Full Judgment Text & Judicial Ruling

P L D 2026 Lahore 28 Before Raheel Kamran, J Messrs NC ENTERTAINMENT (PVT.) LTD. and another---Petitioners Versus CENTRAL BOARD OF FILM CENSORS (CBFC) and others---Respondents Writ Petitions Nos. 27555 and 27810 of 2023, decided on 25th September, 2025. (a) Motion Pictures Ordinance (XLIII of 1979)--- ----Preamble & S. 2---Prevention of Electronic Crimes Act (XL of 2016), S.37(1)---Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021, Rr.4 & 5---Constitution of Pakistan, Arts.4(c), 19, 25 & 199---Constitutional petition by entertainment broadcasting companies---Unequal enforcement of censorship and certification laws, plea of---Grievance---Cinema films requiring prior certification while identical OTT/digital content remaining unregulated and freely accessible---Legality---Brief facts were that the petitioner companies were entertainment broadcasting companies operating a chain of cinemas across the country, duly licensed to exhibit films under the Motion Pictures Ordinance, 1979---They filed a constitutional petition alleging unequal enforcement of censorship and certification laws, arguing that while films screened in cinemas were subject to prior certification by the Central Board of Film Censors, identical content available on digital and OTT platforms such as Netflix or Amazon Prime were freely accessible in the country without similar regulation---The petition also challenged the applicability of the Import Policy Order, 2022 to digital film content, asserting that digital imports did not constitute goods under the law---Petitioner companies sought directions for uniform application of the Motion Pictures Ordinance to all mediums of exhibition, including online platforms, and alternatively requested that any unrestrained film content available online be deemed certified for public exhibition in their cinemas---Core question for determination before the High Court was as to Whether the Motion Pictures Ordinance, 1979 applied to Over-the-Top (OTT) digital platforms and whether content available online, if unregulated by the Central Board of Film Censors, could be deemed certified for public exhibition in cinemas ?---Held: The procedure provided under Rr. 4 & 5 of the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021 primarily addressed online content based on complaints, however, S. 4(6) of the Rules also allowed the authority to act on its own initiative to remove or block unlawful online content under S. 37(1) of the Act, even without a formal complaint---While acknowledging the PTA s statutory authority to block access to unlawful online content under S. 37(1) of the Prevention of Electronic Crimes Act, 2016 and R. 5(6) of the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021, there was a critical distinction---Though a platform might be blocked entirely, the granular, pre-screening censorship of individual content items, as was done for traditional films to be exhibited through cinematograph, was not practically achievable due to the encrypted nature and sheer volume of data streaming over such protocols---The authority s recourse in such scenarios was often limited to a complete blocking of the platform or engaging with content providers, rather than undertaking a proactive, content-by-content review---The distinctions between exhibition of films by means of cinematograph and content on OTT platforms reflected fundamental differences in content creation, distribution, consumption patterns and the practicalities of regulation---Therefore, High Court could not expand the scope of the Ordinance, designed for a different technological epoch and mode of consumption, to encompass a modern, dynamic digital medium---The Motion Pictures Ordinance of 1979 did not apply to content on Over-the-Top (OTT) platforms because these platforms did not exist when the Ordinance was promulgated---As the Ordinance was neither designed to regulate digital content on OTT platforms nor amended to meet such new exigencies, compelling its application through judicial order would impose an obligation not required by law as articulated under Art. 4(c) of the Constitution---With respect to the alternative prayer of the petitioner companies that if respondents did not restrain OTT platforms content, such unrestrained content be considered certified and allowed for public exhibition, to declare all such unrestrained content certified by default would create a regulatory vacuum, allowing potentially objectionable or unlawful content to be exhibited without any prior scrutiny or classification---The question of whether digital content constituted goods for import purposes was primarily one for customs, trade, and taxation authorities---However, irrespective of its classification under import policies, once such content was sought to be publicly exhibited within the territorial limits of Pakistan via