This is a writ petition by Messrs Bahoo Film Corporation, petitioners, for a declaration to the effect that the Notification of the Federal Government dated 26-1-1981 decertifying the Punjabi Film "Mauls Jat" is based on no evidence and is mala fide, arbitrary, without jurisdiction, illegal, and without lawful authority and of no legal effect and that the said film continues to remain a certified film and can be distributed and exhibited as hithertofore without any interference from the respondents.
2. The brief facts of the case are that the Punjabi Film "Mauls Jat", which was the maiden production of the petitioners, was submitted to the Central Board of Film Censors, Government of Pakistan, Islamabad, res--pondent No. 2, in 1978 for certification. First the Committee and there--after the full Board of respondent No. 2 refused to certify the film. The petitioners thereupon preferred an appeal to the Secretary to the Government of Pakistan, Ministry of Culture, respondent No. 1, whereupon the film was shown to the Appellate Committee, which recommended the said film for certification, without the imposition of any cuts or conditions. Accordingly, "U" certificate for unrestricted public exhibition of the said film for a period of five years for the whole of Pakistan was issued in favour of the petitioners on 1-1-1979. The original Censor Certificate does not show on its reverse that any portion of the said film was excised, for had the Board ordered any excision, particulars thereof would have been incorporated on the reverse of the said certificate, as is the practice of the Board.
The certificate was not subject to any further conditions. The film was released in various cinemas in Pakistan on and from 9--1979.
3. On 11-2-1979 a Film Inspector attached with the office of respondent No. 2, together with Mr. Muhammad Iqbal Cheema M.
1. C., Rawalpindi, saw the said film at Nishat Cinema, Rawalpindi, and found that many additions and excisions had been made therein. They accordingly seized the print of the film and deposited the same in the malkhana of Police Station "D" Division, Rawalpindi. The District Magistrate, Rawalpindi, thereafter submitted the said film to the Central Board of Film Censors, Islamabad, for verification.
4. On 12-2-1979 a meeting of the Central Board of Film Censors, Islamabad, was held in which nine members attended, including the Chairman and Vice-Chairman of the Board. The members who attended and examined the film were ;--
(1) Mr. Anwar Abbas AnsariChairman.
(2) Mr. S. Munawar AhmadVice Chairman.
(3) Mrs. Wajia HashmiMember,
(4) Brig. Khaway Rahat LatifMember.
(5) Mr. A. Z. Zafar AlamMember.
(6) Kh. Karamat Hussain Member.
(7) Sh. Ishrat AliMember.
(8) Mr. Sajjad Haider MalikMember.
(9) Mr. S. Afzaal HussainMember.
Zaidi.
The members listed at Serial Nos. 5 to 9 were those who had earlier examined the film at the Committee and Board stags, who confirmed that the film contained the following unauthorised portions which were added to the picture after certification : -
(1) The seene in the title in which Aalia appears at the Police Station.
(2) In Aalia's dance, trampling of feet on blood is added.
(3) Chakori shooting her brother Makhkha (Adeeb).
(3) Dialogues at the Police Station where Daro Natni (Chakori) is taken with handcuff.
(5) Scene showing the granting of bas of Daro Natni and the Jailor.
(6) Scene in which convicts shout "
(7) Scene showing the digging out of Gandasa from the grave.
(8) Scene showing Noori (Mustafa Qureshi) ringing the alarm bell in the jail.
(9) The Court scene.
(10) The scene in which Maula Jat (Sultan Rahi) says that t
(11) Addition of the scene in the hospital in which Noori Nat says to the Doctor to hand over certain amount of money to Sweeper.
(12) Explosion of houses in .Jat's village.
(13) Scene showing the carrying of the crops of Aku Nat (Asad Bukhari) alongwith gifts to Noori's house.
(14) Addition to the scene of the last fight.
(15) There is an excess of 356 Ft. (105 meters) than the certified length.
Accordingly, the Board recommended to the Federal Government that the certification of the said film be cancelled. After retaining the 14A15 portions of the film which they considered had been added after certification, the Board returned the main print of the film to the owners of the cinema for exhibition.
