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Petitioner: SHAHID AFZAL VS Respondent: GOVERNMENT OF PAKISTAN THROUGH SECRETARY, JUDGMENT
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Gul Muhammad Khan Title:SHAHID AFZAL vs GOVERNMENT OF PAKISTAN THROUGH SECRETARY,
JUDGMENT
Reported As: PLD 1977 Lahore 117 Result: Appeal accepted Judgment JUDGMENT ' GUL MOIrAMMAD KHAN, J--The appellant is a Producer of the motion picture `Khatarnak'. It was duly certified by the Central Board of Film Censors, Lahore (hereinafter called the Censor Board), on 17th August 1974, after excising portions of six scenes, about 43 feet in length, of the film. The certified film was exhibited on 23rd August 1974, in eleven cinemas at Lahore and at 14 cinemas in the `mofassil' districts. It is stated by the appellant that the film had a tremendous success which aroused jealousy and ill-will of other Producers, Exhibitors etc., who started nefarious propaganda campaign, saying that the film in question was full of vulgarity and obscenity and abounded in undesirable scenes of sex and crime. There was a spate of protests in the press by individuals and certain organizations. 'Representations were also made to the local authorities as well as the Central Government. 2. Mian Hamid Yasin, M. N. A. Who was a member of the Censor Board which certified the film, saw its exhibition on 27th August in Naela Cinema, in the company of Mr. Abdul Rashid, Additional Deputy Commissioner, Lahore, and Sub-Inspector of Police Post, Lower Mall, Lahore. And being convinced that the film was not exhibited in the form in which it was certified, seized the entire length of the print from the cinema and took it away. Mian Hamid Yasin then made a written complaint to the District Magistrate, Lahore, who in exercise of his powers under section 5(2) of Censorship of Films Act, 1963 (hereinafter referred to as the Act) suspended the exhibition of the film in the District of Lahore, till such time as the appropriate authority issued fresh orders. On the same day he communicated, his action to the Central Government and solicited its order under section 5(5) of the Act. The appellant challenged that order in Writ Petition No, 1602 of 1974 on
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which a learned Single Judge of this Court granted an interim relief by keeping in abeyance the order dated 28th August of the District Magistrate, Lahore, till such time as the appropriate authority dealt with the representation of the members of the Censor Board. It appears from the show-cause notice as well as the record of the Central Government that the film was again seen on 29th August by seven persons including Mian Hamid Yasin, four of whom were members of the Censor Board, Lahore. They also sent their report to the Central Board of Film Censors, which in turn moved the Central Government to cancel the certificate of the film under -rule 21. The Central Government, instead, issued a notice to the appellant on 5th December 1974, requiring of him to show cause as to why the certificate of the film be not cancelled. The appellant received this notice on 10th. He was allowed seven days for reply which meant that he could send his reply uptil 17th September. The Central Government, however, without waiting for the reply, cancelled the certification of the film on 12th and -informed the appellant telegraphically. The appellant assailed that order in Another Writ Petition No, 1702 of 1974 in which it was alleged that the order decertifying the film had been passed orally and had not been notified. This Court, therefore, directed that the oral order shall not be implemented. The Central Government, on the other hand, withdrew its order of the cancellation of the certificate on the same date and directed issuance of a fresh show- cause notice. 3. The matter was again taken up by the Central Government which issued a show-cause notice dated the 23rd October 1974, to the appellant. The notice stated that it was being issued on receipt of a report from the Central Board of Film Censors. It also detailed all that material that had been excised by the Central Board of Films Censor but again included in exhibition. Some other material which had not been presented before the Censor Board at the time of certification was also alleged to have been included later in the film. The Producer/appellant was thus asked to show- cause as to why the certificate of the film be not cancelled. The appellant vide his reply dated the 31st October 1974, wholly denied all the allegations and submitted that the film had been exhibited exactly in the form in which it had been certified. He also denied having added with the certified film the excised or other unauthorised material. Mala fides on the part of Mr. Hamid Yasin were also alleged. It was stated that in order to oblige a rival section of the film industry, to avenge the failure of film 'Shikar' in which he is generally known to have a share, and to justify his high-handedness of raiding the cinema in the company of the Additional Deputy Commissioner etc., he had prevailed upon the District Magistrate Lahore, to issue an order under section 5(2) of the Act. To sum up his reply, the Producer/appellant in para. 7 of his reply stated as follows:- "7. To sum up the position is that- (a) the Press report published in the Daily Mashriq dated August 27, 1974 was false and inspired by the rival film producer ; (b) the orders dated 28-8-74 passed by the District Magistrate Lahore was procured from him by Mr. Hamid Yasin, M. N. A. In the circumstances stated above and the said order has already been held to be illegal by an order dated 3-9-74 of Mr. Justice Dr. Nasim Hassan Shah, Judge, Lahore High Court, Lahore, and (c) the representation by 7 signatories, which has been made the basis of show-cause notice under reply was prepared for being presented before Mr. Justice Dr. Nasim Hassan Shah in order to prejudice the learned Judge and to defeat our case in the High Court. Its contents otherwise are absolutely false and highly exaggerated. (d) The picture is being exhibited successfully in the form in which it had been approved by the Censor Board and the Censor Board cannot produce any evidence to disprove our statement. ' Under the circumstances the show-cause notice is wholly uncalled for and merits to be discharged." ' The appellant also stated that the ban on his film caused him a loss of rupees five lace.
