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Petitioner: MUZAFFAR QADIR AND ANOTHER VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Aslam Riaz Hussain Title: MUZAFFAR QADIR AND ANOTHER vs THE STATE Case No.: Writ Petition No, 1690 of 1973 Date of Judgment:1973-11-11 Reported As: 1977 P Cr. L J 239 Result: Order accordingly
JUDGMENT
JUDGMENT ' This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan (1973) by Mr. Muzaffar Qadir and Mr. Hussain Naqi. Mr. Muzaffar Qadir had described himself in the heading of the petition as the 'General Manager of the Packall Printers and Printer of the 'Punjab Punch', Lahore while Mr. Hussain Naqi has been described in the heading of the petition as the 'Publisher and Editor' of the Punjab Punch. The writ petition is directed against the legality and the validity of.. (i) the warrant of search, dated 3-8-1973, whereby the District Magistrate, Lahore, ordered a D. S. P., to enter upon and search the premises of Packall Printers, Lahore and seize all documents (i,e, copies of the English Weekly called Punjab Punch) printed since 24-6-1973 or any subsequent date, as unauthorised publications, and (ii) the legal proceedings initiated against Mr. Muzaffar Qadir petitioner by the District Magistrate, Lahore. 2. The factual background which led the present petition may be stated, briefly, for a clear understanding of the contentions raised by the learned counsel for the parties. The facts narrated below have either been stated in the writ petition or the written statement or were mentioned by the learned counsel for the parties during the arguments. The correctness of these facts given hereunder were not disputed by the parties before me. (a) On 18-5-1970 one Sardar Mahammad Sarfraz, who owned a press called Packall Printers' in Lahore, made a declaration in Form 'A' under section 4 of the West Pakistan Press and Publications Ordinance, 1963, (hereinafter referred to as the Ordinance). Apart from Mr. Muhammad Sarfraz, the maker of the declaration that form was also signed by Mr. Muzaffar Qadir, petitioner No, 1, as the former's 'agent'.
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(b) On the same day an agreement deed was executed between Mr. Muhammad Sarfraz and Mr. Muzaffar Qadir petitioner No, 1 whereby Mr. Muzaffar Qadir petitioner was employed at a salary of Rs, 1,200 p.m., to manage the affairs pertaining to the running of the printing press and to do all other acts in connection therewith, including securing business. (A photostat copy of the agreement deed is attached as Annex. '13' with the petition). (c) About 1/ months later, on 25th of June 1970, the District Magistrate Lahore, authenticated the said declaration in exercise of his powers under section 4 (1-A) of the Ordinance and on the same day he sent a letter to Mr. Muhammad Sarfraz addressing him as the "Keeper of the Packall Printing Press" and informing him that his declaration has been authenticated (a photostat copy of this letter is attached as Annex. 'A' with the petition). (d) Subsequently, the aforementioned Mr. Muhammad Sarfraz applied for a "Printer's Declaration" for the English Weekly called "Punjab Punch", under section 7 of the Ordinance, and submitted a declaration, in Form 'B' before the District Magistrate, Lahore. Mr. Muzaffar Qadir petitioner appeared before the learned District Magistrate as an "agent" of said Muhammad Sarfraz, which is permissible under section 7. The District Magistrate, Lahore, authenticated the said declaration on 6-3-1971, under section 12 of the Ordinance. (e) Mr. Hussain Naqi petitioner No, 2 filed a "Publisher's Declaration," in Form 'B', for the same magazine and that too was authenticated by the District Magistrate, Lahore. (f) Sometime thereafter Mr. Muzaffar Qadir started printing the 'Punjab Punch', in accordance with the terms of the aforementioned agreement dated 18-5-1970. The name of Mr. Muzaffar Qadir appeared on the magazine as the Printer thereof in different styles, which are mentioned in paragraph No, 7 of the Written Statement filed by the respondent. According to the petitioners, these variations in the print-line were only in respect of 'style'. The variations in question have been mentioned in paragraph No, 7 of the Written Statement as follows :- (i) "Printed at Packall Printers", (ii) "Printed under the management of Muzaffar Qadir at Packall Printers", and (iii) "Printed at Packall Printers by Muzaffar Qadir". (g) Copies of every issue were sent by the petitioners regularly to the relevant authorities as required by section 45 of the Ordinance. (h) Some articles, severely criticising the present Government, or the head of the Government of Pakistan, appeared in certain issues of the said magazine. (1) The Printer's Declaration under section 7 relating to this Weekly, was annulled by the District Magistrate on 12-1-1972 but was restored on 21-1-1972. (j) Some articles containing scathing criticism of the Government