ALI SAIN DINO METLO, J. --- The present appeal, bearing Miscellaneous Appeal No. 08 of 2004, filed under Section 20 of the Press, Newspaper, News Agencies and Books Registration Ordinance, 2002 (XCVIII of 2002) is directed against order dated June 3, 2004 passed by the District Co-ordination Officer. City District Government, Karachi (Mir Hussain A.I) withdrawing authentication of appellant's declaration as publisher of Urdu newspaper daily `Pakistan' Karachi on the ground that he had obtained it by `concealment and misrepresentation of facts' particularly facts regarding dispute and litigation going on between him and respondent No. 4 about publication of the newspaper for various cities of the country.
2. Briefly, the facts', as can be gathered from the record, are that respondent No. 4's declaration for publishing daily 'Pakistan' in Urdu from Karachi was authenticated by the then District Magistrate, Karachi (South) on November 17, 1999. On May 23, 2001, the appellant also filed declaration for publishing a daily newspaper with same title and in same language. The District Magistrate, pending verification of his antecedents, showed his inclination to authenticate it and by his letter dated June 11, 2001 addressed to the Director Information (Press), Government of Sindh, desired for verification of title in his favour observing that the declaration of the respondent No. 4 had automatically become null and void due to his failure to publish the newspaper. The respondent No. 4 was also advised to refrain from publishing the newspaper as, according to the letter dated July 12. 2001 of the District Magistrate, he had failed to deliver gratis copies of the newspaper so as to verify if it was being regularly published. The respondent No. 4 informed the District Magistrate that the newspaper was being regularly published in restricted numbers and copies were also supplied to the concerned departments, further contending that if for any reason some copies were not available in the record of any department, he was prepared to makeup the deficiency.
Taking his contentions into consideration, the District Magistrate. By his letter dated July, 17, 2001, addressed to the Director Information (Press), recommended his case for allowing him to makeup the deficiency.
3. Sensing the inclination of the District Magistrate towards the respondent No. 4 the appellant filed a Constitutional petition, bearing NO. 1723 of 2001 on August 9, 2001 against the District Magistrate, the Director Information and the respondent No. 4, contendinn that the recommendation of the District Magistrate in favour of the respondent No. 4 was illegal and male fide. However, he failed to obtain any stay order. On December 8, 2001,he filed another Constitutional petition, bearing No. 2485 Of 2001, making only the Government of Sindh as party seeking declaration to the effect that the declaration filed by him, having not been rejected within four months, automatically stood granted under Section 12(4) of the Registration of Printing Press and Publications Ordinance. 1997 (XLVIII of 1997) without realizing that the Ordinance had lapsed long back. Nevertheless, on December 13, 2001, he succeeded to get an interim order allowing him to continue publication of the newspaper. Thereafter, he withdrew his first petition, bearing No. 1723 of 2001, on February 26, 2002. While his second petition, bearing No. 2485 of 2001, was still pending, the District Coordination Officer, City District Government, Karachi, authenticated his declaration on March 25, 2003 without giving any finding regarding non-publication of newspaper by the respondent No. 4. However, it seems that on latter's representation, the authentication was withdrawn on April 23, 2003 on the ground that it had been obtained by misrepresentation and concealment of material facts 'With regard to the dispute and litigation pending between the parties about their entitlement. Here it may be mentioned that in the meanwhile the appellant and the respondent No. 4 had also entered into litigation before various for a including the Lahore'High Court and the Hon'ble Supreme Court of Pakistan regarding publication of daily 'Pakistan' from other cities, namely, Islamabad, Lahore and Multan.
4. On appeal, bearing M.A. No. 3 of 2003, filed by the appellant. Order dated April 23, 2003 was set aside on August 15, 2003 by a Division Bench of this Court on the ground that it had been passed without hearing the appellant. The matter was remanded to the District Coordination Officer for fresh decision after hearing the parties with an observation that he would be at liberty to pass any order on the grounds available under Section. 19 of Ordinance (XCVIII of 2002). Thereafter, on December. 19, 2003, C.P. No. 2485 of 2001 was also disposed of in the light of the order passed in M.A. No. 3 of 2003 with a further direction to dispose of the matter as early as possible. The District Coordination Officer, after hearing both the parties, decided the matter on June 3, 2004 and maintained his previous order of withdrawing authentication of appellant's declaration. Mr. Moin Azhar Siddiqui, Advocate for the respondent No. 4 and Messrs Abdul Jabbar Lakho. A.A.G. And Marizoor Ahmad appearing for rest of the respondents have supported the impugned order.
