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Official Citation: 2024 SHC 143
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 2646/2024 (D.B.) Sindh High Court, Karachi - Shahid Hussain and Others (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 143. In this matter between Const. P. 2646/2024 (D.B.) Sindh High Court, Karachi - Shahid Hussain and Others (Petitioner) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Const. P. 2646/2024 (D.B.) Sindh High Court, Karachi CITATION: 2024 SHC KHI 143 PARTIES: Shahid Hussain and Others (Petitioner) ORDER DATE: 22-NOV-24 BENCH: Hon'ble Chief Justice Mr. Justice Muhammad Shafi Siddiqui, Hon'ble Mr. Justice Jawad Akbar Sarwana(Author) A.F.R: Yes ------------------------------------------------------------ Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Present: Mr. Justice Muhammad Shafi Siddiqui, CJ Mr. Justice Jawad Akbar Sarwana
Constitution Petition No. D – 2646 of 2024
Shahid Hussain & Four (4) Others v. M/s PEMRA & Three (3) Others
Petitioners : (1) Shahid Hussain, (2) M. Amin Anwar, (3) Muhammad Asghar, (4) Irfan-ul-Haq and (5) Shoukat Korai, through M/s Muhammad Tariq Mansoor, Advocates
Respondent Nos.1 & 2 : M/s PEMRA through its Chairman, The D.G. Operations Broadcast Media PEMRA, through Mr. Amel Khan Kasi, Advocate.
Respondent Nos.3 : The Federation of Pakistan, through its Secretary Ministry of Information and Broadcasting, Government of Pakistan, through Mr. Zia-ul-Haq Makhdoom, Additional Attorney General, Mr. Khaleeq Ahmed, D.A.G and Ms. Wajiha Mehdi, D.A.G.
Respondent Nos.4 : Pakistan Broadcaster Association (PBA) through Nemo
Constitution Petition No. D – 2802 of 2024
Pakistan Federal Union of Journalists (PFUJ) v. The Federation of Pakistan & Two (2) Others
Petitioner : Pakistan Federal Union of Journalists (PFUJ), through its Secretary General, Mr. Alauddin Khanzada through M/s Abdul Moiz Jaferii and Aadil Lalani, Advocates
Respondent No.1 : The Federation of Pakistan, through its Secretary Ministry of Information and Broadcasting, Government of Pakistan, Through Mr. Zia-ul-Haq Makhdoom, Additional Attorney General, Mr. Khaleeq Ahmed, D.A.G and Ms. Wajiha Mehdi, D.A.G.
Respondent Nos.2 & 3 : Pakistan Electronic Media Regulatory Authority (PEMRA) through its Chairman, and The Director General (PEMRA).
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Operations Broadcast Media, through Mr. Amel Khan Kasi, Advocate.
Dates of Hearing : 12.08.2024, 05.09.2024, and 09.10.2024
Date of Judgment : 22.11.2024
C O M M O N J U D G M E N T
JAWAD AKBAR SARWANA, J. : The petitioners, who are journalists / professionals / “Court Reporters” for various Satellite TV Channels, and the Pakistan Federal Union of Journalists (“PFUJ”) , in these two petitions, claim to be aggrieved persons and have impugned two (2) Directives of the Pakistan Electronic Media Authority (“PEMRA”)(Respondent No.1) issued under the Pakistan Electronic Media Regulatory Authority Ordinance (“PEMRA Ordinance”), 2002,1 to Satellite TV Channel Licensees, namely, Directive No.3(07)/2024/OPS- BM/5485 dated 21.05.2024 (Islamabad) 2 and a Corrigendum of even date (Islamabad) 3 regarding handling news and current affairs programmes' content concerning sub-judice matters and court proceedings. These petitions are decided by way of a common judgment.
2. Counsel for the petitioners contend that the impugned directives cannot be enforced as they result from an illegal process which is covered neither by the PEMRA Ordinance, 2002 nor the Pakistan Electronic Media Regulatory Authority Rules (“PEMRA Rules), 2009 . Counsel argued that the Directives are arbitrary, patently illegal, unconstitutional, and tantamount to imposing a complete and total ban on Court reporting of sub-judice matters. They seek declarations to this effect and pray that the impugned Direc tives be cancelled and/or set aside. Counsel for PEMRA vehemently denies contentions of the Petitioner Counsel. He submits that the directives have been issued in accordance with law, are proper, and are currently being enforced by
1 Pakistan Media Regulatory Authority Ordinance, 2002 as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2023 (as of 16.08.2023) 2 Marked and reproduced hereinbelow as Exhibit “A” 3 Marked and reproduced hereinbelow as Exhibit “B”
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Respondents, PEMRA. He argued that they introduced nothing new and simply clarified PEMRA’s Code of Conduct - 2015.