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4. On receipt of his reply, the Central Government, in the Ministry of Education, referred the matter to the Minister to pass a final order. It was stated in the summary put up to the Minister that quite a few complaints about its vulgarity had been received by the District Magistrate, Lahore, Censor Board Lahore, and the Central Government. It also referred to the second showing of the film on 29th August 1974, which was seen by 7 persons including Mian Hamid Yasin. The summary also referred to the fact that after the receipt of the reply of the appellant to the show cause notice, the Central Government consulted the Law Division which opined that "there is enough material on the file to show that the film contains obscene material and that its decertification under section 5(5) of the Act will be justified." The file then remained under reference and discussion with the Central Board of Films Censor and the Law Division. On 22nd January 1975, the Law Division opined that cancellation could be legally made under rule 21(1) of the Censorship of Films Rules. This action seems not to have been implemented and further reference was made to the Central Board of Films Censors and the State Films Authority for their views. Finally on the 1st May 1975, the Director- General State Films Authority remarked that Film `Khatarnak' should be decertified. This was agreed to by the Vice-Chairman, State Films Authority and ultimately agreed to by the Education Minister. The order to decertify was then published vide Notification dated the 8th July 1975. The appellant challenged that order in Writ Petition No, 1623 of 1975 but the same was dismissed by a learned Single Judge of this Court on 2nd July 1975. He now challenges this order through the present intra- Court appeal. 5. It is contended by the learned counsel that the appellant's film had been decertified on the ground that it had been exhibited alongwith the excised portions as well as some unauthorised material which had never been shown to the Censor Board. The learned counsel read out sections 5 and 7 of the Act to say that firstly his film could be decertified only for such reasons as are given in section 7 and secondly in accordance with rule 22 of the Censorship of the Films Rules. The learned counsel for the respondent, on the other hand, submitted that as the appellant exhibited a certified film with some unauthorised material the case was governed by rule 21(1) under which action had been taken. He further submitted that rule 21(3) and not rule 22 applied to the situation and that as the appellant had been allowed a reasonable opportunity to submit a reply to the show-cause notice, the impugned action was perfectly valid and legal. Before we discuss the import of the above-noted legal provisions it will be useful to have a look at the Scheme of the Act. The object of the Act as given in the Preamble is to provide for the censorship of the films and for decertification of certified films in the interest of law and order, in the interest of local film industry or in any other national interest. This Act extends to whole of Pakistan. It constitutes an 'authority' for achieving its objects in section 4 and provides for an appeal to the Central Government if the applicant for a certificate feels aggrieved against the order of the 'authority' refusing to certify a film. The procedure regarding decertification is provided in section 5. The District Magistrate is vested with a power to temporarily suspend a licence and refer the question to the Central Government. The Central Government can suo motu also decertify a film under section 5(5) or section 7. Section 8 provides a penalty for exhibiting an uncertified film or a certified film without the mark of an authority or which has been altered or tampered with in any way since such mark was affixed hereto or for any other contravention of the Act or the Rules. The punishment comprises of fine upto Rs, 1,000 and Rs, 100 for each day that the offence is continued. The film may also be forfeited and the licence of the Cinema granted under rule 3 of the West Pakistan Cinematograph Rules, 1962, can also be cancelled upto three months. 6. The above resume of the provisions of law leads us to infer that in spite of the fact that a Censor Board has found a picture fit for exhibition, it might be objected to in a particular local area or by the general public orA other organizations. Sections 5 and 7 take care of such a situation. In that event the film may be re-examined by the Chairman or even the Board, to satisfy itself about the
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exceptions taken by the objectors, at the instance of the Central Government acting suo mom or on complaints. Rules 21 and 22 deal with the cancellation of the certificates and re-examination of the film before decertification. A close scrutiny of these two rules shows that provisions as contained in rule 21(1) apply to a situation where the film is exhibited in a B form other than the one in which it was certified. This would include a case where some unauthorised material including the excised portions is exhibited alongwith the certified film. However, before an action under rule 21(1) is taken the person concerned has to be given an opportunity of representing his case to the Federal Government. Rule 22 makes it absolutely clear that if the objection is about a certified film whether it has been conveyed by the District Magistrate under section 5(4) or whether it is in view of the objection having been raised by a member of the Board or an individual or an association etc. The Central Government may direct the Chairman to examine the film. The Chairman may, in turn, if he considers it desirable, lay it before the Board for consideration. The film may then be re-examined by the Board and its opinion conveyed to the Central Government which shall pass such orders thereon as it deems fit. Sub-rule (6) of this Rule also lays down that an opportunity of representation before the Central Government shall be allowed to the applicant. 