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Petitioner: MESSRS BAHO FILM CORPORATION VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN AND JUDGMENT
Court Name: Lahore High Court Judge(s): Rustam S. Sidhwa Title:MESSRS BAHO FILM CORPORATION vs ISLAMIC REPUBLIC OF PAKISTAN AND
JUDGMENT
Reported As: PLD 1981 Lahore 295 Result: Petition accepted Judgment JUDGMENT This is a writ petition by Messrs Bahoo Film Corporation, petitioners, for a declaration to the effect that the Notification of the Federal Government dated 26-1-1981 decertifying the Punjabi Film "Mauls Jat" is based on no evidence and is mala fide, arbitrary, without jurisdiction, illegal, and without lawful authority and of no legal effect and that the said film continues to remain a certified film and can be distributed and exhibited as hithertofore without any interference from the respondents. 2. The brief facts of the case are that the Punjabi Film "Mauls Jat", which was the maiden production of the petitioners, was submitted to the Central Board of Film Censors, Government of Pakistan, Islamabad, res--pondent No. 2, in 1978 for certification. First the Committee and there--after the full Board of respondent No. 2 refused to certify the film. The petitioners thereupon preferred an appeal to the Secretary to the Government of Pakistan, Ministry of Culture, respondent No. 1, whereupon the film was shown to the Appellate Committee, which recommended the said film for certification, without the imposition of any cuts or conditions. Accordingly, "U" certificate for unrestricted public exhibition of the said film for a period of five years for the whole of Pakistan was issued in favour of the petitioners on 1-1-1979. The original Censor Certificate does not show on its reverse that any portion of the said film was excised, for had the Board ordered any excision, particulars thereof would have been incorporated on the reverse of the said certificate, as is the practice of the Board. The certificate was not subject to any further conditions. The film was released in various cinemas in Pakistan on and from 9--1979. 3. On 11-2-1979 a Film Inspector attached with the office of respondent No. 2, together with Mr. Muhammad Iqbal Cheema M. 1. C., Rawalpindi, saw the said film at Nishat Cinema, Rawalpindi, and
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found that many additions and excisions had been made therein. They accordingly seized the print of the film and deposited the same in the malkhana of Police Station "D" Division, Rawalpindi. The District Magistrate, Rawalpindi, thereafter submitted the said film to the Central Board of Film Censors, Islamabad, for verification. 4. On 12-2-1979 a meeting of the Central Board of Film Censors, Islamabad, was held in which nine members attended, including the Chairman and Vice-Chairman of the Board. The members who attended and examined the film were ;-- (1) Mr. Anwar Abbas AnsariChairman. (2) Mr. S. Munawar AhmadVice Chairman. (3) Mrs. Wajia HashmiMember, (4) Brig. Khaway Rahat LatifMember. (5) Mr. A. Z. Zafar AlamMember. (6) Kh. Karamat Hussain Member. (7) Sh. Ishrat AliMember. (8) Mr. Sajjad Haider MalikMember. (9) Mr. S. Afzaal HussainMember. Zaidi. The members listed at Serial Nos. 5 to 9 were those who had earlier examined the film at the Committee and Board stags, who confirmed that the film contained the following unauthorised portions which were added to the picture after certification : - (1) The seene in the title in which Aalia appears at the Police Station. (2) In Aalia's dance, trampling of feet on blood is added. (3) Chakori shooting her brother Makhkha (Adeeb). (3) Dialogues at the Police Station where Daro Natni (Chakori) is taken with handcuff. (5) Scene showing the granting of bas of Daro Natni and the Jailor. (6) Scene in which convicts shout " (7) Scene showing the digging out of Gandasa from the grave. (8) Scene showing Noori (Mustafa Qureshi) ringing the alarm bell in the jail. (9) The Court scene. (10) The scene in which Maula Jat (Sultan Rahi) says that t (11) Addition of the scene in the hospital in which Noori Nat says to the Doctor to hand over certain amount of money to Sweeper. (12) Explosion of houses in .Jat's village. (13) Scene showing the carrying of the crops of Aku Nat (Asad Bukhari) alongwith gifts to Noori's house. (14) Addition to the scene of the last fight. (15) There is an excess of 356 Ft. (105 meters) than the certified length. Accordingly, the Board recommended to the Federal Government that the certification of the said film be cancelled. After retaining the 14A15 portions of the film which they considered had been added after certification, the Board returned the main print of the film to the owners of the cinema for exhibition. 5. On 6-3-1979 a Deputy Secretary of the Ministry of Culture issued a show-cause notice (Annexure 'F' to the petition) to the petitioners calling upon them to show cause why the censor certificate of the said film should not be cancelled in view of their contravention of rule 21(1) of the Censorship of Film Rules, 1963. On the same day, the District Magistrate, Lahore, also issued a notice (Annexure C to the petition) to the Shabistan Cinema, Lahore, calling upon them to show cause who their cinema licence should not be revoked under rule 111(1) of the Punjab Cinematograph Rules, 1975, for
