words/ paragraphs pointed out in the said notice. Nothing was heard till the filing of the petition. The validity of notice is challenged by this petition.
6. The respondent filed parawise comments. It is advantageous to reproduce relevant paragraph 7 of the petition and its. comments which read as under:
7. "7. That the said notice states This is incorrect as the letter "relevant extracts whereof are referred to, in the petition was enclosed" but no alleged offen not received in this depart live/objectionable extracts, ment. However, the publisher portions are pointed out, referred and the keeper of the press to or as stated enclosed. The were informed of the pages petitioner has sent a letter on containing objectioanble
8. 25‑1‑1985 stating therein that material in the magazine relevant extracts are not enclosed through notice. The magazine but no reply to the same is (in original) was available with received. The copy of this letter Mr. Haider Ali Mulji. The is filed as "D". requirement of Law is that no action should be taken without providing person concerned an opportunity of being heard."
9. In support of the above petitions it has been urged by Mr. S.A. Wadood the learned counsel for the petitioners that the impugned notices were not in accordance with the law inasmuch as the show‑cause notices failed to state or describe the words, signs or visible representation published in the petitioners' issue which in the opinion of the Government were objectionable, sensational and provocative as envisaged under sections 24 and 27 of the said Ordinance.
10. In order to appreciate the above contention of the learned counsel we may refer to sections 23(1), 24 and 27(1) of the said Ordinance which are reproduced herein below in extenso:
11. "23. Deposit of security by keeper of printing presses.‑‑(1 Whenever it appears to the Government that any printing pres is used for the purpose of printing or publishing any book o paper containing any words, signs or visible representations o the nature described in subsection (1) of section 24, the, Government may, by notice in writing to the keeper or t h, press, stating or describing such words signs or visible representations, order the keeper to deposit with the Distric Magistrate within whose jurisdiction the press is situated security to such an amount not being less than five hundred or more than thirty thousand rupees as the Government may think fit t( require in money or the equivalent thereof in securities of th4 Central Government, as the person making the deposit ma3 choose".
12. "24. Power to close down press and forfeit security.‑‑(1; Whenever it appears to the Government that any printing press is used for the purpose of printing or publishing any book of paper containing any words, sings or visible representation: which‑‑
(f) are indecent absence, scurrilous, defamatory or intended foe blackmail, or
(i) tend directly or indirectly to bring into hatred or contempt the Government established by law in Pakistan or the administration of justice in Pakistan or any class or section of the citizens of Pakistan or to excite disaffection towards the said Government, or, ,
(j) are likely to create or excite feelings of enmity, ill‑will or hatred between the populations of the two Provinces or the populations of any regions or parts of Pakistan, or between different communities, sects, classes, or sections of the citizens of Pakistan, or,
(I) are likely to prejudice the maintenance of friendly relations between the Government of Pakistan and the Government of any foreign State, or,...
13. The Government may, by order in writing to the keeper of such printing press, stating or describing the words signs or visible representations which in its opinion are of the nature described above: ‑
(i) 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, and
(ii) declare that any security deposited under section 23 or a portion thereof shall be forfeited to the Government and may also declare all copies such book or paper wherever found in the Province to be forfeited to the Government.
(2) Notwithstanding any privilege or immunity extending for the time being to proceedings of the National or Provincial Assembly, or the Courts of law or other judicial or quasi‑judicial bodies or tribunals, nothing in subsection (1) shall be construed as exempting from the operation thereof any book or paper, not being a book or a paper published officially or a law report, in which is printed such account of the proceedings of the National or Provincial Assembly, or of a Court of law or other judicial or quasi‑judicial body or Tribunal, if it contains any words, signs or visible representations of the nature described in any of the clauses (a) to (o) of that subsection (1),
(3) Where after the expiry of the period specified in an order under subsection (3) of section 23 or subsection (1) of this section, the printing press is again used for the purpose of printing or publishing any book or paper containing any words, signs or visible representations of the nature described in subsection (1), the Government may by order in writing annul the declaration made under section 4."
14. "27. Deposit of security by publisher of the newspapers.‑‑(1) whenever it appears to the Government that a newspaper published within West Pakistan contains any words, signs or visible representations of the nature described in subsection (1) of section 24, whether in any headline, caption or otherwise, or that any such headline or caption does not substantially reflect the material published thereunder, the Government may, by a notice in writing to the publisher of such newspaper stating or describing such words, signs or visible representations, require the publisher to deposit with the District Magistrate within whose jurisdiction the newspaper published security to such an amount, not being less than five hundred or more than thirty thousand rupees as the Government may think fit to require, in money or the equivalent thereof in securities of the Central Government, as the person making the deposit may choose.
15. Provided that no action under this section shall be taken without affording to the publisher an opportunity of being heard".
16. A bare perusal of the language of sections 23, 24 and 271 reproduced above would show that whenever it appears to the Government that any book or paper containing any word, sign or visible representation which in its opinion attracts the clauses of section 24 reproduced above, clearly provides that the Government has to state or describe in a notice under this section "the words signs or visible representations". In the instant case all that was stated in the show‑cause notices was that "in p.133 "9th July" in its issue of September/ October, 1984 at pages (i) in Urdu section 12, 13, 14, 15 and (ii) in English section 34 and 35 contains material (relevant extracts thereof are enclosed) and in petition 134, issue of September/ October, 1984 at pages (i) Urdu section 12, 13, 14, 15 and (ii) in English section 34 and 35 contains material (relevant extracts whereof enclosed) which is highly objectionable, sensational and provocating and it also bitterly criticises foreign Governments and thus fails within the meaning of clauses (f), (i), (j) and (1) of subsection (1) of section 24 of the said Ordinance."