7. The objection in the case in hand was that the film in question had been exhibited alongwith the excised and some other unauthorised material. There was thus no question of re-examination of the film under rule 22 as claimed by the appellant, but only a necessity to prove the bare allegations as made in the show-cause notice. We are, therefore, of the view that sections 5 and 7 read with rule 22 do not apply to the facts of the case. The contention of the respondents that rule 21(1) was applicable is, therefore, upheld. 8. There is, however, a condition precedent to the exercise of jurisdiction under rules 21 as well as 22 that the person to be affected must be allowed an opportunity of representing his case to the Central Government before any order prejudicial to his interest is passed. Rule 21(3) reads as follows :- "21(3)-No order under this rule shall be made to the prejudice of any person unless he has had an opportunity of representing his case to the Federal Government." What falls for determination is the scope of the phrase 'an opportunity of representing his case'. The dimensions of this opportunity cannot be laid down with exactitude. It will depend on the facts and circumstances of each case as to whether an opportunity provided to a petitioner was adequate or not in the given circumstances. It may, however, be broadly stated that in a case involving a pure question of law, an opportunity to make a written representation would be sufficient. In another case an oral hearing or a hearing coupled with a written representation may answer the statutory requirement. In yet other cases where proof of allegations calls for a factual inquiry or where the allegations are based on oral testimony of certain persons, the person to be affected must not only be allowed to know beforehand the material that is to be used against him but he should be allowed to cross-examine the witnesses and produce evidence in rebuttal if necessary. ' We may here refer to some observations of a Division Bench judgment of this Court in Abdul Majid's case (1), with advantage :- ' . It pained us to hear an argument from the bar which is to the effect that valuable rights of citizens can be taken away without even hearing them and permitting them to test the credibility of witnesses simply because it would cause inconvenience to certain authorities. We have always been told that convenience and justice have never been on speaking terms with each other. We may say it with all the emphasis at our command that it is not possible for us to permit justice to be sacrificed at the alter of convenience. If during the dispensation of justice the giving of a fair opportunity to a person accused causes inconvenience to the accuser, then the former cannot be sacrificed at the altar of the latter. If it is a question of convenience alone, the inconvenience
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caused to the accused in the absence of a fair opportunity, is much greater than the so-called inconvenience caused to the accusers in producing the witnesses for cross-examination......... 17. We have, therefore, no doubt in our mind that by not informing the petitioner of the evidence that was being used against him for the purpose of finding him guilty and further by not affording him any opportunity to cross-examine such witnesses, the witnesses who made those statements, because in this particular case that was the only method by which the veracity of their statements could be tested, the Committee transgressed the basic and essential requirements of natural justice." Lastly, every person is entitled to a legal representation, if he so chooses, unless it is expressly forbidden to him by a valid law. This right of representation is not only confined to meeting the case of the other side but also to represent his own case. In view of all that has been stated above the scope of this statutory provision may be wider but it is in no case less than the rule 'audi alteram partem'. In our view the essential requirements of this provision are that- (a) the prospective victim must have a prior adequate notice of the case, charge or allegations that he has to meet ; (b) he must have a reasonable opportunity to answer the case against him and put his own case ; (c) the decision must be made only on the allegations and the material of which the notice had been given; (d) he must have an unbiased and a fair hearing. ' After going through the record and hearing the learned counsel for the parties, we are of the view that the requirements of (a), (b) and (c) above hay not been fulfilled. The show-cause notice was initiated by Professor M. Iqbal Glll, Assistant Educational Advisor at the report of the Central Board of Film Censors which stated that the appellant had exhibited film Khatarnak' alongwith unauthorised material as detailed in the notice. In his written reply the appellant objected to the validity of notice by saying that the Federal Government alone was competent to issue such a notice and that Mr. Gill was not competent to do so. This objection has not been reverted to and even the Government record is silent. In any case, even if we have to accept (1) PLD 1970 Lah. 416 ' that it was a valid notice, it made it clear to the appellant that the Central Government wanted to take action for the acts of commission as detailed in the notice and none else. The summary placed before the Minister shows that his attention had been invited to material other than the one on which show-cause notice had been based. The material referred to the Minister in the summary comprised the following:- (a) Reports of the District Magistrates, Lahore, Lyallpur and Hydera bad ; (b) Reports of Mian Hamid Yasin and other persons who had seen the film on 29th August ; (c) Complaint of the Secretary, Pakistan Film Producers Association ; (d) Press