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their violation of conditions 5(a) and 11(a) of their Cinematograph licence. Both the said notices listed item-wise the particulars of the 14/15 scenes which had been added to the film after its certification. On 7-5-1979 the petitioners filed their reply (Annexure G to the petition) to the show- cause notice issued by the Federal Government controvert the allegations made and raising certain legal issues. The petitioners inter alia asserted that no additions or alterations were made by them, that the film as shown was in the same condition as passed, that the members of the Censor Board did not like the decision of the Appellate Committee that had passed the film and had made unusual and extraordinary efforts to cause harm to them, that the Board had acted illegally in giving a verdict without associating them with any inquiry and the show-cause notice issued to them was not issued in accordance with the provisions of the Censorship laws. Likewise, the proprietors of the Shabistan Cinema, Lahore, also filed their reply to the show-cause notice issued by the District Magistrate, Lahore, to them. 6. On 3-9-1979 the Motion Pictures Ordinance, 1979, was gazetted repealing the Censorship of Films Act, 1973. 7. The District Magistrate, Lahore, after conducting an inquiry in respect of the proceedings initiated by him against the Shabistan Cinema, Lahore, under rule 111(1) of the Punjab Cinematograph Rules, 1976, came to the conclusion that the owners of the cinema, as the holders of a licence to run cinematographic films, had not themselves added any extra portions to the film and that the same may have been done by the Producer. Accord--ingly, he withdrew the show-cause notice against the Shabistan Cinema.' 8. Wan regard to the proceedings initiated by the Federal Government against the petitioners, the Federal Government found the reply of the petitioners unsatisfactory and on 23-9-1979 it informed the petitioner's accordingly and intimated to them that the Government proposed to cancel their censor certificate and that, if they so wished, they could avail of the opportunity to have a personal hearing on 3-10-1979 at I1 a. m. In their division, failing which necessary ex parte action under the law would be taken against the said film. On 3-10-1979 the petitioners sent a telegram requesting for an adjournment as their representative was sick. They requested that 14-10-1979 may be fixed for their personal hearing. This was accepted by the Ministry. On 14-10-1979 the petitioners appeared before the Deputy Secretary, Ministry of Culture, and denied the allegations. They took up the plea that as the film had last been certified by the-Appellate Committee constituted by the Secretary, that the film should be shown to the Appellate Committee before taking any decision. On 4-11-1979 the Federal Govern--ment wrote to the petitioners directing them to deposit within seven days the print of the film for display before the Appellate Committee. So that the same could be viewed by them with the earlier excised portions which they were retaining. The petitioners,- however, did not deposit the print. 9. On 20-11-1979 the Appellate Committed saw the 14/15 excised portions which the Board of Film Censors had excised from the main film after the Board had seen the film on 12-2-1979. The Appellate Committee comprised Mr. Justice K. M. A. Samdani, Law Secretary, Government of Pakistan, Mr. Rashid Ahmad, Additional Secretary, Population Planning, and Dr. Nisar Ahmad, Additional Secretary, Science & Technology. The three menibers of the Appellate Committee comprised the quorum as was required. Mr. Justice K. M. A. Samdani, Law Secretary, and Mr. Rashid Ahmad, Additional Secretary, Population Planning, by separate notes, both confirmed' that 13/14 scenes shown to them did not form part of the film `Maula .Jat' seen by them earlier. The third member, however failed to submit his report. On 10-2-1980 the petitioners sent a telegram (Annexure J to the petition) requesting the Deputy Secretary to fix a date for evidence in proof of the allegations levelled against them, to be recorded, under intimation to them. However, the Federal Government in the Ministry of Culture, decertified the said film on 18-2-1980, without hearing the petitioners, vide its order of the said date (Annexure `J' to the petition).