3. We have heard Counsels and the learned AAG and perused the documents on record. To address the challenge raised by the petitioners against the impugned Directives, we propose to discuss the content of the impugned directive (s), its status, compare it to the provisions of the Electronic Media (Programmes and Advertisements) Code of Conduct – 2015 (hereinafter referred to as “the Code”) , which are currently in force, examine if the impugned Directives have been issued within the framework of the relevant laws and regulations and case law applicable to the case at hand and finally assess if the impugned Directive(s) are violative of Articles 4, 18, 19 and 19-A of the Constitution of Pakistan, 1973.
4. The extract of the two impugned Directives, Exhibit “A” and “B”, are reproduced hereinbelow.
Exhibit “A”
“PAKISTAN ELECTRONIC MEDIA PEMRA Headquarters, REGULATORY AUTHORITY Mauve Area, ISLAMABAD G-8/1, Islamabad, Ph: 051-9107176
Islamabad, the 21st May, 2024 No.3(07)/2024/OPS-BM/5485
All Satellite TV Channel Licensees (News and Current Affairs & Regional Languages Channels)
Subject: Directives – Discussions on Sub-Judice matters
Reference is invited to specific provisions of Electronic Media (Programmes and Advertisements Code of Conduct, 2015 on the subject matter are reproduced as under:
4. News and current affairs programmes :– The licensee shall ensure that :-
(3) Programmes on sub -judice matters may be aired in informative manner and shall be handled objectively:
Provided that no content shall be aired, which tends to prejudice the determination by a court, tribunal or any other judicial or quasi -judicial forum.
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(6) Content based on extracts of court proceedings , police records and other sources shall be fair and correct.
It is pertinent to mention here that the Supreme Court of Pakistan has laid down certain principles with regard to discussion on sub -judice matters in its judgment passed in suo Moto Case No.28 of 2018 dated September 12, 2018 (reported as 2019 PLD SC 1) and the same was communicated to satellite TV channels on various occasions. Except of relevant part of the referred judgment is reproduced below: . . .
3. Moreover, in judgment passed by the Supreme Court of Pakistan in civil Petition No.3258 of 2017 has made the following observation:
40. During the course of hearings we observed that whilst most of the media acted maturely and fairly reported the proceedings, there were some who violated the parameters of factual reporting and also broadcasted and printed views of persons who were interested in a particular outcome of this case. The media should not dilate on a sub judice case, rather should only accurately report the proceedings . However, once a judgment is announced it may be analyzed, evaluated or critiqued.
4. It has been observed with the concern that satellite TV channels, in talk shows/news bulletins/tickers, while reporting court proceedings are airing content out of context. Channels are airing exaggerated versions and statements of legal counsels in ord er to spread despair, sensationalism and to attract high ratings. Furthermore, observations made by the judges have been broadcasted without mentioning the context and without waiting for the court order/decision. Therefore, airing of such content shows ne gligence on the part of editorial boards of the TV channels.
5. Whereas, all PEMRA licensees are obliged to comply with the provisions of PEMRA Ordinance 2002, PEMRA Rules, Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, Regulations, terms and conditions of the license and directives issued by the Authority.
6. Foregoing in view, all Satellite TV channel licensees in the genre of “News and Current Affairs” and “Regional Language” are hereby directed that no content, including commentary, opinions or suggestions about the potential fate of such sub judice matter which tends to prejudice the determination by a court, tribunal, etc., shall be aired. Further TV Channels are directed to refrain from airing tickers/headlines with regard to court proceedings till the final order.
7. All satellite TV channel licensees are once again directed to ensure strict compliance to the PEMRA laws and Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 and follow the principles of law as laid down in the judgment of the Hon’ble Supreme Court of Pakistan passed in Suo Moto Case No.28 of 2018 (reported as 2019 PLD SC 1) in letter and spirit.
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8. In case of any violation observed legal action under Section 27, 29, 29 -A and 30 of PEMRA Ordinance shall be initiated.