5. On 6-3-1979 a Deputy Secretary of the Ministry of Culture issued a show-cause notice (Annexure 'F' to the petition) to the petitioners calling upon them to show cause why the censor certificate of the said film should not be cancelled in view of their contravention of rule 21(1) of the Censorship of Film Rules, 1963. On the same day, the District Magistrate, Lahore, also issued a notice (Annexure C to the petition) to the Shabistan Cinema, Lahore, calling upon them to show cause who their cinema licence should not be revoked under rule 111(1) of the Punjab Cinematograph Rules, 1975, for their violation of conditions 5(a) and 11(a) of their Cinematograph licence. Both the said notices listed item-wise the particulars of the 14/15 scenes which had been added to the film after its certification. On 7-5-1979 the petitioners filed their reply (Annexure G to the petition) to the show- cause notice issued by the Federal Government controvert the allegations made and raising certain legal issues. The petitioners inter alia asserted that no additions or alterations were made by them, that the film as shown was in the same condition as passed, that the members of the Censor Board did not like the decision of the Appellate Committee that had passed the film and had made unusual and extraordinary efforts to cause harm to them, that the Board had acted illegally in giving a verdict without associating them with any inquiry and the show-cause notice issued to them was not issued in accordance with the provisions of the Censorship laws. Likewise, the proprietors of the Shabistan Cinema, Lahore, also filed their reply to the show-cause notice issued by the District Magistrate, Lahore, to them.
6. On 3-9-1979 the Motion Pictures Ordinance, 1979, was gazetted repealing the Censorship of Films Act, 1973.
7. The District Magistrate, Lahore, after conducting an inquiry in respect of the proceedings initiated by him against the Shabistan Cinema, Lahore, under rule 111(1) of the Punjab Cinematograph Rules, 1976, came to the conclusion that the owners of the cinema, as the holders of a licence to run cinematographic films, had not themselves added any extra portions to the film and that the same may have been done by the Producer. Accord--ingly, he withdrew the show-cause notice against the Shabistan Cinema.'
8. Wan regard to the proceedings initiated by the Federal Government against the petitioners, the Federal Government found the reply of the petitioners unsatisfactory and on 23-9-1979 it informed the petitioner's accordingly and intimated to them that the Government proposed to cancel their censor certificate and that, if they so wished, they could avail of the opportunity to have a personal hearing on 3-10-1979 at I1 a. m. In their division, failing which necessary ex parte action under the law would be taken against the said film. On 3-10-1979 the petitioners sent a telegram requesting for an adjournment as their representative was sick. They requested that 14-10-1979 may be fixed for their personal hearing. This was accepted by the Ministry. On 14-10-1979 the petitioners appeared before the Deputy Secretary, Ministry of Culture, and denied the allegations. They took up the plea that as the film had last been certified by the-Appellate Committee constituted by the Secretary, that the film should be shown to the Appellate Committee before taking any decision.
On 4-11-1979 the Federal Govern--ment wrote to the petitioners directing them to deposit within seven days the print of the film for display before the Appellate Committee. So that the same could be viewed by them with the earlier excised portions which they were retaining. The petitioners,- however, did not deposit the print.
9. On 20-11-1979 the Appellate Committed saw the 14/15 excised portions which the Board of Film Censors had excised from the main film after the Board had seen the film on 12-2-1979. The Appellate Committee comprised Mr. Justice K. M. A. Samdani, Law Secretary, Government of Pakistan, Mr. Rashid Ahmad, Additional Secretary, Population Planning, and Dr. Nisar Ahmad, Additional Secretary, Science & Technology. The three menibers of the Appellate Committee comprised the quorum as was required. Mr. Justice K. M. A. Samdani, Law Secretary, and Mr. Rashid Ahmad, Additional Secretary, Population Planning, by separate notes, both confirmed' that 13/14 scenes shown to them did not form part of the film `Maula .Jat' seen by them earlier. The third member, however failed to submit his report. On 10-2-1980 the petitioners sent a telegram (Annexure J to the petition) requesting the Deputy Secretary to fix a date for evidence in proof of the allegations levelled against them, to be recorded, under intimation to them. However, the Federal Government in the Ministry of Culture, decertified the said film on 18-2-1980, without hearing the petitioners, vide its order of the said date (Annexure `J' to the petition).
10. On 25-2-1980 the petitioners filed a Writ Petition (W. P. No. 1989 of 1980) against the respondents challenging the said Notification of res--pondent No. 1 dated 18-2-1980. The said writ petition came up before a learned single Judge of this Court who, on 1-3-1980, suspended the impugned order.
On 3-3-1980 the Secretary to the Government of Pakistan, Ministry of, Culture by a Notification of that date, withdrew his order dated 18-2-1980, in view of the fact it was pointed out him that the said order dated I8-2-1980 had been passed by him without giving a personal hearing to the petitioners. Accordingly, on 3-2-1981, when a said writ petition came up for hearing, the Deputy Attorney-General ma e a statement that the order dated 18-2-1980 had been withdrawn and the writ petition was disposed of as having borne fruit.