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10. On 25-2-1980 the petitioners filed a Writ Petition (W. P. No. 1989 of 1980) against the respondents challenging the said Notification of res--pondent No. 1 dated 18-2-1980. The said writ petition came up before a learned single Judge of this Court who, on 1-3-1980, suspended the impugned order. On 3-3-1980 the Secretary to the Government of Pakistan, Ministry of, Culture by a Notification of that date, withdrew his order dated 18-2-1980, in view of the fact it was pointed out him that the said order dated I8-2-1980 had been passed by him without giving a personal hearing to the petitioners. Accordingly, on 3-2-1981, when a said writ petition came up for hearing, the Deputy Attorney-General ma e a statement that the order dated 18-2-1980 had been withdrawn and the writ petition was disposed of as having borne fruit. 11. In the meantime, on 23-12-1980 the Ministry concerned had already written to the petitioners directing them to present themselves on 30-12-1980 for personal hearing before the Secretary to the Government of Pakistan, Ministry of Culture. On 28-12-1980 the petitioners sent a telegram to the Ministry requesting for an adjournment of the date, as the ceremony regarding confirment of the Graduate Awards was fixed, in which they would be busy. On receiving no reply from the Ministry concerned, Mr. Saif-ud-Din Chughtai, Advocate for the petitioners, appeared before the Secretary to the Govern--ment of Pakistan, Ministry of Culture, on 30-12-1980 and presented his clients' case. The Ministry's file shows that the learned counsel made the following submissions. First, that sections 9 and 11 of the Motion Pictures Ordinance, 1979, did not empower the Government to recall the film for re-exemination nor did it empower it to decertify it. Second, that the show cause notice should also have been issued under the signature of the Secretary to the Federal Government, Ministry of Culture. And third and last, that when the film was re-examined, the petitioners were not informed and that he (i. e., the lawyer) would like to cross-examine the. Members of the Appellate Committee, At the meeting, the Additional Secretary and the Section Officer of the Cultural Division were also present. After hearing the learned counsel, the Federal Secretary directed the decertification of the film and on 26-1-1981 the Federal Government passed the impugned Notification decertifying the film "Mauls Jat" for exhibition in the whole of Pakistan. Being aggrieved by the said Notification, the petitioners filed the present writ petition against the same, which is now before me for disposal. 12. The learned counsel for the petitioners, in support of his petition, made the following submissions; First, that action was taken under section 9(2) (a) of the Motion Pictures Ordinance, 1979, whereas the show-cause notice (Annexure F to the petition) issued by the Ministry on 6-3- 1979 to the petitioners referred to the violation of rule 21 of the Censorship of Films Rules, 1963, which ground was not covered " by section 9 (2) (a) of the Ordinance. In this connection it was submitted that even if it be assumed that action was taken under the old law under rule 21 of the Censorship of Films Rules, 1963, the said Rule was ultra vires of the Censorship of Films Act, 1963, and after the promulgation of the Motion Pictures Ordi--nance XLIII of 1979, became dead or, in any case, became ultra vires of the said Ordinance and that even if it be assumed that action was taken under section 9 (1) of the Motion Pictures Ordinance, XLIII of 1979, it was illegal . As action could only be taken under section 9 (2) and decertification could not be ordered on the grounds stated in the original show-cause notice. Second, that the order of decertification had to be passed by the Minister, after hearing the petitioners. And giving them an opportunity of cross--examining the witnesses who had deposed against them or to lead any evidence in their defence and that since neither the order of decertification was passed by the Minister nor did the Minister give the petitioners an opportunity of cross-examining the witnesses who bad made statements against them or to lead any evidence in their defence, though an opportunity was desired by the petitioners in that respect, which was refused, the order of decertification was illegal, null and void. In this connection, it was stat6d that there was no delegation under section 15 of the Motion Pictures Ordinance. 1979, in favour of the Secretary to act on behalf of the Federal Government and
