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Petitioner: ALI HUSSAIN JAMALI VS Respondent: GOVERNMENT OF SIND THROUGH ITS DEPUTY JUDGMENT
Court Name: Sindh High Court Judge(s): Agha Ali Haider, Durab Patel Title:ALI HUSSAIN JAMALI vs GOVERNMENT OF SIND THROUGH ITS DEPUTY
JUDGMENT
Reported As: PLD 1974 Karachi 283 Result: Petitions accepted Judgment JUDGMENT DORAB PATEL, J.------Constitutional Petitions Nos. 941 of 1973 and 1092 of 1973, have been filed by the acting editor of a Hyderabad newspaper known as the Mehran. Constitutional Petitions Nos. 1080 of 1973 and 1081 of 1973 have been filed by the owners and editor and publisher of a daily newspaper known as the Jassarat. These four petitions have been filed to challenge the legality of orders passed against the Mehran and the Jassarat respectively by the Provincial Government under the West Pakistan Press and Publications Ordinance, 1963 (hereafter called the said (Ordinance). And as these petitions turn on the same ques--petition of law regarding the construction of the said Ordinance, we have heard them together at the request of all the learned counsel, and I will dispose them of by this judgment. The facts essential to the legal questions which have arisen in these petitions are that the Provincial Government, which is the 1st respondent in all these petitions, issued notices in September and October 1973 to the publishers of these two newspapers under section 27(1) of the said Ordinance, calling upon them to show cause why they should not be required to furnish security on the ground that the publications specified in these notices tended to excite disaffection against and directly to bring into hatred and contempt the Government established by law. Then, it is sufficient to state here that according to the respondents, as the publishers did not show sufficient cause, the Provincial Government, to which I shall refer as the Government, issued fresh notices to these publishers under section 27(1)(2) of the said Ordinance directing them to furnish security in the sum of Rs. 30,000 either in cash or in securities of the Central Government, but these orders were not complied with. Finally, by a notice
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dated 19th October 1973, the Government annulled the Mehran's declaration under section 28(b) of the said Ordinance on account of an article in that newspaper on 19-8-1973. Similarly by a notice dated 12-10-1973, the Government annul--led the Jassarat's declaration on account of an article in that newspaper on 22-8-1973, and these petitions have been filed to challenge the legality of all the notices and orders issued by the Government against these two newspapers. 2. Both Mr. Hassan Shaikh, who appeared on behalf of the Mehran, and Mr. Khalid Ishaque, who appeared on behalf of the Jassarat, contended that the issues of these newspapers with regard to which the notices under section 27(1) had been issued did not come within the mischief of the said Ordinance. Secondly, according to both the learned counsel, all these notices under section 27(1) were in breach of the mandatory provisions of this section, because they did not prescribe the period within which the publishers of these newspapers had to furnish the security demanded from them. Further, according to learned counsel, the persons who were served with these notices were not publishers under the said Ordi--nance; and, in any event, the notices had not been served in the manner prescribed by the said Ordinance. The result of these illegalities, according to learned counsel, was that all action taken by the Government against these-newspapers was null and void ab initio. Without prejudice to these contentions, the learned counsel alleged mala fides and further submitted that the publisher of these newspapers had not been given proper oppor--tunity to show cause. They also challenged the orders passed under section 28 on two grounds. The first was that these orders were passed without hearing even the persons who, according to the respondents, were this publishers of the Mehran and of the Jassarat. The 'second ground was that the publications for which action has been taken under section 28 were prior to the date of the notices under section 27(l), therefore, on this ground also, all action taken under section 28 was illegal with the result that the declarations of these newspapers were valid and subsisting. 3. The learned Advocate-General submitted that the issues of these newspapers with regard to which notices had been issued under section 27(1) fell within the mischief of section 24(1)(6) of the said Ordinance. And further the notices had been served on the persons who were the publishers of these newspapers within the meaning of the said Ordinance. Then, as to the mode of service on these persons, the submission was that the method prescribed for the mode of service was directory and not mandatory. But the learned Advocate-General also denied the allegation that these notices were-tot in conformity with the provisions of section 27(1), and he vehe--mently denied the further allegation that the publishers of the newspapers had not been heard, as required under this section. Then, as to the annulment of the declarations of the two newspapers, he conceded that this had been done without a hearing to the publishers, but the submission was that this was 'not material because the publishers were entitled to file appeals against the orders of annulment under section 48 of the said Ordinance, and if they had done so, they would have been heard by the Government. But as they had not filed appeals, the further submission was that the petitions merited dismissal on this ground also. Finally, the learned Advocate-Gene--ral denied all the allegations of mala fides. 4. I will first examine the contention that the notices issued under section 27(1) were illegal, because they were in breach of the mandatory provisions of section 27. However, as these notices are issued only for material, which comes within the mischief of section 24 of the said Ordi--nance, I would first refer to this section. Section 24, in so far as it is rele--vant, reads: "24. (1) Whenever it appears to the Government that any printing press is used for the purpose of printing or publishing any book or paper containing any words, signs or visible representations which- (i) tend directly or indirectly to bring into hatred or contempt the Government established by law in Pakistan or the administration of justice in Pakistan or any class or section of the citizens of Pakistan or to excite disaffection towards the said Government, or"