cinemas, it immediately engaged the State s power to regulate public displays for the maintenance of public order, morality and other societal interests---The nature of the medium of exhibition (cinema) produced distinct regulatory requirements under domestic law (including the Motion Pictures Ordinance, 1979 for cinematographs), which could not be circumvented by arguing the digital origin or non-import status of the content itself---Therefore, even if the content was not deemed an import of goods in the traditional sense, its public exhibition in a cinema required adherence to the laws governing public exhibition, which necessitated proper certification---In the present case, cinematographs and OTT platforms were not similarly circumstanced entities under the purview of the Ordinance---A cinematograph involved a distinct mode of exhibition in a public setting, demanding physical infrastructure, controlled access and a regulatory framework built for a pre-digital era---Conversely, OTT platforms operated as digital streaming services, delivering a vast, dynamic and globally sourced content library primarily for private consumption on diverse personal devices---The Ordinance was never designed nor enacted to regulate the latter---Therefore, the mere absence of its application to OTT platforms, which operated under a fundamentally different technological and consumption paradigm, did not constitute a discriminatory application of the same law---The State s challenge lay in a legislative vacuum for modern digital media, not in a discriminatory enforcement of an existing law on entities that were, in fact, distinct in their nature and mode of operation---Prayer seeking the application of the Motion Pictures Ordinance, 1979 to OTT platforms and the alternate prayer for deemed certification of unrestrained content, were not maintainable on legal and practical grounds---Both the petitions were, therefore, dismissed, in circumstances. British Amusement Catering Trades Association and another v. Westminster City Council ([1988] 1 All ER (sic) ref. (b) Interpretation of statutes--- ----Once the meaning of an expression is provided in a statute, that interpretation tends to stick rigidly to that original understanding, even if times or circumstances evolve. Commissioner of Income Tax Legal Division, Lahore and others v. Khurshid Ahmad and others PLD 2016 SC 545 and Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior Islamabad and others PLD 2023 SC 42 rel. (c) Constitution of Pakistan--- ---Art.25---Discrimination, plea of---Applicability---Scope---The essence of legal discrimination, particularly in the context of guarantee of equality as enshrined in Art. 25 of the Constitution, applies where similarly circumstanced entities are treated differently under the same law, or where distinctions are drawn without reasonable justification among equal. I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Gul Zarif Khan and others v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others 2025 SCMR 415 rel. Muhammad Ali Raza, Habiba Alvi, Jawad Ul Hassan and Raza Ahmad for Petitioners. Muhammad Mansoor Ali Sial, Assistant Attorney General for the Federation of Pakistan. Amar Sana, Additional Advocate General and Muhammad Osman Khan, Assistant Advocate General for the Province of Punjab. Syed Nayyer Abbas Rizvi with Umer Khatab, Deputy Director Legal, PEMRA for Respondent No.2/PEMRA. Barrister Ch. Muhammad Umar and Mufti Ahtesham-ud-Din Haider for Respondent No.3/PTA. Zeeshan Zafar Hashmi, Amicus Curiae. Dates of hearing: 21st, 22nd 23rd June, 2023, 04th June, 2024 and 8th April, 2025. JUDGMENT RAHEEL KAMRAN, J.---This judgment shall decide the titled petition as well as Writ Petition No.27810 of 2023 since common questions of law and facts are involved therein. 2. The petitioners are entertainment broadcasting companies having a chain of cinemas across Pakistan and are duly licensed to exhibit films by way of cinematograph. They are aggrieved by the alleged dis-criminatory act of the respondents over enforcement of certification, censorship and other restrictions for public exhibition of films only. In order to have precise picture of their grievance, the prayer made in the titled constitutional petition is reproduced hereunder:-- "WHEREFORE, it is respectfully prayed that this Honourable Court may be pleased to direct that the provisions of the Motion Pictures Ordinance, 1979 and the Rules framed thereunder apply equally to all film content whether for public and private exhibition or viewing and distributed, broadcast or exhibited through any forum, media or method and alternatively if any film content is available in Pakistan through any medium for public or private access and has not been restrained by the Respondent No.1 the said content be deemed certified for use by the Petitioners. It is further prayed that this Honourable Court