9. This issues with approval of the Chairman PEMRA.
Director General (Operation-Broadcast Media)”
Exhibit “B”
“PAKISTAN ELECTRONIC MEDIA PEMRA Headquarters, REGULATORY AUTHORITY Mauve Area, ISLAMABAD G-8/1, Islamabad, Ph: 051-9107176
Islamabad, the 21st May, 2024 No.3(07)/2024/OPS-BM/5485
All Satellite TV Channel Licensees (News and Current Affairs & Regional Languages Channels)
CORRIGENDUM
Reference; Directives with regard to discussions on sub-judice matters issued vide letter No.3(07)/2024/OPS-BM/5485, dated May 21, 2024.
2. It is conveyed that the text of Para-6 of directives under reference may please be read as per the following amended text:
Foregoing in view, all Satellite TV channel licensees in the genre of “News and Current Affairs” and “Regional Language” are hereby directed that no content, including commentary, opinions or suggestions about the potential fate of such sub judice matter which tends to prejudice the determination by a court, tribunal, etc., shall be aired. Further TV Channels are directed to refrain from airing tick ers/headlines with regard to court proceedings and shall only report the written orders of court. However, whe re court proceedings are broadcast live, such proceedings may be reported by the TV channels.
3. This issues with approval of the Chairman, PEMRA.
Director General (Operation-Broadcast Media)”
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5. At the outset, it is clear from the impugned Directives that the second Directive, titled “CORRIGENDUM”, amended and replaced paragraph 6 of the first (initial) Directive. Thus, the first (initial) Directive is now modified by the “CORRIGENDUM” to the extent of paragraph 6 and stands merged into the first (initial) Directive. All references made by us in this Common Judgment to the “impugned Directive”, means
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both the Directive dated 21.05.2024 and the merged “CORRIGENDUM” dated 21.05.2024.
6. One of the arguments the Counsel for PEMRA raised was that the impugned Directive(s) did not introduce anything new and clarified the position already clearly set out in the Code and judgments of the Supreme Court . Accordingly, it may be relevant to compare the impugned Directive(s) with the relevant provisions of the Code relating to court proceedings, particularly the operative paragraph of the impugned Directive, that is, paragraph 6 of the Directive and the Code both placed side by side to each other in tabular format. The resultant tabular comparison is shown below, albeit with certain edited changes to accentuate the similarities, overlaps and differences.
Column “A”
Column “B”
Electronic Media Code of Conduct – 2025 (Provisions relating to sub- judice matters/court proceedings)
Impugned Directive (1 of 2) issued by PEMRA as modified by the Corrigendum
(Paragraph 6 only)
Clause 4. News and current affairs programmes: - The licensee shall ensure that :-
(1) . . .
. . .
(3) Programmes on sub -judice matters may be aired in informative manner and shall be handled objectively.
Provided that no content shall be aired, which tends to prejudice the determination by a court, tribunal or any other judicial or quasi-judicial forum.
. . .
Foregoing in view, all Satellite TV channel licensees in the genre of “News and Current Affairs” and “Regional Language” are hereby directed that no content, including commentary, opinions or suggestions about the potential fate of such sub judice matter which tends to prejudice the determination by a court, tribunal, etc., shall be aired. [Portion - “B1”]
Further TV Channels are directed to refrain from airing tickers/headlines with regard to court proceedings and shall only report the written orders of court. [Portion - “B2”]
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(6) Content based on extracts of court proceedings, police records and other sources shall be fair and correct.
(9) News or any other programme shall not be aired in a manner that is likely to jeopardize any ongoing inquiry, investigation or trial.
However, where court proceedings are broadcast live, such proceedings may be reported by the TV channels. [Portion - “B3”]
---- xxx --- xxx ---
7. The impugned Directive contains two operative parts. The first operative part is found in paragraph 6 of the impugned Directive, and the second operative part is contained in paragraph 7. The references to the impugned Directive in this Common Judgment ar e to the first operative part of the impugned Directive, which is paragraph 6. It may be noted that paragraph 7 of the impugned Directive directs all satellite TV channel licensees to follow the principles laid down in the judgment of the Supreme Court in In the matter of: Suo Motu Case No.28/2018 in letter and spirit. However, paragraph 7 of the impugned Directive gives direction to follow the “principles of law” but does not state specifically where these principles are to be found in the impugned Directive, say, for example, the roman numerals (i) to (x) on pages 30 and 31 of the reported Judgment .4 The ratio and principles of law are detailed throughout the Suo Motu judgment, not just on pages 30 and 31 . Further, paragraph 2 of the impugned Directive, reproduces paragraph 19 of the Suo Motu judgment as “excerpts of relevant part of the referred judgment”. Paragraph 2 does not state that paragraph 19 is a directive of PEMRA. Further, paragraph 19 of the Suo Motu judgment itself does not describe the roman numerals (i) to (x) are “principles of law”. Thus, the so -called “principles of law” of paragraph 7 are not expressly identified in said paragraph of the impugned Directive. However, as the Suo Motu Case is important in the context of the Directive , therefore, while discussing paragraph 6 of the impugned Directive, we have cross- referenced other paragraphs of the Suo Motu Judgment, which are not
4 In the matter of Suo Motu Case No.28 of 2018, PLD 2019 SC 1
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reproduced in the impugned Directive as well as the relevant clauses in the Code.
