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Petitioner: Dr. AIJAZ HASSAN QURESHI VS Respondent: DISTRICT MAGISTRATE, LAHORE AND ANOTHER
Court Name: Lahore High Court Judge(s): Zakiuddin Pal Title: Dr. AIJAZ HASSAN QURESHI vs DISTRICT MAGISTRATE, LAHORE AND ANOTHER Case No.: Writ Petition No. 1316 of 1975 Date of Judgment:1975-11-27 Reported As: PLD 1976 Lahore 314 Result: Petition accepted
JUDGMENT
JUDGMENT This case has a chequered history and I need not dilate upon each and every fact. However, the necessary and relevant facts which led to the present case may be mentioned. It was on 9-1-1974 when the respondent addressed a letter, dated 7-1-1974, Annexure 'C', to the petitioner intimating him that the declaration filed by him for publishing and printing Weekly 'Zindagi' had become null and void under section 9(3)(ii) of the West Pakistan Press and Publications Ordinance, 1963, and the journal could not be published and printed with--out the fresh declaration under section 7 of the Ordinance. This order was challenged by the petitioner through Writ Petition No. 57 of 1974 in the High Court and the relief claimed therein was partly granted by my learned brother Attaullah Sapad, J. Vide his judgment, dated 10-7-1974, reported in PLD 1975 Lab. 859. It was held that the finding of the District Magistrate that the case of 'Zindagi' was covered by clause (ii) of subsection (3) of section 9 of the Ordinance was factually wrong and not sustainable. The cancellation of the publisher's declaration in the name of Dr. Aijaz Hassan Qureshi was found to be without lawful authority and of no legal effect. It was further held that the petitioner's prayer for a direction to the respondent (D. M., Lahore) not to interfere with his right to print and publish Weekly 'Zindagi' could not be uncondi--tionally acceded to; Dr. Aijaz Hassan had to file printer's declaration in terms of section 7 of the Ordinance before he was able to start publication of the Weekly 'Zindagi'. 2. According to the petitioner, in compliance with the said judgment of this Court he submitted printer's declaration under section 7 of the Ordinance on 18-7-1974, which was duly received by the respondent on the same date. Since no action was taken thereon for a considerable time, therefore, the petitioner again approached the High Court through Writ Petition No. 1603 of 1974 praying that the respondent may be directed to authenticate the printer's declaration submitted
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by him. In the said writ petition. The respondent in his report, submitted in compliance with the order of this Court, stated that the petitioner's declaration was being examined in accordance with law and further since the judgment passed by my learned brother Attaullah Sajjad, J. Had been challenged in Letters Patent Appeal, therefore, the same could not be decided earlier. However, in the meantime the Home Secretary, Government of Panjab, issued a show-cause notice to the petitioner on 11-11-1974 alleging that there was likelihood of using his proposed paper for defamation. The said notice was produced before the learned Judge seized of the matter. After hearing the parties the writ petition was disposed of in the terms stated below The overall conclusion is that at present the writ petition is premature, and until the Home Secretary decides the matter this petition cannot proceed. The said officer however must proceed to decide the matter as expeditiously as possible, and in no event later than one month from today. The petitioner in compliance with this order appeared before the Home Secretary firstly on 18-11-1974 and submitted his written reply to verbal queries made by the Home Secretary. The petitioner ultimately received the impugned order. Dated 15-3-1975, copy Annexure 'M' from the respondent refusing the authentication of Printer's declaration on the following ground The Government of the Punjab, Home Department, is satisfied on the basis of information in its possession, and after giving you an opportunity of being heard, that you are likely to use the proposed Urdu Weekly 'Zindagi', Lahore, for defamation, the authentication of your above declaration has, therefore, been refused under section 12(3) of the West Pakistan Pre 3s and Publications Ordinance, 1963." 3. Mr. S. M. Zafar, learned counsel for the petitioner has raised the following contentions (a) Since Publisher's declaration in respect of Weekly 'Zindagi' as well as declaration under section 4 of the Ordinance, as keeper of Press, was in existence, therefore, the filing of Printer's declaration under section 7 of the Ordinance was a mere formality while the respondent instead of dealing with the matter in such manner has made it an excuse to deny authentication of the petitioner's declaration. (b) The show-cause notice issued to the petitioner by the Home Secretary, Punjab, did not disclose any material to be used against him. All that was shown were certain articles appearing in Weekly 'Zindagi' and other journals which cannot be made basis of further apprehension and cannot be a ground for refusing authentication of Printer's declaration. Out of the ten articles, alleged to be containing defamatory material, five were published in the Weekly 'Zindagi' whereas the remaining were published in other journals and the same cannot be taken into consideration for refusing authentication. The explanation as submitted by the petitioner vide Annexures 'J' and 'K' to the Home Secretary has not been given due consideration by him. (c) The respondent No. 1 has not applied his mind independently to the facts of the case while refusing to authenticate the Printer's declaration and has merely relied upon the advice of the Provincial Government in a mechanical manner. According to law, the District Magistrate has to judge the material which has been relied upon by the Government as well as the defence of the applicant against such material and then decide the matter with regard to authentication. (d) The impugned order is not a speaking order and does not contain any material which has been made the basis of the refusal. (e) Except the two articles appearing in the Weekly 'Zindagi' of 13th-19th August, 1973, with regard to Wah Ordnance Factory, and Weekly 'Azan-e-Haq' for 13th of September, 1972, under the caption "Contempt of Court", proceedings about which have been compro--mised and the unconditional apology tendered by the petitioner has. Been accepted by the Court, none of the remaining articles in question contained any defamatory material, whatsoever, rather on the contrary all the articles contained genuine and healthy criticism. The persons who have been criticised in the said articles have never issued even any notice complaining against the unwarranted criticism leveled against them not to speak of any proceeding lodged by them.
