' Writ Petitions Nos.2271 of 2001 and 2351 of 2001 assailing the same order dated 13-6-2001 passed by District Magistrate, Islamabad, are being disposed of through this judgment as common questions of law and fact are involved in both these petitions.
2. The relevant facts are that Mr. Sardar Khan Niazi (respondent No,4 of Writ Petition No,2271 of 2001 and petitioner in Writ Petition No,2351 of 2001), hereinafter referred as respondent No,4, styling himself to be the Chairman, Board of Directors, Daily "Pakistan", submitted an application before District Magistrate, Islamabad Capital Territory, on 22nd March, 2001, for transfer of declaration of the said Daily in his name after the cancellation of the same from the name of Mr. Umar Majeed Shami (the petitioner of Writ Petition No,2271 of 2001), hereinafter referred as petitioner, with the contention that he was authorized by the petitioner/publisher for the transfer of declaration in his name. The District Magistrate, in order to ascertain the factual position, constituted a four Member Committee comprising District Attorney (Convenor), Assistant Commissioner (Rural), Islamabad, Secretary, I.T.A. Islamabad, and City Magistrate, Islamabad. The Committee submitted its report on 2-5-2001 pointing out the following violations and irregularities committed by the petitioner in his capacity as publisher of the Daily "Pakistan".
(i) That at the time of filing of declaration under section 7 of the Registration of Printing Press and Publications Ordinance, 1995, the petitioner had declared himself to be a Printer of a press whereas no printing press in Islamabad existed in his name, hence the declaration form filed by him was false;
(ii) the publication of Daily "Pakistan" is being carried out from the Printing Press known as Barex Limited, Chughtai Plaza, Islamabad, whereas the said press has not been registered in the name of the petitioner, and
(iii) that the petitioner left Pakistan without intimating the District Magistrate and without authorizing any person to discharge duties of Printer and Publisher on his behalf, as required under section 11 of Registration of Printing Press and Publications Ordinance IV of 1995.
3. The District Magistrate thereafter issued notices dated 4-5-2001 and 21-5-2001 to the petitioner to appear before him within seven days and explain his position and finding no response, published notices in Daily "Observer", Islamabad, and Urdu Daily "Pakistan" directing the petitioner to appear before him on 12-6-2001 at 12-30 p.m. Alongwith record of the declaration. Since, the petitioner failed to appear before the District Magistrate on 12-6-2001 or on 13-6-2001, ex parte proceedings were taken against the petitioner and the impugned order was passed. The District Magistrate held that the petitioner's absence showed that he had nothing to say in his defence. He agreed with the findings of the Committee and held that the declaration issued in the name of the petitioner could not be allowed to continue and cancelled the same. As far as the request of respondent No,4 for the transfer of declaration of Daily "Pakistan" in his name, it was held that there was nothing tangible on record to suggest that he was entitled for the said declaration and advised him to apply afresh, so that his case can be considered on merit after completion of codal/legal formalities as envisaged in Registration of Printing Presses and Publications Ordinance, 1995.
4. It may further be mentioned here that the Press and Publications Ordinance XXX of 1963 was repealed by the Registration of Printing Press and Publications Ordinance I of 1989, which did not receive the Parliamentary assent and lapsed at the expiry of 120 days, under Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. Similarly, successive Ordinance on the subject namely Registration of Printing Press and Publications Ordinance XIII of 1989, Ordinance III of 1990, Ordinance IV of 1995, Ordinance XXXV of 1996, Ordinance XCVI of 1996. And Ordinance No,XLVIII of 1997, also lapsed.
5. I have heard the lengthy arguments of Mr. Muhammad Akram Sheikh, Senior Advocate, representing the petitioner, Mr. Habib-ul-Wahab-ul-Khairi, Senior Advocate, representing the respondent No,4, Kh. Saeed-uz-Zafar, Deputy Attorney-General for Pakistan and Mr. Maqbool Elahi Malik, Advocate-General, Punjab, and have also seen the relevant record, copy of which has been attached with these petitions.
6. The precise legal issue involved in these petitions is whether any Press Law governing the Printers and Publishers of daily Newspapers is in existence or not.