8. It may not be out of place to mention here that the current Code of Conduct – 2015 had its genesis based on a consensus reached between the Pakistan Broadcasters Association (PBA), other stakeholders and the Federal Government pursuant to a case before the Supreme Court of Pakistan in Hamid Mir and Another v. Federation of Pakistan and Others, etc. (Constitution Petition No.105/2012). The Code also enjoyed the blessings of an order of the Supreme Court dated 18.06.2015, was duly notified by the Federal Gove rnment and incorporated into the Rules. About three years later, a three -member bench of the Supreme Court of Pakistan in In the matter of: Suo Motu Case No.28 of 2018 , PLD 2019 SC 1, once again, scrutinised the clauses of the Code, particularly its Clause 4. In paragraph 14 of the said Judgment, the Apex Court made the following observations regarding Clauses 4(3) and 4(6) of the Code:
“While Clause 4(3) of the Code of Conduct allows programmes on sub judice matters to be aired, thereby guaranteeing the rights enshrined in Articles 19 and 19A of the Constitution mentioned above, the regulation and reasonable restrictions imposed are that such programmes are aired in an informative manner, are handled objectively [Clause 4(3) of the Code of Conduct], and that no content is to be aired which would tend to prejudice the determination by a Court, Tribunal or any other judicial or quasi-judicial forum [Proviso to Clause 4(3) of the Code of Conduct]. Furthermore, Clause 4(6) of the Code of Conduct states that content based on extracts from court proceedings, police records and other sources shall be fair and correct, while Clause 4(9) thereof prohibits news or any other programme from being aired in a manner that is likely to jeopardize any ongoing inquiry, investigation or trial. Therefore, the foregoing clauses ensure that the freedom of speech and right to information (Articles 19 and 19A of t he Constitution) are protected, and at the same time provide that the discussion of sub judice matters must be conducted in a manner which does not negatively affect another person's fundamental right to be dealt with in accordance with the law (Article 4 of the Constitution) and the right to fair trial and due process (Article 10A of the Constitution).”
9. The Code, including the relevant clauses of the Code pertaining to sub -judice matters and court proceedings, stood sanitized by the Court of last resort in 2015, and again in 2018 . In In the matter of: Suo Motu Case No.28 of 2018, the apex Court had the opportunity to test the relevant clauses from the Code to an actual event and found that Clause 4(3), 4(6) and 4(9) as structured were not violative of the Articles
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of the Constitution of Pakistan and struck a right balance between the freedom of expression and the right to information (Articles 19 and 19A). Further, the clauses in question did not disturb another person’s fundamental right to be dealt with in accordance with law (Article 4) and the right to a fair trial and due process (Article 10A) and did not interfere or obstruct the process of the court in the way of disobedience (Article 204). Thus, the contents of the impugned Directive must be examined in the context of the Code , keeping in mind the observations of the Supreme Court in the above Suo Motu Case.
10. Portion - “B1” of the impugned Directive on an initial reading appears to be a re -formulation of Clause 4(3) and 4(9) of the Code picking up upon the observations of the Supreme Court from In Suo Motu Case No.28/2018. However, on closer examination, content-wise, whereas Clause 4(3) permits the airing of programmes on sub -judice matters in an “informative manner ” and on the basis that it is “handled objectively,” Portion - “B1” imposes a blanket ban on airing news and current affairs programmes on pending matters . It may be noted that Portion ”B1” of the impugned Directive is the exact reproduction of a part of a paragraph appearing in roman numeral (iii) on page 30 of In the matter of Suo Motu Case No.28 of 2018. This Portion - “B1” inserted by PEMRA as an operative part of the impugned Directive is neither a summary of the Suo Motu Case nor a summary of the impugned Directive. In the circumstances, Portion - “B1” is more of a cut-and- paste job that is out of context from the Supreme Court’s Suo Motu Case itself. Without making all the material observations made by the Supreme Court in the Suo Motu Case an operative part of the impugned Directive, the said Portion - “B1” alone cannot be said to be a direction of the Supreme Court as suggested by PEMRA in the impugned Directive and argued by their Counsel before us . If PEMRA wanted, it could have directed parties to adhere to the specific ratio laid down in the said Suo Motu case. But PEMRA did not do so. PEMRA merely reproduced the principles on pages 30 -31 of the reported Suo Motu Case. It did not indicate (as in paragraph 2) that these sub -points of paragraph 19 in the shape of roman numerals (i) to (x), which were
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being reproduced in paragraph 2 of the impugned Directives, are directions. PEMRA’s directions are only found in paragraphs 6 and 7 of the impugned Directive (see paragraph 7 above).