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that, therefore, the Federal Secretary did not represent or could act on behalf of the Federal Government. Third, that the Board which examined the film on 12-2-1979 was actuated by malice against the petitioners in order to destroy the petitioners' business and, therefore, delibe--rately gave a false report against the petitioners for the decertification of the film. Fourth, that the whole film was not shown to the Appellate Committee do 20-11-1979 but only the 14/15 portions were shown to them and that, therefore, the Appellate Committee could not give a proper opinion as to whether the said portions were additions to the film earlier shown to them, as without the main film being shown with the additions annexed at their proper places, it was next to impossible for the Appellate Committee to arrive at a proper finding. Fifth, that the impugned Notification dated 26-1- 1981 was not issued in the name of the President, as was required by Article 99 of the Constitution of Pakistan, 1973. In the light of these cumulative submissions, it was pressed that the Notification dated 26-1-1981 be declared as illegal, null and void and as having no legal effect and that the release of the film be permitted. 13. Learned counsel for the respondents, who strongly opposed the petition, submitted that the action against the petitioner: could be supported both under the old law and the new one. According to him, the show-cause notice was originally given to them when the Cinematograph Act, 1918, the Censorship of Film Act, 1963, the Punjab Cinematograph Rules, 1976 and the Censorship of Films Rules, 1976, were in force and that under rule 21 of the Censorship of Films Rules, 1963, which were intra vires of the Censorship of Films Act, 1963, a picture could be decertified by the Federal Government, if it was exhibited in a form other than that in which it was certified. It was urged that assuming rule 21 of the Censorship of Films Rules, 1963, was not applicable to the case, then the action of the Federal Government could be supported under section 9 (1) of the Motion Pictures Ordinance, 1979, which gave unfettered authority to the Federal Government to pass any orders, as it thought fit, in relation to any certified film, without notice to the person to whom a. Certificate in respect of that film had been granted or to the Distributor or Exhibitor of such film. As regards the second submission made by the learned counsel for the petitioners. It was submitted that by virtue of sub-rules (3) and (4) of rule 3, sub-rules (1), (2) and (3) of rule 4 and sub-rules (8), (9) and (11) of rule 5 of the Federal Government's Rules of Business, 1973, the Secretary of the Culture Division was competent to take the decision on behalf of the Federal Government, without any reference to the Minister in Charge of the Division, and that even otherwise, by virtue of Standing Orders dated 24th June, 1980, issued by the Ministry concerned under the power given to it under sub-clause (f ) of sub-rule (9) of rule 5 of the Federal Government's Rules of Business, which were issued with the approval of the Minister in Charge, the business of the Federal Government under sections 7, 8 (6), 9, 11, 14 and 20 of the Motion Pictures Ordinance, 1979, was allocated to the Secretary to be exercised by him. In these circumstances, it' was submitted that the decertification order could be passed by the Federal Secretary, Culture. Division. As regards the allegation that the Minister did not give the petitioners an opportunity of cross-examining the witnesses who had made statements againstthe petitioners or an opportunity to lead evidence in their defence, it was submitted that under section 9 (1) of the Moton Pictures Ordinance, 1979, such an opportunity was not required to be grip, but that, in any case, the Federal Secretary had personally heard the petitioners, though their counsel, on 30-12-1980 before passing the impugned order.' As regards the necessity of permitting the petitioners to cross-examine the witnesses or lead evidence in their defence, on the authority of Government of Pakistan v. Shahid Afzal 19818 CMR101it was submitted that the same was not necessary and the personal hearing given to the petitioners was sufficient in the matter. As regards the third, fourth and fifth submissions made by the learned counsel for the petitioners, namely, that relating to the Board being motivated by malice against the petitioners, that the Appellate Committee was only shown the impugned 14/15 excerpts of the film on 20-11-1979 and not the
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whole film and that the Notification was not issued in the name of the President of Pakistan, the learned counsel for the respondents submitted that the same were not raised by the petitioners in their petition and, therefore, they could not be allowed to be raised in arguments. However, the learned counsel submitted that the Board had no malice against the petitioners and no affidavit of any responsible person was filed by the petitioners to prove such malice. As regards the Appellate Committee only being shown the 14/15 scenes of the additional portions of the picture which the petitioners had surreptitiously added after the same was certified, it was submitted that the petitioners were directed by respondent No. 2 by its letter dated 4-11-1979 to deposit the full print of the main picture so that the same could also be seen, but this was not done by the petitioners, with the result that the Appellate Committee was shown only the said 14/15 impugned scenes. In any case, it was submitted that the said screening before the Appellate Committee was done out of gratuitous regard and favour to the petitioners, in -view