7. It has been submitted by the learned counsel for the petitioner that the impugned, order dated 13-6-2001 cancelling the declaration of daily Pakistan, Islamabad, issued in the name of the petitioner is manifestly without lawful authority and of no legal effect, the last of the Ordinances namely The Registration of Printing Press and Publications Ordinance No, XLVIII of 1997 promulgated by the President of Pakistan w,e,f, 11-3-1997 in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973, lapsed at the expiry of 120 days (four months) from its promulgation under the above Article, therefore, the assumption of jurisdiction by the District Magistrate, Islamabad, under the above Ordinance or under the Ordinance IV of 1995, referred to by him, was without lawful authority, that the stand being taken by the learned counsel for respondent No,4 that the West Pakistan Press and Publications Ordinance XXX of 1963 stood revived on the repeal of the last of the Ordinances on the subject i,e, Ordinance XLVIII of 1997, is untenable keeping in view the language of Articles 89 and 264 of the Constitution of the Islamic Republic of Pakistan, 1973. Article 89 of the Constitution, unambiguously, provides that the effect of expiry of an Ordinance is that of repeal and under Article 264 of the Constitution, it is clearly stated that a law repealed or deemed to be repealed, by under or by virtue of the Constitution, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect, since the Ordinance XXX of 1963 was not in force when the Ordinance XLVIII of 1997 lapsed, therefore, it cannot be deemed to have revived the above said Ordinance of 1963.
Reference in this regard is placed on Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan through the Chief Secretary to Government of West Pakistan, Lahore and 454 others PLD 1970 SC 146 wherein it was observed by the august Supreme Court at page 157:-- Coming now to the question as to what is the effect of the non-placing of the Ordinance before the Legislature for its approval. As already indicated, under clause (4) of Article 79 of the 1962, Constitution, the Ordinance is to cease to have effect and is `to be deemed to have been repealed'.
Now the consequences of the repeal of a statute are provided in Article 250 of the Constitution itself. It is, inter alia, to the effect that 'where a law is repealed or is deemed to have been repealed, by under, or by virtue of this Constitution, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law.
' It is not necessary to quote the rest of the Article, but from what have been quoted above it will appear that the High Court was right in taking the view that the repeal effected by the Ordinance remained effective even after the Ordinance itself was deemed to have been repealed.
' As stated by Maxwell in the Interpretation of Statute (11th Edition) at page 389, the common law rule undoubtedly was that the repeal of a repealing enactment 'revived the first ab initio' but since the passing of the Interpretation Act, 1889, the rule does not apply to repealing statutes passed after 1850. The rule now is that 'where an Act repealing, in whole or in part, a former Act is itself repealed, the last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them'. Article 250 of the Constitution of 1962 appears to have adopted the latter rule."
8. It has further been argued that in the case of Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26 also supports the view at pages 42 and 43 that when an Ordinance lapses after the time stipulated under Article 89, the effect of its repeal is to be determined in view of Article 264 of the Constitution of Islamic Republic of Pakistan, 1973.
9. The learned counsel further argued that it is settled law that power to promulgate an Ordinance under Article 89 of the Constitution was provided with the object to prevent chaos and disruption of administration of justice and there was no other mechanism to fill the vacuum provided for by the Constitution. The President acts under Article 89 of the Constitution under the state necessity to provide for the legal cover and bringing to book the violators of rights of citizens in person, body and property and this is so even if an Ordinance has to be repromulgated time and again on lapse of the same with or without intervals. Reliance is placed on Mahmood Hassan Harvi v. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad and 3 others PLD 1999 Lah.
320, Rehmat Khan v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 3 others PLD 1993 Lah. 70 (upheld by the august Supreme Court in Noor Muhammad and others v. Ghulam Mustafa and others 1999 SCMR 264) and Riaz Ahmed v. The State 1998 SCMR 1729, on repeal of Ordinance due to lapse of time, if a vacuum is created due' to failure of the Federation to repromulgate the Ordinance, there is no mechanism provided by the Constitution to fill the same and, therefore, for the protection of any of the fundamental rights contained in Chapter I of Part II of the Constitution, an appropriate direction under Article 184(3) and Article 199(1)(c) can be given 'against any person or authority for the enforcement of fundamental rights in case of legislative vacuum. It may be mentioned here that history of Ordinance making power detailed in paras. 6 to 12 of the order passed by a Division Bench of this Court reported in PLD 1999 Lah. 320 (supra) provides an interesting reading.