5. Learned counsel for the appellant contended that notwithstanding the observation of this Court in its order dated August 15, 2003 passed in appellant's previous appeal that the District Coordination Officer would be at liberty to pass any order on the grounds available under Section 19 of Ordinance (XCVIII of 2002), he could not withdraw authentication of his acclaration on the ground of publication of the newspaper from other provinces. Therefore, according to him, concealment of facts in the regard was immaterial and inconsequential. According to him, the appellant had filed declaration on May 23, 2001 when (Ordinance XXX) of 1963 was in the field and publication of newspaper from other provinces was not an impediment in its authentication. He argued that respondent No. 4's declaration authenticated on November 17, 1999 for publishing the newspaper from Karachi should be treated as null and void due to non-publication of the newspaper and his declaration filed on May 23, 2001 must be deemed to have been authenticated on expiry of four months i.e. On September 24, 2001 under the provisions of 13 Ordinances issued, from January 8, 1989 to March 10, 1997 in compliance with the directions of the Shariat Appellant Bench of the Hon'ble Supreme Court of Pakistan in the appeals re Federation of Pakistan and others vs. Public. At-,large and others reported in PLD 1988 Supreme Court 202 (Shariat Appellant Bench). Sections 9 and 12 of Ordinance (XXX of 1963) were held to be repugnant to the Injunctions. of Islam inter alia due to omission to prescribe period for taking decision regarding authentication or otherwise of the declaration filed under Section 7 of the Ordinance. The Court directed to prescribe period of four months for doing the needful.
6. We are not persuaded to agree with arguments of the learned counsel. All the 13 Ordinances bearing Nos. 1, 7 and 13 of 1989, 3 and 13 of 1990 LH XCV & CXXI of 1995. XXXV, LXV & XCVI of 1996 and XLVIII of 1997, issued from time to time at different intervals. Containing provision for automatic authentication of declaration on expiry of four months period, had lapsed much before the filing of declaration by the appellant. Ordinance (XXX of 1963) having been approved by the Legislative Assembly and converted into an Act was a permanent law. In view of the law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Pir Sabir Shah vs. Shad Muhammad Khan and others (PLD 1995 Supreme Court 66) and Federation of Pakistan vs. M.Nawaz Khokhar (PLD 2000 Supreme Court 26) it stood revived on the expiry of every temporary repealing Ordinance. It did not contain any provision for automatic authentication of declaration and the directions and recommendations contained in the judgment of the Federal Shariat Court and the Shariat Appellant Bench of the Hon'ble Supreme Court for making the -suggested amendments cannot be treated as amendments themselves particularly when the judgments did not say so. Indeed in our Constitutional set up no Court can assume legislative powers.
7. There is also no force in the argument of the learned counsel for the appellant that in the light of the observation of the Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan and another vs. NWFP Government and others, reported in PLD 1990 Supreme Court 1172 (Sharial Appellate Bench) appellant's declaration must be deemed to have been authenticated on expiry of four months under the common Islamic law as contained in the Qur'an and Sunnah. In this regard it may be mentioned that in the Qur'an and Sunnah there are ample specific provisions for the offences of Qatl and Jurh and it was in the context of such provisions that the Hon'ble Supreme Court had observed that in the event of vacuum the Courts would decide the matters of Qatl and Jurh in accordance with the Injunctions of Islam as contained in Qur'an and Sunnah. Regarding automatic authentication of declaration for publishing a newspaper neither the learned counsel could refer to any verse of tradition nor any such verse or tradition is within our knowledge.
8. The unreported judgment of the Hon'ble Supreme Court, passed on October 6. 1996 in Civil Petition No. 464' of 1995 re-Muhammad Parvez vs. 'Federation of Pakistan also throws light on the subject. In the case of Pakistan through Secretary Ministry of Defence vs. The General Public, reported in PLD 1989 Supreme Court 6 (Shariat Appellate Bench), Section 133 of the Pakistan Army Act, 1952, Section 140 of the Pakistan Navy Ordinance, 1961 and Section 162 of the Pakistan Air Force Act, 1963 were held to be repugnant to the Injunctions of Islam on the ground that they denied right of appeal to the aggrieved person. The Court directed to suitably amend the relevant provision by January 1, 1989, so as to provide a right of appeal against orders passed by a Court Martial. The requisite amendments were made on December 22, 1992. Appeal of an Army Officer considered by a Field General Court Martial in October 1992 was dismissed treating it as a mercy petition. The argument that notwithstanding failure of the government to carry out the necessary amendments within the prescribed period, the right of appeal should be .Deemed to have become available to the convict did not find favour with the Hon'ble apex Court.