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Explanations 3 and 4 to this section are also relevant and read as follows: "Explanation 3.----Comments expressing disapprobation of any measures of the Government with a view to obtaining their alteration by lawful means, or any action of the Government, administrative or otherwise, without exciting or attempting to excite hatred, contempt or disaffection, shall not be deemed to be of the nature described in clause (i). Explanation 4.-Statements and comments made without malicious intention, for the purpose of helping or advocating the progress of any Province or any region or part of Pakistan, or tile furtherance of its legitimate interests, or for securing removal of any factors tending to create or excite enmity, ill-will or hatred, shall not be deemed to be of the nature described in clause (j)." Section 27 reads as follows: "27(1) Whenever it appears to the Government that a newspaper pub--lished within West Pakistan contains any words, signs or visible representations of the nature described in subsection (1) of section 24, whether in any headline, caption or otherwise, or that any such headline or caption does not substantially reflect the material pub--lished thereunder, the Government may, by a notice in writing to the publisher of such newspaper, stating or describing such words, signs or visible representations, require the publisher to deposit with the District Magistrate within whose jurisdiction the newspaper is published, security to such an amount, not being less than five hundred or more than thirty thousand rupees, as the Government may think fit to require, in money or the equivalent thereof in securities of the Central Government, as the person making the deposit may choose or alternatively or in addition to requiring such security, impose any of the following punishments, namely: (a) warning; (b) suspension of declaration; or (c) annulment of declaration a Provided that no action under this section shall be taken without affording to the publisher an opportunity of being heard. (2) Such notice, if any, shall appoint a date, not being sooner than the tenth day after the date of the issue of the notice, on or before which the deposit shall be made." 1 may point out here that the words in subsection (1), which I have placed in brackets, were deleted by West Pakistan Ordinance XXI of 1964, and I may also point out that it was by this amending Ordinance that the provision for security was raised from Rs. 10,000 to Rs. 30,000. Further, in order to resolve the controversy between the learned counsel on the proper construction or the words "such notice" under subsection (2) of section 27, it is necessary to refer to section 28 also, which reads as follows: "28. (2) If any newspaper in respect of which any security has been ordered to be deposited under section 27 contains any words, signs or visible representations which in the opinion of the Government, are of the nature described in subsection (l) of section 24, the Government may, by notice in writing to the publisher of such newspaper, stating or describing such words, signs or visible Representations: ---- (a) where the security has been deposited declare such security or any portion thereof to be forfeited to the Government, or (b) where the security has not been deposited annul the declaration made by the publisher of such newspaper under section 7, and may also declare all copies of such newspaper, wherever found in the Province, to be forfeited to the Government. (2) After the expiry of ten days from the date of the issue of a notice under subsection (1) declaring a security, or any portion thereof, to be forfeited, the declaration made by the publisher of such newspaper under section 7, shall be deemed to be annulled."
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5. According to the petitioners, a notice under subsection (1) of section 27 must not only call upon the publisher to furnish security by depositing with the Government the amount specified in the notice, but it must also appoint the date "on or before which the deposit shall be made". But the subsection does not contain any such express provision, and, on the other hand, it confers an express opportunity to the publisher to be heard before any order is passed against him. Thus, it would be open to a publisher, by showing sufficient cause, to persuade the Government to withdraw its notice against him. In these circumstances, it seems to me that it would often be an exercise in futility to fix in advance the period for furnishing security. But, according to Mr. Khalid Ishaque and Mr. Hassan Shaikh, the words "such notice" in subsection (2) were decisive, and they could only mean the notice under subsection (1). The necessary result of accepting this submission would be that every notice under subsection (1) would have to appoint the date for furnishing security, but if this con--struction of the subsection is correct, then the words "if any" which follow the words "such notice" would become redundant. And as rightly sub--mitted by the learned Advocate-General, redundancy cannot be attributed to the Legislature. Secondly, the submission of the petitioners implies that the section contemplates only one notice, but the learned Advocate- General challenged this assumption. His submission was that the section envisages three stages. The first stage was the issue of the show-cause notice to the petitioner. The second stage was the hearing to the publisher, and the third stage was the Government's decision on the matter and the commu--nication of that decision to the publisher. In my opinion, this is a correct analysis of the section, but Mr. Khalid Ishaque and Mr. Hassan Shaikh submitted that the third stage envisaged by the Advocate-General was only the order passed by the Government on the publisher's representations against the show-cause notice, and, as an order was not a notice, the words "such notice" in subsection (2) could only mean the notice prescribed under subsection (1). Not only does this construction of subsection (2) render redundant the words "if any", but, as I observed earlier, it also B assumes that only one notice can be issued under section 27, and, in my opinion, this assumption is utterly fallacious. That the Government must pass an order on the publisher's explanation, as submitted by the learned counsel is correct, but that order may or may not require to be communicated to the publisher. But-if it is adverse to the publisher, he has to furnish security, and if he does not, the penal consequences of section 28 might be attracted, therefore, the communication of the Government's decision to the publishers would be required only when it is adverse, and the Legislature has imposed the requirement of a notice only in such cases. Hence the words "such notice, if any". 