10. It was submitted next that the impugned order is based on violations of settled principles of natural justice inasmuch as the petitioner was condemned without being heard, no prior notice whatsoever was served upon the petitioner by respondent No,1 before passing the impugned order, which is clearly penal in nature, that the impugned order is coram non judice, mala fide and colourable exercise of power on part of the respondent No,1/District Magistrate, Islamabad Capital Territory, Islamabad, against the petitioner, report of the committee constituted by the respondent No,1 is neither based on evidence nor supported by any authority or law, the impugned order is based on connivance of the respondent No,1 with respondent No,4, respondent No,4 has illegally attempted to get the declaration of- daily Pakistan, Islamabad transferred in his name, respondent No,l. Has cancelled the declaration of the petitioner on false and frivolous grounds, respondent No,4 falsely contended before the respondent No,1 that the petitioner had consented to the transfer of the declaration of daily Pakistan, Islamabad, in the name of respondent No,4, whereas no such evidence in this regard was ever placed before respondent No,1, respondent No,4 also misled the respondent No,1 by claiming but mischievously not printing the Court Notice issued by the respondent No,1 in the Daily Pakistan, Islamabad, on June 10, 2001, even copy of the notice to the petitioner was never pasted at some conspicuous part of the premises, where the publications of Daily Pakistan is carried out, a copy of the decision of the respondent No,1 dated 13-6-2001 was provided to the petitioner at his residential address in Islamabad whereas this address was never used, astonishingly though for the purposes of effecting service of the notice of the proceedings undertaken by the respondent No, 1 .
11. The learned counsel, in the end and in the alternate, has argued that if the West Pakistan Press and Publications Ordinance XXX of 1963 is to be treated as a permanent statute and is to be treated as having been revived on the lapse of the last of the Ordinances, mentioned above, even then the Ordinance XXX of 1963 is no more effectively in the field because by virtue of Federation of Pakistan and others v. Public at large and others PLD 1988 SC 202 (Shariat Appellate Bench), the provisions of sections 4, 9, 10, 12, 23, 24, 48 and 49 ceased to have any effect from 30-9-1988 and, therefore, the District Magistrate, Islamabad, had no jurisdiction to deal with the matter and in the vacuum this Court under Article 199(c) can pass appropriate orde Rs,
12. Mr. Majeeb-ur-Rehman Shami, the Editor of Daily Pakistan and father of the petitioner, also appeared in the Court and further stated that the respondent No,4 was Incharge of the Islamabad Office of Daily Pakistan and he malafidely never brought to his notice or to the notice of petitioner that he had applied to the District Magistrate, Islamabad, for cancellation of the declaration from the name of petitioner and for transfer of the same in his name and he concealed a material fact from the District Magistrate, Islamabad, that the Court's notice was not published in the Islamabad Edition of Pakistan but was in fact published in the Azad Kashmir Edition of Daily Pakistan. He has also expressed his anxiety over the non-existence of any proper law on the subject and has further submitted that great difficulties are being faced by the publishers due to the non-framing of any Press Law, resulting in illegal control of the presses of Pakistan by the bureaucracy.
13. Mr. Habib-ul-Wahab-ul-Khairi, Advocate, representing the respondent No,4, on the other hand, has submitted that the West Pakistan Press and Publications Ordinance XXX of 1963, was a permanent statute, it was approved by the Provincial Assembly of West Pakistan, in pursuance of clause (3) of Article 79 of the Constitution of Republic of Pakistan, 1962, at its meeting held on 20- 12-1963 and was published in the Gazette of West Pakistan on the same day and the confusion has arisen merely because it has been termed as an Ordinance throughout and this is so because under Article 79(3) of the Ordinances approved by the Assembly were deemed to have become an Act and the Assembly while approving it did not change its name, that it is settled law that when a permanent Act is repealed by an Ordinance, the Act will revive on the expiry of the Ordinance and the repeal effected by the temporary legislation is only a temporary repeal, the Registration of Printing Presses and Publications Ordinance No,XLVIII of 1997, which was never placed before the Assembly for approval and stood repealed on the expiry of four months period from the date of its promulgation in accordance with the provisions of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973, and on its repeal, the permanent statute i,e, The West Pakistan Press and Publications Ordinance XXX of 1963 stood revived and is in the field. Reliance in this regard has been placed on the observations made by the Honourable Supreme Court at pages 204 to 213 in the judgment reported as Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another PLD 1995 SC 66 and Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26. In regard to the effect of the judgment delivered by Shariat Appellate Bench of the Supreme Court PLD 1988 SC 202, it is submitted that the Honourable Supreme Court in the concluding paragraph of the judgment directed that the amendments proposed by the Court in sections 4, 9, 10, 12, 23, 24, 48 and 49 of the Ordinance XXX of 1963 were to be carried out by all the Governments concerned by the 30th September, 1988, failing which these sections were to cease to have any effect and the Government in compliance thereof took necessary step and promulgated Ordinance I of 1989 with effect from 8-1-1989 and as the necessary steps were taken by the Government and as the directions were complied with, the abovesaid sections of Ordinance XXX