may be pleased to direct that the digital content accessed digitally by the Petitioners not being an import of goods is not subject to the Import Policy Order, 2022 and Serial No.24 particularly. It is further prayed that this Honourable Court may be pleased to direct the Respondents No.1 to No.5 to act without discrimination and act immediately in respect of all mediums of private and public exhibition displaying films by cinematograph and in collaboration with the Respondents Nos.2 and 3 to properly regulate the private exhibition of films on cable TV and the internet-enabled platforms by strictly enforcing the provisions of the Ordinance of 1979 and the rules made thereunder." The connected Writ Petition No. 27810 of 2023 seeks identical relief. 3. Learned counsel for the petitioners contends that all films broadcast on the distribution networks under regulation of Pakistan Electronic Media Regulatory Authority (PEMRA) are required to be approved by the Board constituted under section 3 of the Motion Pictures Ordinance, 1979 ('the Ordinance') and in terms of section 4 ibid, any broadcast of films without certification as required under section 5 is without lawful authority. According to him, Rule 15(2) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 ("PEMRA Rules") imposes obligatory requirement upon all cable and television licencees to comply with the requirements under sections 4(1) and 5 of the Ordinance and allowing such exhibition by PEMRA is discriminatory against cinema theaters. He maintains that cinematograph has been defined in section 2(c) of the Ordinance which is to include any apparatus for the reproduction of moving pictures or series of pictures and it has a similar definition under the Indian Cinematograph Act, 1952 and the Madras High Court in India in the case of Entertaining Enterprises v. State of Tamil Nadu and another (AIR 1984 Mad 278) has given the word an enlarged definition taking into account the modern innovation and advancement in science and technology. He adds that guiding principles for censorship in certifying films under section 6 of the Ordinance are derived from the reasonable restrictions imposed by the law on the freedom of expression under Article 19 of the Constitution, hence, these considerations cannot be applied selectively and must be applied to all viewing platforms as envisaged by the Constitution inasmuch as the intent and purpose of censorship law is to ensure social norms of decency and morality prevailing in Pakistani society. Reliance in this regard has been placed on the judgment of Supreme Court of Pakistan dated 24.11.2022 in Civil Petition No. 3506 of 2020. According to him, provisions of the Ordinance have not been enforced equally against all mediums and platforms of public and private exhibition and the same are being applied selectively and arbitrarily against the petitioners leaving all other digital platforms to continue unchecked, which is discriminatory application of the law and such selected application is a manifest violation of the principle of equality of all citizens enshrined in Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution'). Reliance has been placed on the case of Messrs Lucky Cement v. Khyber Pakhtunkhwa and others (2022 SCMR 1994). He further contends that Item No. 24 in the list of banned items in the Import Policy Order, 2022 dated 22.04.2022 ('Import Policy') issued by the Ministry of Commerce, Government of Pakistan is ultra vires section 3 of the Import and Export (Control) Act, 1950 as well as Articles 19 and 19A of the Constitution. According to him, petitioners are required to obtain import permissions for all foreign films it seeks to exhibit in addition to censorship by the Board by way of a prior grant of NOC, whereas cable television, broadcast television or internet providers or international digital content platforms do not obtain any such permission for the digital content including films which are available to be accessed in Pakistan. Learned counsel for the petitioners in support of his arguments has also relied upon paragraph No.6 of report and parawise comments of respondent No.1. 4. Learned Law Officer for the Federation contends that these writ petitions are not maintainable inasmuch as the petitioners therein are not aggrieved and none of their established rights has been restricted or hindered by any of the respondents. He maintains that the alleged violation of Articles 18, 19 and 19A of the Constitution vide item No. 24 in the Import Policy is misconceived inasmuch as the said fundamental rights are subject to qualifications specified therein. He adds that following the 18th Constitutional Amendment Act, 2010, which amended the 4th Schedule, the subject of cinematograph censorship devolved upon the provinces, granting them exclusive authority in this regard. He further contends that the term 'cinematograph' shall be construed keeping in view the context of the Ordinance and OTT Platforms are not covered by it. He finally contends that challenge of the petitioners is unsustainable in view of the findings of the Supreme Court of Pakistan as recorded in paragraph 65 in the case of Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739). 