6. Not only is this construction of subsection (2) to be preferred because it gives full effect to the language of the subsection, but this construction is also in consonance with the scheme of the said Ordinance. I observed earlier that section 28 was relevant, and I would recall here that the Government can, under this section, forfeit the security and annul the declaration of a newspaper against whom it had passed an order under section 27. Section 30 also confers similar powers, and although the Government can exercise these powers only by passing an order, neither of the sections refer to the order or decision of the Govern--ment but only to the notice which must be given to the publisher, when the decision of the Government is adverse. Thus an examination of the other relevant provisions supports me in my conclusion that the notice under subsection (2) of section 27 is3different from that under subsection (1) of this section, and ft is only the notice under subsection (2) which must fix the period for furnishing security. I therefore agree with the learned Advo--cate-General that the notices under section 27(L) do not suffer from any legal defect. 7. I will now examine section 28, and I would recall here that neither the Jassarat nor the Mehran complied with the orders passed against them for furnishing security, and their declarations were annulled under section 28(b) of the said Ordinance. Now, the notices communicating this decision to annul the declarations of these two newspapers state that in both cases the declarations had
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been annulled because of publications in these newspapers in the month of August 1973. But as the notices under section 27(1) to these newspapers were issued in September and in October 1973, the submission of Mr. Hassan Shaikh and of Mr. Khalid Ishaque was that the orders annulling the declarations were illegal and in breach of the mandatory provisions of section 28. In order to appreciate this submission, I would point opt here that action against a newspaper can be taken under section 28 only after it has been directed to furnish security under section 27, therefore, obviously these sections must be read together, and the submission of the learned counsel was that in view of the juxtaposition of the two sections, the harsher penalties under section 28 were available only for the recalcitrant editor who refused to mend his ways. I have quoted both the sections in para. 4, and according to section 27 "whenever it appears to the Govern--ment that a newspaper . . . . . Contains any words, signs or visible representations of the nature described in subsection (1) of section 24 the Government is empowered to take action against such a newspaper". And, according to section 28, "if any newspaper in respect of which any security has been ordered to be deposited under section 27 contains any words, signs or visible representations which in the opinion of the Government are of the nature described in subsection (1) of section 24" the Government is empowered to take action under the section against such a newspaper. As both the sections use the word "contains", the contention of the petitioners was that this word meant a publication subsequent at least to the date of the notices; under section 27(1), whilst, according to the learned Advocate-General, the word "contains" meant publications subsequent to those for which a news-- paper had been directed to furnish security. The question is of the meaning of the word "contains" and no doubt there is an ambiguity in the section. But if the word "contains" can cover earlier publications, as submitted by -the learned Advocate-General, why cannot the Jassarat and the Mehran be punished under section 28 for some publication made in the year 1963 when the said Ordinance was promulgated? The mere statement of the consequences of the learned Advocate-General's submission is fantastic, and when we put this aspect of the case to him, he very fairly conceded that the section could not be invoked to resurrect matters published long ago. He submitted that a line had to be drawn somewhere, and therefore his suggestion was that the section should be so construed as to empower the Government to take action against a newspaper for publications subsequent to the date of the publication for which an order had been passed under section 27, but not for publication prior to such date. Now, even if it is reasonable to draw a line in this manner, the difficulty is that on the Advo--cate-General's construction of the word "contains", to draw a line in this or any other manner would be to read into the section a qualification, which is not contained in it. 8. Additionally if action can be taken under section 28 for publication prior to the date of the notice under section 27(1), would not the two sections overlap? This would be an achronistic, but I point out here that there was some overlapping between these two sections in the said Ordinance, as originally enacted. I have quoted section 27 in paragraph 4 and shown the portion of the section which was deleted by the West Pakistan Ordinance XXI of 1964. Now under this section as originally enacted, Government could not only have directed a newspaper to furnish security, but it could also have suspended or annulled its declaration, therefore sections 27 and 28 overlapped. This anomaly was removed by the amendment of section 27 in 1964, and we have now to give effect to the intention of the Legislature in removing this anomaly. The result of the amendment is that the only action which can now be taken against a newspaper under section 27 is an order to furnish security. Now when a newspaper furnishes security, it is making a pledge for the fulfilment of a promise, the promise being that it will not again publish any matter which will come within the mischief of section 24 of the said Ordinance. This follows from the concept of an order for security, and, on the other hand, if we were to accept the learned Advocate-General's submission, it would mean that a newspaper could be punished for a publication prior even to the date on which it had