11. In the meantime, on 23-12-1980 the Ministry concerned had already written to the petitioners directing them to present themselves on 30-12-1980 for personal hearing before the Secretary to the Government of Pakistan, Ministry of Culture. On 28-12-1980 the petitioners sent a telegram to the Ministry requesting for an adjournment of the date, as the ceremony regarding confirment of the Graduate Awards was fixed, in which they would be busy. On receiving no reply from the Ministry concerned, Mr. Saif-ud-Din Chughtai, Advocate for the petitioners, appeared before the Secretary to the Govern--ment of Pakistan, Ministry of Culture, on 30-12-1980 and presented his clients' case. The Ministry's file shows that the learned counsel made the following submissions.
First, that sections 9 and 11 of the Motion Pictures Ordinance, 1979, did not empower the Government to recall the film for re-exemination nor did it empower it to decertify it. Second, that the show cause notice should also have been issued under the signature of the Secretary to the Federal Government, Ministry of Culture. And third and last, that when the film was re-examined, the petitioners were not informed and that he (i. e., the lawyer) would like to cross-examine the.
Members of the Appellate Committee, At the meeting, the Additional Secretary and the Section Officer of the Cultural Division were also present. After hearing the learned counsel, the Federal Secretary directed the decertification of the film and on 26-1-1981 the Federal Government passed the impugned Notification decertifying the film "Mauls Jat" for exhibition in the whole of Pakistan.
Being aggrieved by the said Notification, the petitioners filed the present writ petition against the same, which is now before me for disposal.
12. The learned counsel for the petitioners, in support of his petition, made the following submissions; First, that action was taken under section 9(2) (a) of the Motion Pictures Ordinance, 1979, whereas the show-cause notice (Annexure F to the petition) issued by the Ministry on 6-3- 1979 to the petitioners referred to the violation of rule 21 of the Censorship of Films Rules, 1963, which ground was not covered " by section 9 (2) (a) of the Ordinance. In this connection it was submitted that even if it be assumed that action was taken under the old law under rule 21 of the Censorship of Films Rules, 1963, the said Rule was ultra vires of the Censorship of Films Act, 1963, and after the promulgation of the Motion Pictures Ordi--nance XLIII of 1979, became dead or, in any case, became ultra vires of the said Ordinance and that even if it be assumed that action was taken under section 9 (1) of the Motion Pictures Ordinance, XLIII of 1979, it was illegal . As action could only be taken under section 9 (2) and decertification could not be ordered on the grounds stated in the original show-cause notice. Second, that the order of decertification had to be passed by the Minister, after hearing the petitioners. And giving them an opportunity of cross--examining the witnesses who had deposed against them or to lead any evidence in their defence and that since neither the order of decertification was passed by the Minister nor did the Minister give the petitioners an opportunity of cross-examining the witnesses who bad made statements against them or to lead any evidence in their defence, though an opportunity was desired by the petitioners in that respect, which was refused, the order of decertification was illegal, null and void.
In this connection, it was stat6d that there was no delegation under section 15 of the Motion Pictures Ordinance. 1979, in favour of the Secretary to act on behalf of the Federal Government and that, therefore, the Federal Secretary did not represent or could act on behalf of the Federal Government. Third, that the Board which examined the film on 12-2-1979 was actuated by malice against the petitioners in order to destroy the petitioners' business and, therefore, delibe--rately gave a false report against the petitioners for the decertification of the film. Fourth, that the whole film was not shown to the Appellate Committee do 20-11-1979 but only the 14/15 portions were shown to them and that, therefore, the Appellate Committee could not give a proper opinion as to whether the said portions were additions to the film earlier shown to them, as without the main film being shown with the additions annexed at their proper places, it was next to impossible for the Appellate Committee to arrive at a proper finding. Fifth, that the impugned Notification dated 26-1- 1981 was not issued in the name of the President, as was required by Article 99 of the Constitution of Pakistan, 1973. In the light of these cumulative submissions, it was pressed that the Notification dated 26-1-1981 be declared as illegal, null and void and as having no legal effect and that the release of the film be permitted.
13. Learned counsel for the respondents, who strongly opposed the petition, submitted that the action against the petitioner: could be supported both under the old law and the new one.