9. It is, thus, abundantly clear that appellant's declaration cannot be deemed to have been authenticated on September 24, 2001.
10. Admittedly respondent No. 4's declaration was authenticated on November 17, 1999. In presence of his declaration, appellant's declaration for publishing newspaper under the same title could not be authenticated unless his declaration was found to have become null and void due to non- publication of the newspaper. According to the law (Section 9 of Ordinance XXX of 1963 and Section 11 of Ordinance XCVIII of 2002) if a daily newspaper is not published within three months of authentication of declaration or having been published is not published for sixteen days in a calendar month. The declaration shall become null and void unless the declarant shows, to the satisfaction of the authenticating authority that the newspaper could not be published due to reasons beyond his control. Notwithstanding the mandatory nature of the provision, the penalty of annulment of declaration cannot be imposed or applied without proof of fact for which, the penalty is provided i.e. Non-publication of newspaper for the period prescribed under the law. The contention of the learned counsel for the appellant that for the purpose of applying the penalty no finding regarding the non-publication is required to be given by any authority, is without any force.
The precedent of the case of Government of the Punjab vs. Dr. Ijaz Hassan Qureshi. Reported in PLD 1985 Supreme Court 28, relied upon by the learned counsel does not say that the penalty will apply without proof of fact for which it is provided. Therefore, a finding regarding non-publication of the newspaper for the prescribed period is necessary to be given before applying the penalty. The finding must be based upon evidence satisfying the requirement of natural justice.
11. The contention of learned counsel that no other evidence was required and the letter dated July 10 2001 of the respondent No. 4 addressed to the Deputy Commissioner, District South Karachi was sufficient for holding his declaration as null and void is also without any weight. The letter which according to the learned counsel contains admission of non-publication of the newspaper in fact, do not contain any such admission. On the contrary, it contains denial of the allegation contending that the newspaper was being published in restricted numbers and copies were also supplied to the concerned department regularly, further mentioning that if for any reason copies of the newspaper were missing from the record of any department he (respondent No. 4) was prepared to makeup the deficiency. The District Magistrate seems to have accepted his version and allowed him to makeup the deficiency. In his comments filed in appellant's C.P. No. 1723 of 2001 the Director Information Government of Sindh also did not fully support appellant's allegation regarding non- publication of the newspaper contending that the cases of the newspapers including that of daily 'Pakistan' were referred to the Deputy Commissioner (South) Karachi only because of non-receipt of their gratis copies.
12. In the present case no serious effort to have been made to find out the facts required to be proved for holding respondent No. 4's declaration as null and void. On being approached by the appellant, the District Magistrate formed one-sided opinion against the respondent No. 4 without hearing him and recommended appellant's case to the Director Information. However, on being approached by the respondent No. 4 he changed his opinion and recommended his (respondent No. 4's) case to the Director Information without hearing the appellant. Such manner of dealing with people's right by a responsible officer is far from fair. At the time of passing the impugned orders the question was not adverted to at all.
13. For the purpose of according or refusing authentication to appellant's declaration validity or otherwise of respondent No. 4's prior declaration and prior publication of newspaper with same title in same language by any person other them the appellant from any other place in the country are the most important factors to be taken into consideration and dealt with properly by the authenticating authority . Unfortunately, even after the remand of case the respondent No. 2 while deciding the matter second time has failed to take into consideration the above factors and has failed to give clear finding about them. We are, therefore, constrained to again remand the matter to the respondent-No. 2 to decide it afresh after hearing both the parties and affording them opportunity to produce evidence in support of their contentions. While deciding the matter, he shall take into consideration all the factors relevant under the law (Sections 10, 11 and . 19 of Ordinance XCVIII of 2002) specially the following points:
(i) Whether respondent No. 4 has failed to publish the newspaper (daily 'Pakistan' Karachi) and his declaration has become null and void?
(ii) Whether daily "Pakistan" is already being published in Urdu at any place in the country by any person other than the appellant?
The respondent No. 2 is required to give clear finding on the above issues and decide the matter in the light of these findings. Since the matter is old one he is directed to decide it within four months. .