were published in the issue of Punjab Punch dated 20-2-1972. These are mentioned in a copy of the charge-sheet served on Muzaffar Qadir, petitioner, when he was tried for an offence under Martial Law Order No, 89 (1) (c) and (d). On the next day, i,e, on 21-2-1972, the declaration of the said Weekly, under section 7, was again annulled. (k) The petitioner thereupon filed Writ Petition No, 168/72, challenging the legality of the annulment. (1) The annulment was, however, withdrawn by the Government, of its own motion, and the writ petition was disposed of as having borne fruit. (m) Between 2-3-1972 and 2-4-1972 more articles, bitterly criticising the Government and the head of the Government, appeared in the said Weekly which (according to the petitioner), were considered objectionable by the Government and gave rise to serious resentment against the petitioners. (n) The petitioners came to know that they were going to be arrested. They, therefore, applied for bail before arrest through a Writ Petition (No, 2860/72). The Advocate-General of Punjab, while
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arguing the case on behalf of the Government, is said to have stated that the apprehension of arrest was merely a "figment of petitioners' imagination." (o) On this, the petitioners amended the writ petition, with the permission of the Court, and certain contentions were added which converted the writ petition into one of quo warranto, challenging, inter alia, the capacity of the then President of Pakistan, to hold the office of Chief Martial Law Administrator. (p) Martial Law was, however, lifted shortly thereafter and the Interim Constitution came into force. The above-noted contentions raised in the quo warranto petition, therefore, no longer required decision and the writ petition became infructuous. (q) During the pendency of the writ petition, however, a case under Martial Law Order Nos. 89 and 16(a) was registered against the petitioners on 5-4-1972. Mr. Hussain Naqi was arrested on the same day, while Mr. Muzaffar Qadir was arrested on the next day. (r) On 6-4-1972 (i,e, on the next day) Martial Law Order No, 259 was promulgated, which prohibited the publication of the Punjab Punch as well as two Urdu magazines known as Zindgi and Urdu Digest (which, too, had published articles criticising the Government). The printing or publication of these periodicals was also made a penal offence. (s) The Printers and Publishers of all the three magazines challenged the ban imposed upon their publications by Martial Law Order No, 259, through separate writ petitions filed in the High Court, which were, however, heard together. The present petitioners filed Writ Petition No, 404 of 1972 on 10-4-1972. (t) The charge-sheet sent by Military Court to Mr. Muzaffar Qadir petitioner in the case under Martial Law Orders Nos. 89 and 16(a) mentions him as the 'Printer of the Weekly Punjab Punch'. (u) Since Writ Petition No, 404 of 1972 filed by the petitioners was still pending before it, the High Court passed an order expressing "hope and desire" that the Military Court would not convict and sentence the petitioners for the offences under the Martial Law Orders Nos. 89 and 16(a) during the pendency of the writ petition. The Advocate-General, Punjab, is said to have given an undertaking that the "hope" expressed by the High Court shall be honoured. The Military Court, however, went ahead with the trial and passed an order convicting the two petitioners on 13-4-1972 and sentencing them to 2 years' R. I. And a fine of Rs, 1,00,000 each on each count. Similarly the Printers and Editors of Zindgi and Urdu Digest were also convicted and sentenced under the same Martial Law Regulations. On the next day (i,e, 14-4-1972), Mrs. Shamim Qadir, the wife of petitioners No, 1 filed a habeas corpus application (Criminal Miscellaneous No, 190/H of 1972), for production of the petitioners and the suspension of the sentences were suspended by the High Court. Mr. Muzaffar Qadir also filed an application praying for the institution of contempt proceedings against the President of the Summary Military Court. (v) Martial Law was lifted on 21-4-1972. (w) Muzaffar Qadir petitioner was let off by the Government of its own motion on 28-4-1972. (x) A Full Bench of the High Court, consisting of five Judges, delivered the judgment in Writ Petition No, 404 of 1972 on 8-7-1972 and held, inter alia, that the detention of the petitioner under orders of the Military Court was illegal (for non-compliance) with certain procedure laid down by the Army Act). ' The Government filed an appeal against the decision of the Full Bench, which was accepted. According to the petitioners' counsel one of the reasons for the same was that the Supreme Court was assured by the Advocate-General that the Government did not intend to carry out the sentence awarded to the petitioners. (y) After their release the petitioners wrote a joint letter to the Governor of Punjab on 3-7-1972 saying that since they had been released by the Government of its own motion, they assumed that the embargo on the publication of their papers had also been removed. It was also added that if