According to him, the show-cause notice was originally given to them when the Cinematograph Act, 1918, the Censorship of Film Act, 1963, the Punjab Cinematograph Rules, 1976 and the Censorship of Films Rules, 1976, were in force and that under rule 21 of the Censorship of Films Rules, 1963, which were intra vires of the Censorship of Films Act, 1963, a picture could be decertified by the Federal Government, if it was exhibited in a form other than that in which it was certified. It was urged that assuming rule 21 of the Censorship of Films Rules, 1963, was not applicable to the case, then the action of the Federal Government could be supported under section 9 (1) of the Motion Pictures Ordinance, 1979, which gave unfettered authority to the Federal Government to pass any orders, as it thought fit, in relation to any certified film, without notice to the person to whom a. Certificate in respect of that film had been granted or to the Distributor or Exhibitor of such film. As regards the second submission made by the learned counsel for the petitioners. It was submitted that by virtue of sub-rules (3) and (4) of rule 3, sub-rules (1), (2) and (3) of rule 4 and sub-rules (8), (9) and (11) of rule 5 of the Federal Government's Rules of Business, 1973, the Secretary of the Culture Division was competent to take the decision on behalf of the Federal Government, without any reference to the Minister in Charge of the Division, and that even otherwise, by virtue of Standing Orders dated 24th June, 1980, issued by the Ministry concerned under the power given to it under sub-clause (f ) of sub-rule (9) of rule 5 of the Federal Government's Rules of Business, which were issued with the approval of the Minister in Charge, the business of the Federal Government under sections 7, 8 (6), 9, 11, 14 and 20 of the Motion Pictures Ordinance, 1979, was allocated to the Secretary to be exercised by him. In these circumstances, it' was submitted that the decertification order could be passed by the Federal Secretary, Culture. Division. As regards the allegation that the Minister did not give the petitioners an opportunity of cross-examining the witnesses who had made statements againstthe petitioners or an opportunity to lead evidence in their defence, it was submitted that under section 9 (1) of the Moton Pictures Ordinance, 1979, such an opportunity was not required to be grip, but that, in any case, the Federal Secretary had personally heard the petitioners, though their counsel, on 30-12-1980 before passing the impugned order.' As regards the necessity of permitting the petitioners to cross-examine the witnesses or lead evidence in their defence, on the authority of Government of Pakistan v. Shahid Afzal 19818 CMR101it was submitted that the same was not necessary and the personal hearing given to the petitioners was sufficient in the matter. As regards the third, fourth and fifth submissions made by the learned counsel for the petitioners, namely, that relating to the Board being motivated by malice against the petitioners, that the Appellate Committee was only shown the impugned 14/15 excerpts of the film on 20-11-1979 and not the whole film and that the Notification was not issued in the name of the President of Pakistan, the learned counsel for the respondents submitted that the same were not raised by the petitioners in their petition and, therefore, they could not be allowed to be raised in arguments. However, the learned counsel submitted that the Board had no malice against the petitioners and no affidavit of any responsible person was filed by the petitioners to prove such malice. As regards the Appellate Committee only being shown the 14/15 scenes of the additional portions of the picture which the petitioners had surreptitiously added after the same was certified, it was submitted that the petitioners were directed by respondent No. 2 by its letter dated 4-11-1979 to deposit the full print of the main picture so that the same could also be seen, but this was not done by the petitioners, with the result that the Appellate Committee was shown only the said 14/15 impugned scenes. In any case, it was submitted that the said screening before the Appellate Committee was done out of gratuitous regard and favour to the petitioners, in -view of the request of the petitioners that the Appellate Committee which had later seen and finally passed the picture should give their opinion, but otherwise, in law, the same was not necessary. As regards the objection regarding the Notification not being in the name of the President of Pakistan, it was submitted that section 9 (1) of the Motion Pictures Ordinance, 1979, itself directed the Federal Government to take action and that under rule 5 (9) (f) of the Federal Government's Rules of Business, 1973, the Federal Minister for Education in the Culture Division had himself on 2-7-1980 approved Standing Orders laying down the manner. Of disposal of cases relating to the Motion Pictures Ordinance, 1979, and had allocated to his Secretary cases covered under sections 7, 8 (6), 9, 11, 14 and '_'0 of the Motion Pictures Ordinance, 1979. Even . Otherwise, it was submitted that the Secretary of the Cultural Division, by virtue of rules 4 (2) and 5 (9) of the Federal Government---s Rules of Business, 1973, represented the Federal Government in all matters and he had passed the impugned order after hearing the petitioners. As regards the Notification not being issued in the name of the President of Pakistan, it was submitted that the same was not necessary as the legislature had delegated by Statute its executive authority to the Federal Government under section 9 (1) of the Ordinance and the same could be exercised by the Federal Secretary in the name of the Federal Government and that even assuming that the Notifi--cation had to appear in the name of the President of Pakistan, the omission of that name did not invalidate the Notification, if the Notification was properly authenticated under Article 99 (2) of the Constitution of Pakistan, 1973.