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(f) The word `defamation' in the relevant provision of section 12(3) of the Ordinance has been used in context of its definition as given in section 499, P. P. C. And the exceptions as provided under the said provision will be applicable to this case, so far as determination of defamation or otherwise is concerned. 4. Mr. D. M. Awan, the learned Advocate-General, on the other hand, has contended that the District Magistrate is not obliged to act independently, in so far as the question of refusing authentication of Printer's or Publisher's declaration is concerned ; he has to act on the advice of the Government which has alone to be satisfied with regard to the ingredients as provided by the relevant provision. If after hearing a party the Govern--ment feels satisfied that he is likely to act in a manner prejudicial to the defence etc. And for defamation and conveys its opinion in this behalf to the District Magistrate, then he has no option but to act accordingly. He, in this regard, has relied upon Zafarullah Khan v. The Province of West Pakistan (PLD 1969 Quetta 1) in order to show that the D. M. Has no other option but to comply with the decision of the Government. He bas also argued that the articles as contained in the relevant issues of the Weekly, as referred to above, contain defamatory material which is necessary to be taken into consideration while determining whether a person is likely to act in a manner prejudicial to the defence or external affairs or for defamation. His past conduct in this behalf cannot be ignored. According to him, the authentication of declaration is not a formality, rather on the contrary, unless the Government is satisfied that the person concerned will not act, as feared in the relevant provision, such declaration cannot be granted. It has further been submitted by him that the word, 'defamation' as-- used in section 12(3) of the Ordinance relates to dictionary meaning and not the meaning as given in section 499 of the Pakistan Penal Code. According to him the said provision is a clear departure from the ordinary law and therefore the word `defamation' should not be interpreted according to the definition as given in the Pakistan Penal Code. It is contended that so far as the information in the possession of the Government is concerned, it relates to various articles published in the Weekly journals. According to him, in the presence of the said articles no further information is required by the Government for its satisfaction, as it will be based upon the contents of the articles as to whether they constitute defamation or not. 5. Before the merits of the case-as to whether the contents of the various articles in question constitute defamation, are adverted to it will be better to examine as to whether the impugned order can be passed under section 12(3) of the Ordinance. The authentication of the Printer's declaration, as mentioned above, has been refused on the ground that Weekly 'Zindagi' is likely to be used by him for defamation purposes. It has also been mentioned in the order that since the Government is satisfied on the basis of the information in.. Its possession with regard to that, therefore, the authentication of the declaration cannot be granted. It is to be seem as to which information was in possession of the Government on the basis of which it felt satisfied in taking such a drastic action against the petitioner. It is not denied, as held in various authorities which need not be referred to, that such satisfaction of the Government is subject to judicial review by this Court. It is to be seen as to whether the information/ material, on the basis of which the Government has felt satisfied in taking.. Such action, is sufficient which can justify the impugned order. 6. Apart from the two articles appearing in Weekly 'Zindagi' of 13th-19th September, 1972, and Weekly 'Azan-e-Haq' of 13th September, 1972, proceedings about which have been pending before the High Court as well as before the Supreme Court, the Government had no other material except the articles themselves. Mr. S. M. Zafar has taken shelter under the three exceptions of section 499 of the P. P. C., which read as follows : "First Exception.-It is not defamation to impute anything which is, true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the
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public good is a question of fact. Second Exception.-It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as --his character appears in that conduct, and no further. Third Exception.-It is not defamation to express in good faith any-- opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct and no further. It is contended that since the criticism in the said articles has been made for the public good and in good faith and since the facts mentioned in the said articles are true, therefore, no case of defamation can be made out in respect thereof. 