of the request of the petitioners that the Appellate Committee which had later seen and finally passed the picture should give their opinion, but otherwise, in law, the same was not necessary. As regards the objection regarding the Notification not being in the name of the President of Pakistan, it was submitted that section 9 (1) of the Motion Pictures Ordinance, 1979, itself directed the Federal Government to take action and that under rule 5 (9) (f) of the Federal Government's Rules of Business, 1973, the Federal Minister for Education in the Culture Division had himself on 2-7-1980 approved Standing Orders laying down the manner. Of disposal of cases relating to the Motion Pictures Ordinance, 1979, and had allocated to his Secretary cases covered under sections 7, 8 (6), 9, 11, 14 and '_'0 of the Motion Pictures Ordinance, 1979. Even . Otherwise, it was submitted that the Secretary of the Cultural Division, by virtue of rules 4 (2) and 5 (9) of the Federal Government---s Rules of Business, 1973, represented the Federal Government in all matters and he had passed the impugned order after hearing the petitioners. As regards the Notification not being issued in the name of the President of Pakistan, it was submitted that the same was not necessary as the legislature had delegated by Statute its executive authority to the Federal Government under section 9 (1) of the Ordinance and the same could be exercised by the Federal Secretary in the name of the Federal Government and that even assuming that the Notifi--cation had to appear in the name of the President of Pakistan, the omission of that name did not invalidate the Notification, if the Notification was properly authenticated under Article 99 (2) of the Constitution of Pakistan, 1973. 14. The main question that arises in this case is whether the Notification of the Fedwai Government dated 26-1-1981 decertifying the film is maintain--able under the provisions of the Censorship of Films Act, 1963, and the Rules framed thereunder or under the subsequent legislation, namely, the Motion Pictures Ordinance, 1979, that came into force on 3-9-1979 and the Censorship of Films Rules, 1980, that came into force on 8-3-1980. 15. According to the preamble to the Censorship of Film Act, 1963, the said Act was enacted to provide for the censorship of cinematograph films and for the decertification of certified films in the interest of law and order, the local film industry or any other national interest, and for matters incidental thereto or connected therewith. The various provisions of the Act which dealt with the decertification of films and penalties for certain offences, were as follows :-- Section 5. Suspension of certificate.-(1) Notwithstanding anything contained in subsection (3) of section 4, an authority may, (a) before a certified film is publicly exhibited within its local area, require it to be exhibited before such authority ; and (b) if it is of opinion that the film should not be publicly exhibited within its local area by order, suspend, pending the orders of the Central Government under subsection (4), the certificate in respect of that film granted by any other authority.
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(2) If a District Magistrate is of the opinion that a certified film should not be publicly exhibited within his district, he may, by order, suspend, pending the orders of the Central Government under subsection (4), the certificate in respect of that film granted by any. Authority. (3) A certified film shall, during the period of suspension of its certi--ficate under subsection (1) or subsection (2), be deemed to be an uncertified film in respect of the local area or district within the jurisdic--petition of the authority or District Magistrate making the order of suspension. (4) A copy of any order of suspension made under subsection (1) or subsection (2), together with a statement of the reasons therefore, shall forthwith be forwarded theCentral Government by the authority or the District Magistrate making the order, and the Central Government may either discharge the order or, by notification in the official Gazette direct that film shall be deemed to be an uncertified film in respect of a Province or such area or areas as may be specified in the notification. (5) Where, on receipt of a reference under subsection (4), or of its own motion, the Central Government is of the opinion that a certified film should not be publicly exhibited in Pakistan, it may, by notification in the Official Gazette, direct that such film shall be deemed to be an uncertified film in respect of the whole of Pakistan. Section 7. Power to decertify certified films.-Where the Central Government is of the opinion that a certified film, or class of certified films, should, in the interest of law and order, or in the interest of local film Industry, or in any other national interest, be decertified in respect of the whole or any part of Pakistan, it may, of its own motion, by notification in the official Gazette, direct that such film or class of films shall be deemed to be uncertified film or films in respect…
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