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they did not hear anything to the contrary from the Government they will assume that the Government had granted them permission for starting the publication of the said Weekly. A copy of this letter was also sent to the Director of Publications. This letter is said to have been received by the latter on 6-7-1972. A reply to it was however sent by the Director of Publications, Punjab, on 25- 7-1972. The reply did not touch the petitioners' contention and, instead stated that since the petitioners had not printed the Weekly magazine for more than two weeks during the period between 3rd April 1972, to 8th July 1972 (while petitioner No, 1 was under detention for the offences under Martial Law Orders Nos. 89 and 16(a), their declaration (under section 7 of the Ordinance), had lapsed. (z) On 27-7-1972, the District Magistrate, Lahore, issued Search Warrants under section 37(2) of the Ordinance and the publication was seized. (aa) The petitioners then filed another writ petition (No, 1048/72), which was dismissed by the learned Chief Justice sitting in Single Bench. (bb) The petitioners thereupon filed a Letters Patent Appeal No, 148 of 1972 which was accepted by a Division Bench of this Court on 22-6-1972. (cc) The Government filed a petition for Special Leave to Appeal against the judgment of the Division Bench which was accepted but the Supreme Court did not suspend the judgment of the High Court in the L. P. A., according to which declaration under section 7 relating to the Punjab Punch had not been annulled. The main appeal is still pending before the Supreme Court. (dd) In the meanwhile, on 25-8-1973, the District Magistrate, Lahore again issued Search Warrants under section 37(2) of the Ordinance authorizing the D. S. P. Named therein to search the premises of the Packall Printers and seize any document which, in his opinion, were unauthorised publications, printed since 24th June 1973, or any subsequent issues. The D. S. P. Thereupon conducted the search and seized a number of copies of the Punjab Punch lying therein, as 'unauthorised publications'. (ee) Moreover, a news-item appeared in the 'Pakistan Times' of 19-8-1973 stating that the District Magistrate, Lahore had also initiated proceedings under sections 54 and 56 of the Ordinance against Muzaffar Qadir petitioner No, I (A photostat copy of the same is attached as Annex. 'E' with the petition). The petitioners have, therefore, filed the present writ petition challenging the legality and validity of the aforementioned Search Warrant issued by the District Magistrate on 25-8-1973, as well as the institution of proceedings under sections 54 and 56 of the Ordinance by him against the petitioners. 3. Mr. M. S. Baqir and Dr. Khalid Ranjha, Advocates appeared on behalf of the petitioners and Mr. Abdus Sattar Najam, Assistant Advocate-General (II), appeared for the State (respondent). I have heard the learned counsel for the both sides at length. The case had, however, to be adjourned a number of times due to the fact that certain important habeas corpus matters were pending before different Judges of this Court and sometimes the learned counsel for the parties were busy in some of these cases and while on some other dates they conceded that the habeas corpus matters, pending with me, took precedence over their case and agreed to an adjournment. The case was therefore, heard piece-meal. 4. Before discussing the contentions raised by the learned counsel for the parties on the main questions in issue I may mention two developments that took place during the hearing of the writ petition. The first of these is that on 2-10-1973 Dr. Khalid Ranjha, Advocate who appears to have replaced Mr. M. S. Baqir as the counsel for the petitioners, filed an affidavit sworn by petitioner No, 1 containing a number of facts with regard to the background of the case. Six documents were also appended with this affidavit. The learned A. A.-G. (II) objected that no document which was in the