of 1963 did not cease to have any effect from 30-9-1988 and after the repeal of the abovesaid Ordinance I of 1989 and all the successive Ordinances the amendments proposed by the Shariat Appellate Bench of the Supreme Court in the abovesaid judgment shall be deemed to have been incorporated in Ordinance XXX of 1963, that the amendments proposed by the Shariat Appellate Bench of the Supreme Court in the above judgment are in accordance with the Islamic Injunctions and, therefore, if this Court comes to the conclusion that there is a vacuum in law, even then the said provisions will be governed during the interregnum. Reliance in this regard is placed on Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172 (Shariat Appellate Bench). The Honourable Supreme Court had declared certain provisions of Penal Code, 1860 and Criminal Procedure Code, 1898 as repugnant to Injunctions of Islam which declaration was to take effect on 23rd March, 1990. The Attorney-General on behalf of Government of Pakistan, in a review petition, made a statement before Supreme Court that Ordinance relating to enforcement of the provisions of Qisas and Diyat had been drafted and,was at present in the process of final scrutiny which should be completed within a couple of days and the necessary Ordinance promulgated by the 5th September, 1990 and the Review Petition may be disposed of in the light of his statement. The Supreme Court accepted the submission and ordered that the new Ordinance incorporating the provisions relating to Qisas and .Diyat shall be promulgated by 5th September, 1990. Accordingly, it was ordered that the decision of the Court dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the Injunctions of Islam and which was to take effect on 23rd March, 1990 PLD 1989 SC 633, would now, on the disposal of the review petition, shall take effect on 12th day of Rabi-ul-Awwal 1411 A.H. On which day the said provisions to the extent they were declared and held to be repugnant to the Injunctions of Islam, shall cease to have effect. The Honourable Supreme Court further held as follows:-- ".... It is also held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.H., the said provisions would nevertheless cease to have effect on 12th Rabi- ul-Awwal. In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutates mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi- ul-Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vacuum in the statute law on the subject. In the aforevisualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic Law/Injunctions of Islam as contained in Qur'an and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable. All these matters stand disposed of."
14. The learned counsel for respondent No,4, on the strength of the directions issued by the Supreme Court in the Review Petition PLD 1990 SC 1172, has submitted that during the interregnum till a new statute is enacted, in accordance with the directions issued by the Honourable Supreme Court PLD 1988 SC 202, Islamic Injunctions are to be followed, in accordance with the amendments proposed by the Honourable Supreme Court. It has been reiterated that this Court has the jurisdiction to incorporate the abovesaid provisions of Ordinance I of 1989 in the Ordinance XXX of 1963 and reliance in this regard has been placed on Al-Jehad Trust through Habibul Wahab Al- Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 and Human Rights Cases 1993 SCMR 2001. In the end, it has been argued that the petitioner is not a Printer, therefore, tie cannot be a Publisher as he had filed a wrong declaration, therefore, the District Magistrate had rightly cancelled his declaration.
15. Kh. Saeed-uz-Zafar, the learned Deputy Attorney-General, has submitted that after the lapse of Ordinance XLVIII of 1993, the Ordinance XXX of 1963, which is a permanent legislation, stood revived.
He has also argued that at the repeal of the temporary legislation, the permanent legislation revives and has placed his reliance on Pir Sabir Shah's case (supra) and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602. He has, however, further submitted that the arguments of the learned counsel for respondent No,4 that the amendments proposed by the Shariat Appellate Bench of the Supreme Court in Federation of Pakistan and others v. Public at large and others (supra) incorporated in Ordinance I of 1989 and after its repeal/lapse are to be incorporated and read in Ordinance XXX of 1963 are incorrect, for the reason that they contain numerous procedural provisions and the effect of the repeal/lapse of the last Ordinance i,e, Ordinance XLVIII of 1997, the provisions of sections 4, 9. 10, 12, 23, 24, 48 and 49 are no more in existence and this Court in the exercise of its Constitutional powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has no jurisdiction to issue directions of incorporation of certain provisions of Ordinance I of 1989 in Ordinance XXX of 1963 and this Court does not enjoy the jurisdiction which is additionally given to the Honourable Supreme Court in Article 184 of the Constitution. He has, therefore, argued that the District Magistrate has erroneously assumed the jurisdiction under a law, which does not exist and due to the vacuum in law, the principles of Islamic common law have become applicable and the application of respondent No,4 (petitioner of Writ Petition No,2351 of 2001) shall be deemed to be pending and will have to be decided afresh by the competent authority under the law. He has further submitted that a new Ordinance has been drafted and is likely to be placed before the Cabinet in a month's time and, therefore, the application of respondent No,4 'can be decided by the competent authority under the new Ordinance which is likely to be promulgated soon. In regard to the factual controversy surrounding the petitioner's declaration, it is submitted that this Court in the exercise of the Constitutional jurisdiction may not like to substitute its own opinion with that of the Tribunal.