5. Learned Law Officers for the province state that report and para-wise comments have been filed on behalf of respondents Nos. 6 and 7 in W.P.No.27810 of 2023 wherein it has been stated that the PEMRA exclusively deals with electronic media and that the jurisdiction of the Punjab Film Censor Board is only restricted to censorship of films. They have also emphasized that the term 'cinematograph' is to be construed in the context of the Ordinance which has no application to the OTT platforms. They have prayed for dismissal of the titled writ petitions on the ground that no fundamental right is violated and the petitioners want to promote their personal business through the instant petitions which are liable to be dismissed. 6. Learned counsel for the respondent/PEMRA contends that the PEMRA is a regulatory authority for the purpose of broadcasting media and distribution of services and it is responsible only for improving the quality standards of the channels shown to the people of Pakistan. He further contends that the PEMRA has no nexus with the Ordinance and the petitioners have neither any locus standi nor any grievance against it. 7. Barrister Ch. Muhammad Umar, learned counsel for the respondent/PTA contends that the PTA has no mandate or jurisdiction under the Pakistan Telecommunication (Re-Organization) Act, 1996 ('PTA Act') to regulate matters pertaining to content that is available for viewership on OTT platforms. He adds that the PTA Act authorizes the said respondent to regulate telecommunication sector and internet service and under the Prevention of Electronic Crimes Act, 2016 ("PECA Act") they have been conferred with authority to block any content which is deemed unlawful under section 37 ibid. He submits that the PTA does have authority to block access to the OTT platforms and in this regard he has referred to rule 5(6) of the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021. He, however, emphasizes that because of lack of technical capability, PTA may not be able to control content under the said rule in relation to "https" or other similar protocols for which purpose the only approach available with the PTA is to completely block the content in the country. In such cases, he clarifies, the authority takes up complaints with the provider of the content which are considered more often by the administration of the concerned protocol. He further submits that service providers and significant social media companies have been asked by the PTA to establish their offices in Pakistan, as and when feasible, with a physical address, preferably located in Islamabad in terms of rule 7(6)(d) of the 2021 Rules. In case of non-adherence to the directive of the authority, all that PTA can do is to restrict or block access to such platforms through a proper order in the facts and circumstances of the case. According to hi m, censorship is primary mandate of Censor Board and PEMRA and it is not at all domain of the PTA and if any such regulation is to be made, the same has to be carried out through an act of the Parliament. 8. Mr. Zeeshan Zafar Hashmi, learned amicus curiae, contends that the Ordinance essentially deals with exhibition of films by means of cinematograph which is controlled by the Censor Board through censorship. He adds that it is significant to understand the meanings of words "film", "cinematograph" and "exhibition", out of which film and cinematograph are defined in sections 2(d) and 2(c) respectively of the Ordinance whereas the word exhibition is not defined therein. According to him, the word cinematograph has lost its efficacy on account of technological advancement. He further adds that the law requires those definitions to be adhered to in the context in which those were enacted at the time of promulgation of the Ordinance. He has placed reliance on the judgment in the case of Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior Islamabad and others (PLD 2023 SC 42). According to him, the expression cinematograph has to be taken in the way it was defined in 1979-80 in the times of cinema and VCRs. He contends that the medium of OTT was not existing at the time when the Ordinance was promulgated, therefore, the Ordinance has no application to regulate the same. He next referred to the Judgment of House of Lords in the case of British Amusement Catering Trades Association and another v. Westminister City Council [1988] 1 All E R). According to him, the definition in the Ordinance is not inclusive of OTT. 9. Arguments heard. Record perused. 