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possession or power of a party on the first date of hearing of the petition, but had not been produced by him by that date, should be received at any subsequent stage and relied on :- (a) Allah Ditta v. A. F. Ahmad PLD 1954 Lah. 608. (b) Ghulam Muhammad v. Shah Wall PLD 1956 Lah. 756. (c) Lahore Improvement Trust v. Karamat Ali PLD 1959 Lab. 597. ' This contention is based on Order XIII, rule 2 of the Civil Procedure Code. For a proper understanding of this contention rules 1 and 2, Order XIII, C. P. C. May be reproduced here in extenso :O. XIII, r. 1, C. P. C. (1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power; on which they intend to rely, and which has not already been in Court, and all documents which the Court has ordered to be produced. (2) The Court shall receive the documents so produced. Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. ' No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof ; and the Court receiving any such evidence shall record the reasons for so doing. It is now well settled that writ petitions (under the Constitution) are not strictly governed by the procedure prescribed in the Civil Procedure Code or the Orders and Rules contained in the First Schedule thereto, but the broad rules of the said Code may be applied to writ petitions as well. Refs. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty (1). ' The object of the aforementioned Orders and rules is to exclude forged documents and they are not meant to exclude genuine documents. If there be no doubt as to the authenticity of a document (and its admission is not likely to delay the trial of the suit or hearing of the writ petition as the case may be), its reception even at a late stage is not barred by the afore-mentioned provisions. Refer Lahore Improvement Trust v. Messrs Khuda Bakhsh Meraj Din (2). ' The authorities cited by the learned Assistant Advocate-General (II) do not, in any way, detract from this principle. In any case, they are not applicable, because I am not inclined to accept or receive any of the documents appended by Dr. Khalid Ranjha, Advocate, with the affidavit of petitioner No, 1 and, as such the provisions of Order XIII, rule 2 are, therefore, not attracted. However, the objection raised by the learned Assistant Advocate-General does not apply to the affidavit itself, which is not the document within the meaning of Order XIII, rule 2, C. P. C. And contains nothing more than the details of the background of the case, many of which have already been mentioned in the writ petition and were admitted in the written B statement, filed on behalf of the respondent. This affidavit can be treated either as an amendment of the writ petition, made by the new counsel, to which there is no bar, or it can be treated as a 'Replication' filed by petitioner' No, 1, in answer to the paragraph No, 3 of the Preliminary Objection in the Written Statement of the respondent, wherein it is stated that "the allegations of mala fide are not expressed and detailed." In the first place the petitioner has the right to furnish these details by way of replication and secondly the facts mentioned therein are borne out by the record of the various writ petitions and other applications filed by the petitioners or the respondents {{FOOT NOTE}} (1) PLD 1957 Lah. 706 (2) PLD 1956 Lah. 252 {{FOOT NOTE}}
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' in this Court, or before the Supreme Court, and have not, in fact, been denied by the respondents through a counter affidavit or otherwise. In this view of the matter the objection raised against receiving the affidavit is not sustainable. ' The second development which took place during the hearing of this writ petition was that on 4- 10-1973 the learned Assistant Advocate-General (II) produced a file containing certain documents. Those were :- (a) A letter dated 15-9-1973 by Muhammad Sarfraz addressed to the District Magistrate, Lahore saying that he had sold some machinery of the press to "Shamim Publications." (b) A declaration in Form 'A' (under section 4 of the Ordinance), submitted with regard to a press and some other machinery, by one Sikandar Hayat, as "Keeper of the Press" and is accompanied by an authority letter signed by one "Shamim Qadir", the proprietress of the press, saying that Sikandar Hayat is authorised to file the aforementioned declaration. (c) An affidavit dated 17-9-1973 by the aforementioned Sikandar Hayat, saying that he has never been involved in any criminal case. 5. The learned Assistant Advocate-General (II) contended that the new facts and circumstances disclosed by these documents render the writ petition infructuous because Muhammad Sarfraz, having sold his Press, was no longer the owner of the Press and consequently did not remain a 'Printer' either. He argued further that as a result, Mr. Muzaffar Qadir petitioner No, 1, automatically ceased to be the 'Manager' of the Press. ' The learned counsel for the petitioners however controverted this contention and submitted that Muhammad Sarfraz had not sold his entire Press and has sold only some machinery (even though it may constitute a Press in itself) ; that as such, was still in possession of a Press within the meaning of the expression as defined in clauses (k) and (m) of section 2 of the Ordinance, because books, newspapers and news-sheets etc. Can still be printed with the machinery left with him ; that the 'Printer's Declaration' of Muhammad Sarfraz has, therefore, not lapsed, and that Mr. Muzaffar Qadir, petitioner No, 1, still continues to be his 'Manager' for the purpose, inter alia, of printing the Punjab Punch. 