Reliance in this regard has been placed on Shah Jahan and others v. Syed Amjad Ali, Hawaldar and others 2000 SCMR 88.
16. Mr. Maqbool Elahi Malik, Advocate-General, Punjab, has submitted that Ordinance XXX of 1963, was not in the field when the last Ordinance No,XLVIII of 1997 lapsed and, therefore, the same was never revived. He has placed his reliance on Muhammad Akhtar Hussain and 4 others v.
Government of West Pakistan through the Chief Secretary to Government of West Pakistan, Lahore and 454 others PLD 1970 SC 146, Mahmood Hassan Jiarvi v. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad and 3 others PLD 1999 Lah. 320 and Rehmat Khan v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and 3 others PLD 1993 Lah.
70.
17. Avoiding the repetition, on the strength of the law laid down by the Supreme Court in Pir Sabir Shah's case PLD 1995 SC 66 and Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26, it can be safely said that by now it is settled law that repeal effected by a temporary legislation is only a temporary repeal and a permanent Act revives on the expiry of the Repealing Ordinance. The Honourable Supreme Court while deciding Federation of Pakistan and others v. M. Nawaz Khokhar and others (supra) affirmed the law laid down by it in Pir Sabir Shah's case PLD 1995 SC 66 at pages 204 to 213.
18. It is, therefore, held that on the expiry of Ordinance XLVIII of 1997, Ordinance No,XXX of 1963, being the permanent legislation, having been approved by the Assembly, stood revived. However, Ordinance XXX of 1963, though revived, is no more effectively in existence because a large number of its provisions, referred to above, were declared to be against the Injunctions of Islam, by the Honourable Supreme Court in Federation of Pakistan and othefs v. Public at large and others PLD 1988 SC 202 and ceased to have effect from 30th of September, 1988. The arguments of the learned counsel that the amendments proposed by the Honourable Supreme Court in sections 4, 9, 10, 12, 21, 24, 48 and 49 of Ordinance XXX of 1963 are to be incorporated and read in the same, have no force.
This Court has no jurisdiction in this regard and has no law-making power. It cannot be declared by this Court that amendments proposed by the Supreme Court have become part of a statute.
The Honourable Supreme Court while proposing amendments PLD 1988 SC 202 held that if the said amendments were not carried out by the concerned Government by 30-9-1988, said sections shall cease to have effect and that is the law now. Sections 4, 9, 10, 12, 23, 24, 48 and 49 are, therefore, no more part of Ordinance XXX of 1963. Reference in this regard to the directions issued by the Supreme Court in the Review Petition PLD 1990 SC 1172 is also of no avail because in the said case the Supreme Court itself issued directions that in case no such amending Ordinance was promulgated or if the same after its promulgation lapsed, the Courts were to allow the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt). In the present case no such directions were issued.
19. It is, therefore, held that the provisions of sections 4, 9, 10, 12, 23, 24, 41 and 49 are no more part of Ordinance XXX of 1963 and the District Magistrate acted illegally in assuming the jurisdiction under the same or the similar provisions of Ordinance IV of 1995 or Ordinance XLVIII of 1997, which had lapsed long ago.
20. I am further of the view that because of the vacuum in law, the Government of Pakistan being the Constitutional Authority, through its Secretary, Ministry of Information and Media Development, has the jurisdiction to settle such-like disputes, in the meanwhile, in accordance with the Islamic Common Law.
21. In view of the above discussion, the Writ Petition No,2271 of 2001 is partly accepted, the impugned order dated 13-6-2001 passed by District Magistrate, Islamabad is declared to be without jurisdiction and is set aside, the application of respondent No,4 shall be deemed to be pending before Secretary, Ministry of Information and Media Development Government of Pakistan, who shall decide the same afresh, after giving an opportunity of being hearing to both the parties, in accordance with Islamic Common Law. The Writ Petition No,2351 of 2001 is also accordingly disposed of. It is further directed that if in the meanwhile, new law, which is allegedly at the draft stage, is promulgated or enacted, then the application of respondent No,4 shall be decided by the competent authority under the said law. There are no orders as to costs.