7. The question which arises for determination at this stage is as to whether the word 'defamation' has been used in section 12(3) of the Ordinance :in context of the definition of the word given under section 499 of the Pakistan Penal Code and as such the offence 'defamation' as mentioned therein is covered by the said provision or not. It has been vehemently argued by the learned Advocate- General that the word `defamation' has been used in context of the dictionary meaning alone and not m, any other connotation. He has, however, conceded during the arguments that other offences as mentioned in the relevant provision, such as acts .Prejudicial to defence, external affairs, security of Pakistan, public order, public safety, and incitement to the commission of any cognizable offence involving violence are covered by the relevant provisions of the P. P. C but, according to him, the offence of defamation has not been referred -to in context thereof. If his argument, advanced in his behalf is accept then the logical conclusion would be that the other offences as mentioned in A section 12(3) of the Ordinance are also not covered by the relevant provisions .Of the P. P. C., rattier on the contrary they should also be given the .Dictionary meaning which evidently is not the purpose of the Legislature. It will be seen that all such words, referred to above, have attained by this time definite meanings in terms of the definitions as given in the Pakistani-- Penal Code. The Ordinance in question is a preventive measure and as sub the words 'acts prejudicial to the defence, external affairs, security of Pakistan, public order, and defamation etc.' have been used in the terms employed in Pakistan Penal Code and not otherwise. This view gains .Strength from the provisions as contained in sections 23 and 24 of the -Ordinance. All the offences as mentioned in section 24(1) are covered by the relevant provisions of Pakistan Penal Code. The above discussion would show that the word 'defamation' has been used in section 12(3) of the .Ordinance in context of offence as referred to in section 499, P. P. C. And ;it is hereby held as such. 8. When the offence of defamation, as mentioned in section 12(3) of the Ordinance is covered by the relevant provision of the P. P. C., the question would be as to what necessary material was before the Govern--ment to decide that the contents of the articles, except the two as referred to above, constituted defamation. It has been vehemently argued by the learned Advocate-General, as stated above, that there was no need to have further information in addition to the articles in question as they themselves contained defamatory material. The question is if any of the said writings is covered by the exceptions under section 499, P. P. C. And has been made in public interest and in good faith then how it can b determined in the absence of any further information from the person, concerned named in the article, as to whether the writings amount to offence of defamation and how it can be determined in the absence of the relevant information from the person concerned that the facts mentioned in the article are not true and are not for the public good and have not been made' in good faith. It is not denied that except in the case of said two articles no person named in the remaining articles ever protested or proceeded against the petitioner under the relevant provision of law for defamation or any other offence. The Government has also not denied that before refusing to authenticate the declaration the persons concerned and specifically ,named in the said articles were never contacted by it, nor any information was
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sought there from : as to whether the allegations leveled against them were correct or not. I fail to understand as to how it can be inferred in the circumstances of the present case that the articles as referred to earlier constitute defamation and the petitioner, therefore, is likely to use the Weekly Zindagi for defamation purposes. It has been held as follows in Sangbad Ltd. And another v. The Deputy Commissioner, Dacca and others PLD 1963 Dacca 463. "It is evident from the provision of section 12(2) that each and every item there under clearly and unmistakably refers to the existence of facts on the basis of which alone the Deputy Commissioner is to derive his satisfaction. The word "satisfaction" itself connotes that the facts must be such as to afford a reasonable basis for the satisfaction, and it, therefore, excludes mere conjecture, rumour or caprice. An ordinary prudent parson is not expected to act merely on conjecture, rumour or whim. Section 12 has clearly put the Deputy Commissioner under an obligation to authenticate the declaration. He has, however, been directed not to authenticate unless he is satisfied as to the existence of certain conditions precedent to the determination which must be based on facts. Section 12(2) leaves no scope for the Deputy Commissioner to proceed merely on the basis of his information totally divorced from facts. For example, in section 12(2)(a), the Deputy Commissioner must be satisfied that the proprietor has in fact authorised the making of the declaration or not ; in clause (b) of the subsection he must be satisfied as to the actual publication of any other newspapers in the Province having the same title as the newspaper proposed to be published ; in clause (c) he must be satisfied that the printer and publisher was nut actually convicted of a particular kind of offence. Similarly in clause (d) the Deputy Commissioner must satisfy himself on the basis of hard facts whether the publisher has in fact the requisite financial resources. In our opinion this clause clearly contemplates an enquiry at which the publisher can be excluded only at the risk of stultifying the enquiry. Mr. Kamal Hussain has rightly argued that the publisher is the best person to satisfy the Deputy Commissioner about any doubts he may have on the former's financial resources only if the Deputy Commissioner calls upon him to resolve the doubts and that any enquiry behind the back of the publisher is unfair to him and the newspaper concerned. Any information adverse to the publisher collected by the Deputy Commissioner may turn out to be baseless if the publisher is confronted with them and given an opportunity to explain them. In such circumstances it is inconceivable that a responsible officer