14. The main question that arises in this case is whether the Notification of the Fedwai Government dated 26-1-1981 decertifying the film is maintain--able under the provisions of the Censorship of Films Act, 1963, and the Rules framed thereunder or under the subsequent legislation, namely, the Motion Pictures Ordinance, 1979, that came into force on 3-9-1979 and the Censorship of Films Rules, 1980, that came into force on 8-3-1980.
15. According to the preamble to the Censorship of Film Act, 1963, the said Act was enacted to provide for the censorship of cinematograph films and for the decertification of certified films in the interest of law and order, the local film industry or any other national interest, and for matters incidental thereto or connected therewith.
The various provisions of the Act which dealt with the decertification of films and penalties for certain offences, were as follows :-- Section 5. Suspension of certificate.-(1) Notwithstanding anything contained in subsection (3) of section 4, an authority may,
(a) before a certified film is publicly exhibited within its local area, require it to be exhibited before such authority ; and
(b) if it is of opinion that the film should not be publicly exhibited within its local area by order, suspend, pending the orders of the Central Government under subsection (4), the certificate in respect of that film granted by any other authority.
(2) If a District Magistrate is of the opinion that a certified film should not be publicly exhibited within his district, he may, by order, suspend, pending the orders of the Central Government under subsection (4), the certificate in respect of that film granted by any. Authority.
(3) A certified film shall, during the period of suspension of its certi--ficate under subsection (1) or subsection (2), be deemed to be an uncertified film in respect of the local area or district within the jurisdic--petition of the authority or District Magistrate making the order of suspension.
(4) A copy of any order of suspension made under subsection (1) or subsection (2), together with a statement of the reasons therefore, shall forthwith be forwarded theCentral Government by the authority or the District Magistrate making the order, and the Central Government may either discharge the order or, by notification in the official Gazette direct that film shall be deemed to be an uncertified film in respect of a Province or such area or areas as may be specified in the notification.
(5) Where, on receipt of a reference under subsection (4), or of its own motion, the Central Government is of the opinion that a certified film should not be publicly exhibited in Pakistan, it may, by notification in the Official Gazette, direct that such film shall be deemed to be an uncertified film in respect of the whole of Pakistan.
Section 7. Power to decertify certified films.-Where the Central Government is of the opinion that a certified film, or class of certified films, should, in the interest of law and order, or in the interest of local film Industry, or in any other national interest, be decertified in respect of the whole or any part of Pakistan, it may, of its own motion, by notification in the official Gazette, direct that such film or class of films shall be deemed to be uncertified film or films in respect of the whole of Pakistan, or such area or areas as may be specified in the notification.
Section 8. Penalty.-(1) Whoever exhibits; uncertified film or a certified film which does not show the mark of authority or which has been altered or tampered with in any way since such mark was affixed there--to, or contravenes any other provision of this Act or the rules made thereunder, shall be punishable with fine which may extend to one thousand rupees and, in the case of a continuing offence, with a further fine which may extend to one hundred rupees for each day during which the offence continues.
(2) Where a person in convicted of an offence punishable under subsection (1) in respect of any film, the Court passing the sentence may further direct that the film shall be forfeited to the Central Government.
(3) Where a person is convicted of an offence punishable under sub--section (1) in respect of a place licensed for the exhibition of cinema--tograph films, the Court passing the sentence may further direct that, notwithstanding anything m the licence relating to such place, no cinematograph film shall be exhibited in that place for such period, not exceeding three months, as may be specified by the Court.
The rule-making powers of the Central Government was contained in section 10 of the said Act as follows :- Section 61. Power to make rules.-(1) The Central Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, rules made under this section may provide for -
(a) the manner in which films in respect of which certificates are granted shall be marked ;
(b) the manner in which appeals shall be disposed of ;
(c) the procedure of the authorities, and all matters ancillary thereto, and the fees to be charged by them ;
(d) the appointment of officers subordinate to the authorities and the regulation of the powers and duties of such officers ; and
(e) any other matter which by this Act is to be prescribed.