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learnt of its alleged misconduct. In my humble opinion, such a construction would be contrary to the concept of an order for security, and is not ported by the language of the section. Accordingly, on this ground also, I would agree with the submission of the learned counsel for the petitioners, that section 28 is available only against the recalcitrant editor. 9. However, even if I am wrong, the section is not a model of elegant drafting, and there is an ambiguity about the word "contains", the ambiguity must be construed according to the maxims for the construction of statutes. Now, the contention of Mr. Hassan Shaikh and of Mr. Khalid Ishaque was that as the section was a penal provision, it had to be construed strictly, and, therefore, even on the footing that the word "contains" was ambiguous, that ambiguity had to be construed in favour of the subject and not in the manner submitted by the learned Advocate-General. On the other hand, according to the learned Advocate-General, the principle of strict construction was not attracted because the section only affected rights of property, and the section involved only rights of property because the penalties which could be imposed under it were pecuniary penalties, namely the forfeiture of the newspaper's deposit or the annulment of its declaration. I am not impressed by this submission. Even on the footing that the penalties prescribed under section 28 affect rights of property, this does not mean that the section should not be construed strictly. Secondly, even though the penalties under the section are of a pecuniary nature and affect rights of property, they also affect much more. The liberty of the Press, subject to law, is as essential to the proper functioning of democracy as the liberty of the subject. There--fore, the ambiguity in the word "contains" must be construed strictly and G in favour of the subject, and on this ground also, the declaration of a newspaper cannot, in my opinion, be annulled on account of publications prior to the date of the notice to it under section 27(1) of the said Ordinance. Accordingly I hold that the orders annulling the declaration of these two newspapers are illegal, and it is not necessary to examine the other grounds on which the Government's action under section 28 is challenged by the petitioner. However, the Government's orders for furnishing security have not been complied with therefore it is necessary to examine the grounds on which they challenged the validity of these notices, and I will first consider the petitions filed by the Mehran. 10. I pointed out that a notice under section 27(1) was issued on 7-9-1973 to the publisher of the Mehran for an editorial and/or article on 18th August 1973. The publication consisted of speeches of the opposition leaders with a caption and an editorial note. I may also point out that Petition 941 of 1973 was filed to challenge the proceedings thus instituted. But the notice thus challenged was withdrawn, and on 16th October 1973, a fresh notice under section 27(1) was issued only for the caption, the editorial comment and a part of the speeches set out in the entire article. Petition 1092 of 1973 has been filed to challenge the proceedings thus instituted, and in view of the notice dated 16th October 1973, both Mr. Hassan Shaikh and the learned Advocate-General conceded that Petition 941/73 had become infructuous. This is correct, therefore I would only examine the material with regard to which the fresh notice under section 27(1) was issued on 16-10-1973. The translation of this material is as follows: ---Results of arrests can be dangerous.---Government will not enforce the New Constitution. It is only a showpiece. To save country people should launch forceful movement-strong condemnation of the arrests of Baluch Leaders in the whole country.--- The arrest of. Mr. Attaullah Mangel, Mr. Gous Bux Bizenjo and Khair Bux Marri and the suspension of fundamental rights has brought gloom and resentment all over the country. The prominent political leaders from the nook and corner of the country have described the above said arrests the worst type of political victimization and have said that this action of the Government will result in dire consequences. He said the popularly elected Government in Baluchistan was removed illegally after armed forces are being used there and Baluchi Leaders are being arrested and assassinated. As a result of these
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events once again the condition of 1971 will come into being. He said that present Government in order to continue fascism is adopting such tactics which are becoming a serious threat to the integrity of the country." 11. I pointed out that the entire article, of which the passage quoted above is only a part, consisted mostly of the speeches of Opposition Leaders, some of whom we were informed were members of the National or of the Provincial Assembly. We therefore inquired from the learned Advocate--- General whether any action had been taken against the authors of the speeches, but the Advocate-General stated that no action had been taken against them. He was also not able to refer us to any law or order prohibiting a newspaper from publishing the speeches of the Opposition Leaders. Now, in a democracy, it is the right and the duty of newspapers to publish, in a fair and balanced manner, the speeches both of the members of the Govern--ment and of the Opposition. Additionally, as the earlier…
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