11. PEMRA does not appear to have appreciated that the Supreme Court In In the matter of: S uo Motu Case No.28 of 2018 approved the Code and its “reasonable restrictions”. For instance, Clause 4(3) of the Code with the phrases “informative manner” and “shall be handled objectively” was approvingly cited by the Supreme Court as encompassing the principles of constitutionality and reasonable restrictions and left untouched. However, these reasonable restrictions are left out from Portion - “B1” of the impugned Directive. Portion “B1” of the impugned Directive excludes the rest of the observations of the Supreme Court, which are part of the body of the In the matter of: Suo Motu Case No.28 of 2018. For instance, the Code allows the airing of programmes on sub-judice proceedings provided they are aired in an “informative manner” and “handled objectively ” by the licensee and provided such content does not tend to prejudice the determination by a court, tribu nal or any other judicial or quasi -judicial forum. In In the matter of: Suo Motu Case No.28 of 2018, the Supreme Court opined that “the phrase [in the proviso] ‘tend to prejudice’ in the context of sub- judice matters would mean that a sub judice matter is discussed in a manner which is likely to, or has a mere tendency to result in pre - judgment or forming of an opinion to the disadvantage of any person therein, without proper grounds or knowledge with regards to such proceedings/investigation/inquiry”. The Suo Motu case has approved this modus operandi of Clause 4(3) set out in the Code; but the Portion “B1” of the impugned Directive is a complete ban. According to Portion “B1”, “no content. . .is to be aired ”(ellipsis are ours). If this position is accepted, then certain clauses in the Code, such as , Clause 4(10) become meaningless. Clause 4(10) of the Code concerning “Editorial Oversight” requires that the concerned personnel of the licensee dealing with airing of a programme internally discuss and review the contents of the programme before it is aired or recorded, ensuring that the programmes on sub-judice matters when they are aired, they are done
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so, in an “informative manner ” and are “handled objectively ”. Additionally, the “Editorial Oversight” has to ensure that no programme is aired or recorded whose content “tends to prejudice the determination by a court, tribunal, etc .” The Portion “B1” of the impugned Directive places a complete ban halting all content pertaining to sub -judice matters without providing any discretion to the licensee . The term “content” in the Directive includes “commentary, opinions or suggestions”, thereby reducing the ut ility of Clause 4(10) to a cipher . Therefore, w e find that Portion - “B1” of the impugned Directive has made material change s to media reporting o n sub-judice matters as framed under Clause 4(3) and (9) of the Code, which the Supreme Court sanitised in In t he matter of: Suo Motu Case No.28 of 2018. The impugned Directive has removed the reasonable restrictions. PEMRA’s position that the impugned Directive is being introduced because of the Suo Motu Case is at odds with the Suo Motu Case itself when read as a whole.
12. Portion - “B2” of the impugned Directive also appears to be a significant departure from Clauses 4(3) and 4(6) of the Code. Before proceeding to examine the implications of Portion – “B2” on Clauses 4(3) and 4(6) , it will be helpful to dilate on the term “extract s of court proceedings” found in the Code, which term is not mentioned in the impugned Directive, presumably replaced by the reference to “the written orders of court”. The term “extracts of court proceedings” is not defined under the landscape of PEMRA laws and was not discussed in the In the matter of: Suo Motu Case No.28 of 2018.
13. We have checked the law and found that the term “extracts” appears neither in the Civil Procedure Code, 1908, nor the Qanun e Shahadat Order, 1984 ,5 nor the Sindh Civil Courts Ordinance, 1962. Given this predicament, the term “extracts of court proceedings” in the context of Clause 4(6) of the Code may be read to include, references to, inter alia, a copy (be it certified…
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