6. It will be noticed that the machinery mentioned in the aforementioned letter of Muhammad Sarfraz, as having been sold to `Shamim Publications' includes the machinery, that was mentioned by him in the Declaration, in Form 'B', submitted by him to the District, Magistrate Lahore, under section 7 of the Ordinance. From this it can be argued that Muhammad Sarfraz has in fact sold the entire Press, on the basis of which he had obtained the authentication of his declaration under section 12. But a study of Form 'B', as prescribed in the Schedule to the Ordinance, would show that a person making a Declaration in that Form (under section 7), is not required to give the details of the machinery of which his Press consists, as there is neither any separate column, nor space, provided for giving such details. Therefore in the first place, it cannot be said with any certainty whether the machinery mentioned by Muhammad Sarfraz, in the Declaration (in Form `B') submitted by him, was his total machinery and, secondly, it cannot be said that after having sold the machinery mentioned by him, in the said Form (Form `B'), no other machinery, which may, by itself, constitute a Press, is left with him. I am of the view that an authenticated Printer's Declaration under section 7 is valid as long as the person concerned owns or keeps a 'Press', irrespective of the nature or the identity of that Press, because otherwise it would have been made obligatory for the declarant to specify in Form 'B' (prescribed by the Government under section 7), the details of the machinery of which the press in question (with regard to which authentication of the declaration is sought), consists. 7. The result is that in the circumstances of the present case it cannot :C be said that the authenticated Printer's Declaration (under section 7) obtained by, or issued in favour of, Muhammad Sarfraz came to an automatic end on the sale of the machinery mentioned by him in
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the said declaration and, consequently, the agreement between him and Muzaffar Qadir petitioner No, 1 also cannot be said to have terminated, or come to an automatic end. I am, therefore, of the view that the aforementioned papers produced by the learned A. A.-G. (II) do not affect the maintainability of the present writ petition. 8. In this view of the matter I proceed to consider on merits the contentions raised in respect of the two prayers made in the writ petition. The first question to be considered is whether the Search Warrant issued by the District Magistrate, Lahore, on 25-8-1973, is legal and valid. In other words, was it made with lawful authority and had legal effect. ' Before expressing any view on this question it will be useful to reproduce the relevant portion i,e, subsections (1) and (2) of section 37 of the Ordinance, which provide for the issuance of Search Warrants empowering the seizure of newspapers and news-sheets. ' Section 37 (1). "Any police officer, or any other person empowered in this behalf by the Government, may seize any unauthorised news-sheet or unauthorised newspaper, wherever found. ' Section 37 (2). Any District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class may, by Warrant authorise any police officer not below the rank of Sub-Inspector to enter upon and search any place where any stock of unauthorised news-sheets or unauthorised newspapers may be or may be reasonably suspected to be and such police officer may seize any documents found in such place which, in his opinion, are unauthorised news-sheets or unauthorised newspapers." (The underlining* is mine). ' It would be noticed that these provisions empower the seizure only of "unauthorised" news-sheets or news-papers. The definition of the words `News Papers' and News-sheets' is given in section 2 (g) and (h) respectively. It would also be noticed that 'Newspapers' and 'News-sheets' are dealt with or governed by different provisions of the Ordinance. 'News-sheets' are governed by section 36 which occurs in Part V of the Ordinance, while 'News papers' are governed by the provisions in Part III of the said Ordinance. From a reading of the definitions in clauses (g) and (h) of section 2 of the Ordinance it is clear that the Punjab Punch is a `News-paper'. I shall, therefore, confine myself to provisions in the Ordinance relating to 'Newspapers' only. As already mentioned above 'Newspapers' are dealt with in Part III *[Here in italics] *[Here in italics) ' of the Ordinance, beginning with section 5. Section 7 also falls in this part. It would be useful to reproduce the provisions of section 7 :- Section 7. . "The printer and the publisher of every newspaper shall appear in person or by agent authorised in this behalf in accordance with the rule before the District Magistrate within whose local jurisdiction such newspaper shall be printed or published, and shall…
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