of the position of the Deputy Commissioner would act merely on untested information. In our opinion the Legislature has excluded any scope for such imprudent or unreasonable action. To revert to the section we think that clause (e) of section 12(2), too, requires the satisfaction to be on the basis of facts whether the editor possesses reasonable educational qualifications or has bad adequate training or experience in journalism. Lastly, clause (f) seems to us to be clear that the satisfaction must be based on the actual fact that the printer or publisher is a person about whom the Government is satisfied, on the basis of information in its possession that he is not likely to act in a manner prejudicial to the defence, or external affairs or security of Pakistan. Prejudicial act of no other description is relevant for the purpose of this clause. The subject-matter of the case referred to above was a petition under Article 98 of the 1962-Constitution challenging the order of District Magistrate, Dacca, refusing authentication of the printer's declaration under section 12 of the Press and Publications Ordinance (Ordinance No. XV) of 1960. The relevant provision as contained in section 12 of the said Ordinance reads as follows "12. Authentication of the declaration.-(1) Subject to the provisions of subsection (2), each of the triplicate 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-
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(a) the proprietor of the newspaper if he himself is not the printer or the publisher has authorized 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 same 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; and (f) the printer or publisher is a person about whom the Govern--ment is satisfied, on the basis of information in its possession that he is not likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan. The provision as contained in section 12(2)(f ) of the Ordinance of 1960, as referred' to above, is very much identical to the provision as contained in section 12(3) of the West Pakistan Press and Publications Ordinance, 1963. In the Ordinance of 1960 the District Magistrate was empowered to authenticate the declaration if the Government was satisfied on the basis of information in its possession that the person seeking such declaration was not likely to act in a manner prejudicial to the defence, external affairs or security of Pakistan. The satisfaction in this provision is also based upon the relevant information with regard to the offence likely to be committed by the person concerned. The same is the position with the Ordinance of 1963 of West Pakistan whereby the satisfaction of the Government is also to be based upon information with regard to the offence likely to be committed by the person concerned. It has been held in the Dacca case that the authority concerned cannot proceed merely on the basis of information totally divorced from facts, as the provision contained in section 12(2) of the said Ordinance and each and every item there under clearly refers to existence of facts on the basis of which alone the authority concerned is to drive its satisfaction, 9. It may be true, so far as the facts of the present case are concerned, that some of the persons named in some of the articles might be feeling belittled in the eye of public or their image might have been lowered on account of such writings, but the question is whether such writings are divorced from facts, and if not then how it can be said that they constitute offence of defamation. More or less similar view has been taken in Farid Ahmad v. The Additional Deputy Commissioner (General) and 2 others (PLD 1970 Dacca 422). It is interesting to notice that this case was also under section 12(2) of the Press and Publications Ordinance (Ordinance No. XV) of 1960. A declaration was filed under section 7 of the Ordinance for publication of a newspaper but the same was refused to be granted by the authority concerned by passing a short order without assigning any ground. It was held that the satisfaction as referred to in section 12(2) of the Ordinance must necessarily be an objective satisfaction, or in other words the order of the District Magistrate must be a speaking order. While referring to clause (f ) of the Ordinance, it was held that it leaves no doubt that law demands that the Government in the first instance must have information in its possession to satisfy itself that the declarant is not' likely to act in a manner prejudicial to either defence or external affairs or security of Pakistan. If the information to be the basis of satisfaction in such a case is not to be divorced from the facts then it is obligatory for the Government to have full picture of the case by ascertaining as to how far the facts mentioned in some objectionable articles are correct. The functionary concerned of the Government has to examine the alleged defamatory material in the light of the provision as contained in section 499, P. P. C. And then find out as to whether any case for defamation is made out or not. If after D having adopted such procedure and after hearing the party concerned he comes to the conclusion that such article
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contains defamatory material, then he may conclude that the person making the declaration may act in a defamatory manner in using his newspaper/journal. The order in question has not been passed in compliance with the said provision of law. 10. The next case which lends support to this view is Shaukat Hussain Shaukat v. The District Magistrate, Lahore (PLD 1573 Lah. 557). This is a case under section 12(3) of West…
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