17. The submission of the learned counsel for the petitioner is that the objectionable portions of the "words, signs or visible representation" were not specified in the show‑cause notices which is contrary to the requirement of law and incapable of giving rise to a valid order under the provisions of the Ordinance.
18. On the other hand Mr. M. Ibrahim Memon, the learned Additional Advocate‑General has submitted that the objectionable portions were annexed to the show‑cause notices and the extracts can be a substitute for the words specified in the show‑cause notices.
19. There is force in the contention of the learned counsel for the petitioners and we hold that the orders under the Ordinance cannot be sustained in the absence of compliance of requirement of its section 24.
20. These words, taken as they stand, might give rise to the belief that it is the duty of the Tribunal to scrutinize the newspaper, book or other document which is brought before it in an appeal under sections 48 and 49 and to determine whether any part of the newspaper, book or other document is of a nature specified in any clause of subsection (1) of section 24 of the said Ordinance and so interpreted this provision might be brought to nullify the requirement in subsection (1) of section 23 or subsection (1) of section 27 that in the notice which the Provincial Government sends to the publisher or keeper, making a demand of security, the Government shall state or describe the words, signs or visible representations which appear to it fall within subsection (1) of section 24. Indeed, an attempt to present an argument to this effect was made by the Additional Advocate‑General, in order to overcome the handicap that only certain passages had been cited in the notices sent to the petitioners out of a lengthy issue, which according to the learned A. A.‑G. for the respondent, was replete with matter falling within the various clauses of subsection (1) of section 24. The argument, however, proves to be devoid of substance.
21. Reference to subsection (1) of section 23 and subsection (1) of section 24 will show that it empowers the making of an order by notice not in respect of a newspaper, book or other document but in respect, of "words, signs or visible representations" contained in any newspaper, book or other document printed at the press in question. The Government is required to specify these "words, signs, or visible representations". We are of the opinion that the Provincial Government is required to specify these "words, signs or visible representations" and not the particular passages. We do not agree with the learned Additional Advocate‑General that mere enclosures of annexures or portions ofl objectionable extracts annexed to the show‑cause notices will be sufficient compliance with the provisions of the said Ordinance. Even the extract annexed to the notice cannot be a substitute for the "words, signs or visible representations" specified within the notice itself. This conclusion finds support from the case of Muhammad Muzaffar Khan v. The State P L D 1959 Pesh. 77 where a Special Bench of the erstwhile High Court of West Pakistan, Peshawar Bench, observed while construing section 7(3) of Press (Emergency Powers) Act (XXIII of 1951) the language whereof is in pari materia with the relevant provision of the Ordinance in question. Mr. Muhammad Shafi, J. (as he then was) held as follows:
22. "In the case in hand, it was not enough for Governor to just write in the notice that the offence was taken by him against the articles and the poems contained in thirteen typed pages. Some of the articles and the poems or at least portions thereof were absolutely harmless The Governor. therefore, should have intelligently considered the articles and the poems and detached from them the words which he thought violated the law. He should not have left it to the Courts to pick out such words from the articles and poems in question. It is possible to the Courts to hold that certain article or poem is not offensive, although the Governor thought otherwise. We have, therefore, arrived at the conclusion that the notice as it stands, is highly defective and cannot be enforced."
23. Mr. Abdul Hamid, J. (as he then was) held as follows:
24. "It was incumbent on the Government to quote from the printed material, those passages which fell within the purview of clauses (cc) and (d) of subsection (1) of section 4 of the Act. Instead of citing quotations from the printed material to show that they contain words of the nature described in those clauses, the notice simply said that the articles and poems published in seven issues of the paper contained words of the nature described in clauses (cc) and (d) of subsection (1) of section 4 of the Act.
25. Mr. Habibullah, J. (as he then was) held as follows:
26. "The language of subsection (3) of section 7 is so clear that it leaves no room for doubt, that the notice must state or describe the objectionable passages in the printed material. The underlying object is to furnish information to the publisher of the newspaper, as to what portions of the printed material are objectionable, so that he may not render his security liable to forfeiture by publishing material to which exception has been taken. It is quite obvious, that if the notice makes no reference to the objectionable passages, it will not be possible for the publisher to know, as to what material he should or should not publish in future. Therefore, the notice being defective, the impugned order cannot be enforced".
27. The above judgment of Peshawar Bench was followed by the Lahore High Court in the case of Sultan Muhammad v. Government of West Pakistan P L D 1976 Lah. 585. Mr. Nasim Hassan Shah, J. (now Judge of Supreme Court) held that:
28. "The impugned order suffers from another weakness as well. The objectionable portions of the books were not specified in the show‑cause notice, and in the absence of such a specification the notice became "insufficient and unenforceable".
29. The above cases were followed by the Division Benches of this Court in the cases of Musawat Ltd. Karachi v. Secretary Government of Sind, Home Department P L D 1980 Kar. 71 and Fahmida Riaz v. Government of Sind through Home Secretary 1982 C L C 713.
30. In the circumstances of the case we find that the impugned show‑cause notices dated 24‑1‑1985 cannot be sustained and the same are declared to be not in accordance with law and are held to be~ without any lawful authority and of no legal effect.
31. The impugned show‑cause notices were declared to be without lawful authority and of no legal effect by our short order dated 28‑1‑1986 and the above are the reasons for the same. Since the petitions succeed for technical reasons only, there will be no order as to costs.
32. A . A . Petitions allowed.