10. The present petitions seek manifold directions concerning the regulation of Over-the-Top (OTT) platforms and their content, particularly in light of existing legislation governing traditional cinematic exhibition. This Court has meticulously examined each prayer, the underlying legal framework and the practical realities of the digital media landscape, drawing insights from global regulatory approaches and the on-going discourse on content governance. 11. The Motion Pictures Ordinance was enacted in 1979, a pre-digital era, designed primarily to regulate the exhibition of films via cinematographs in public spaces, involving a process of pre-censorship and certification by a censor board. To provide a comprehensive understanding, it is necessary to first examine the preamble and key definitions in the Ordinance. Preamble.--Whereas it is expedient to provide for the censorship of films and the regulation of exhibition of films by means of cinematographs, and for matters connected therewith or incidental thereto; 2. Definitions.--In this Ordinance, unless there is anything repugnant in the subject or context- (a) -------- (b) -------- (c) "cinematograph" includes any apparatus for the reproduction of moving pictures or series of pictures; (d) "film" means cinematographic film or other materials used for projection by cinematograph; (e) "place" includes a house, building, tent and any means of transport, whether by sea, land or air; Perusal of the preamble shows that the Ordinance was promulgated to provide for:- (i) censorship of films (ii) regulations of exhibition of films by means of cinematograph, and (iii) for matters connected therewith or ancillary thereto. This legal framework in the Ordinance contemplates a physical medium, a controlled environment of public exhibition and a limited volume of content, amenable to manual pre-screening. Content on OTT platforms was not within the purview of the Ordinance for the simple reason that OTT platforms had not been invented at the time Ordinance was promulgated. Although the subject of cinematograph censorship devolved upon the provinces through the 18th Constitutional Amendment Act, 2010 (amending the 4th Schedule) and the provincial governments accordingly amended the Ordinance respectively, by way of (i) The Sindh Motion Pictures Act, 2011 (IV of 2012) (ii) The Punjab Motion Pictures (Amendment) Act, 2012 (X of 2013) (iii) The Khyber Pakhtunkhwa Censorship of Motion Pictures (Films, CDs, Videos, Stage Dramas and Shows) Act, 2018 (XI of 2018), however, no clause for pre-screen censorship of the content available on OTT platforms or any other digital medium was incorporated into these Acts despite the fact that many of the OTT platforms had emerged in the mid-to-late 2000s i.e. prior to amendment of the Ordinance by the provinces. Had it been the intention of the legislature to bring OTT platforms within the purview of the Motion Pictures Ordinance/Acts, there would have been clear indication of the legislature while amending the Ordinance by way of afore-referred Acts. 12. In stark contrast, OTT platforms, such as Netflix, Amazon Prime Video and others operate on an entirely different paradigm. They deliver Over-the-Top content directly to end-users via the internet, accessible on various personal devices (smartphones, tablets, smart TVs) in private settings, on-demand, at any time. The sheer volume of content available on these platforms, often encompassing millions of hours, with new content uploaded continuously, renders traditional pre-censorship logistically impossible and economically unviable for any human-led censorship board. Furthermore, OTT platforms inherently possess a global nature. Content originating in one country is streamed worldwide, making it operationally unfeasible to subject every piece of content to pre-screening requirements of every jurisdiction into which it is streamed. Many platforms also host vast amounts of user-generated content, which is even more challenging to pre-screen censorship. The assertions raised by the learned counsel for respondent No.3/PTA further underscore the practical and technical impossibilities of applying a pre-screen censorship regime to OTT platforms. Section 37(1) of the Prevention of Electronic Crimes Act, 2016 (PECA, 2016) empowers the Pakistan Telecommunication Authority (PTA) to block or remove unlawful online content deemed to be against the glory of Islam, State's integrity, security, or defense; indecent or constituting contempt of court. For the facility of ready reference, section 37(1) ibid is reproduced hereunder:- "37. Unlawful On-line content.---(a) The Authority shall have the power to remove or block or issue directions for removal or blocking of access to an information through any information system if it considers it necessary in the interest of the glory of Islam or the…

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