cuttings and other complaints. ' A perusal of the record shows that the items at (a), (b) and (d) above migh have attracted application of sections 5 and 7 read with rule 22. The appal lent thus was not apprised of the case that was being considered by the. Minister and, therefore, could not be expected to make an effective representation. In Annamunthodo v. Oil Field Workers' Trade Union (1), a member of the Union was charged with breaking four of its rules, for breach of which there was no powers to expel. He attended the hearing which was adjourned, but chose not to attend the adjourned hearing. At that hearing he was proceeded against under another rule, breach of which did involve expulsion, and he was expelled. It was held that the expulsion was void as it was without giving notice of it to him. In Ridge v. Boldwin (2), the House of Lords ruled that a man is entitled to have the chapter and verse quoted against him and a full opportunity to rebut the allegation. In R. v. Industrial Injuries Commissioner Ex parte Howarth (3), the Minister had referred to a tribunal, a question as to the
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assessm ent of H's medical condition. The tribunal gave its decision on-another point altogether, which was annulled, as a new point had been taken, without bringing it to H's notice and without allowing him an opportunity to rebut. Another case which might bear some resemblance to the case in hand, was that of Errington v. Minister of Health (4). In that case the Minister, on a slum clearance order made by a local authority, heard the objections and made an inquiry before confirming the order. After the close of the inquiry there were various official communications and meetings between officials of the Ministry and of the authority as to the condition of the houses, which were inspected by them. No notice of these matters was given to the objectors. The Court of Appeal set aside the order of the Minister on the ground that consideration by the Minister of the material other than the one produced during inquiry, was against the rules of natural justice. Similarly in R. v. Deputy Industries Inquiries Commission Ex parte Jones (5), a difficult medical question arose during the hearing, with regard to a claim of benefit made by Jones. The Commissioner sought the assistance of a medical specialist. He sent him the case papers and read to him his notes of evidence without the knowledge of the parties. The Commissioner then passed an order on the advice of the medical specialist. It was held that the Commissioner was not entitled to continue privately to obtain evidence without notifying it to the parties so as to give them an opportunity of having:, (1) (1961) 3 All E R 621 (2) (1953) 2 All E R 66 (3) (1968) 4 K I R 621 (4) (1935) 1 K B 249 (5) (1962) 2 Q B 677 a further hearing or at least of commenting on the evidence. Precisely the similar view was taken by our Supreme Court in University of Dacca v. Zakir Ahmad (1). ' Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the 'elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and `to correct or controvert any relevant statement brought forward to his prejudice.' Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words, 'in order to act justly and to reach just ends by just moans' the Courts insist that the person or authority should have adopted the above 'elementary and essential principles' unless the same had been expressly excluded by the enactment empowering him to so act. But even so, we find it difficult to accept the contention that they must also be freed from the necessity of acting in a manner which excludes every reasonable possibility of unfair action being taken. This can only be achieved by observing certain formalities which have been designed to assure the minimum essential principles of justice and fairness, by at least telling the person sought to be punished or condemned what are the allegations against him and by giving him a fair opportunity to correct or contradict any relevant statement to his prejudice.......... (The above underlining is by us). The conclusion to be drawn from the above is that the person deciding a case-must inform the person of the allegations against him. He cannot act on undisclosed material or advice and that to validate his order he must inform the parties of all that material or evidence on which he would act. The facts given above show that the notice referred to above did not comply with these
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requirements and that in fact no show-cause notice was given by the authority competent to pass the order. 9. Rule 21(3) does provide that the person to be affected must be given an opportunity of representing his case to the Central Government. This is different from meeting the case that has been put up against him. The reply to the show-cause notice was, therefore, not such a representation and it could not exclude a hearing which is the requirement of the rule of natural justice. The Chief Justice Burger of the United States Supreme Court in Goldberg v. Kalley (2), held that an opportunity to submit a statement in writing was not enough, the right to be heard means the right to be heard in (1) PLD 1965 SC 90 (1) (1970) 39 U S 254 *Moro in italics] person. In Breen v. Amalgamated Engineering Union (1). Lord Denning suggested that a person is entitled to a hearing if he has some right, interest or legitimate expectation of which it would not be fair to deprive him without hearing him, whereas he need not be given a hearing if he is merely seeking a privilege, or, a privilege to which he has no particular claim. However, in another case Duravappah v. Fernando (2), a different approach was suggested. In that case a Minister who was so empowered under the law, dissolved a council on finding that it was not competent to perform its duties. This was done without affording the council an…
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