Under the aforesaid section, the Censorship of Films Rules, 1963, were enacted. Rule 21 of the Rules, which related to decertification, was as follows :-- Section 21. Cancellation of certificate.-(1) A certificate granted by the Board under these rules shall be liable to cancellation if the film in respect of which the certificate is granted is exhibited in a form other than the one in which it is certified.
(2) Where, in exercise of the powers conferred by subsection (5) of section 5, the Central Government directs that a certified film shall be deemed to be an uncertified film :an respect of the whole of Pakistan, the person to whom a certificate was granted in respect of that film, or any other person to whom the right to exhibit the film for the time being belongs, shall surrender the certificate and all copies thereof to the Board, within one month from the date of such notification Provided that the Chairman may, at the written request of any such person, extend the said period.
16. From a bare reading of sections 5 and 7 of the Censorship of Films Act, 1963, it is clear that the Central Government bad powers to decertify a film which already stood certified, in the following cases :-
(i) On receipt of a reference from an authority that the film was not fit for public exhibition within its local area and its certificate had been so suspended on that ground------.See section 5(4).
(ii) On receipt of a reference from a District Magistrate that the film was not fit for public exhibition within his district and its certificate had been so suspended on that ground---------. See section 5(4).
(iii) On receipt of a reference under section 5(4), or of its own motion, it was of the opinion that the film should not be publicly exhibited in Pakistan,; and------------. See section 5(5).
(iv) Of its own motion, if it was of the opinion that it was necessary to do so in the interest of law and order, or in the interest of local film industry, or in any other national interest ...See section 7.
The principles relating to decertification of films suo motu by the Central Government under sections 5(5) and section 7 were mutually exclusive, because in respect of the former, the Central Government could by notification in the .Official Gazette, make rules under section 10 of the said Act for carrying out the purposes of section 5(5) and thus lay down the conditions for the exercise of the legislative policy contained in section 5(5), but so far as section 7 was concerned, the Central Government could not tamper with the principles as contained in that section by framing rules and adding further conditions for enlarging its scope.
17. From a bare reading of section 5(5) of the Ordinance, it is clear that the Legislature had clearly formulated its legislative policy with regard to the decertification of films suo motu by the Central Government on--grounds not controlled by stated conditions but left to its subjective con-- siderations and, of necessity, had left the determination of those conditions, with which it did not desire to deal itself, to the Central Government. The power of the Legislature to lay down policies, principles and standards, while leaving it to its selected functionaries to make incidental and auxiliary provisions within prescribed limits for its effective execution or the determinat--ion of principles or conditions on which the policy as declared by the legislature is to be executed, has been accepted by the Privy Council, the Supreme Court of Pakistan and- the High Courts of this country in many cases. If any authority is required for this view, Benoari Lai Sarma's case (AIR 1945 P C 48)Waris Meah's case (PLD 1957 SC (Pak.) 157), Hari chankar Bagla's case (PLD 1958 SC 41), Ghulam Zamin's case (P L R 14 Dacca 989 and Dacca Picture Palace's case (PLD 1969 Dacca 1may be cited with advantage. When one reads rule 21, it becomes clear that the qualification laid down was not extraneous or outside the limits of the legislative policy, as contained in section 5(5), but one which was basic, logical and natural to the main object of the Act, namely, that when a film was certified it should not be exhibited in a form other than the one in which it was so certified, irrespective of the fact whether all or any of the additions or decisions were suitable for public exhibition or not. The fact that other qualifications were not laid down, showed that the Central Government did .Not desire to enlarge the not, so to violate the policy laid down in section 7 of the Act, and that the exercise of the delegated authority was therefore properly panalised within permissible limits and was not unconfined and vagrant. Rule 21 of the Censorship of Films Rules, 1963, was, therefore, intra -vires of the Censorship of Films Act, 1963 and it could not, therefor 'said that the show-cause notice which was sent to the petitioners on 6-3 1979 under rule 21 of the Censorship of Films Rules, 1963 was illegal.
18. In the instant case, though the show-cause notice was issued to the petitioners on 6-3-1979, the final action was not taken till 3-2-1981, i. e. after the Motion Pictures Ordinance, 1979, was enacted and the Censorship of Films Rules, 1980, enforced. In order to determine whether the action previously begun under the Censorship of Films Act, 1963, could be continued under the old Act or not, and what were the changes in the new law regarding the procedure relating to decertification, the new law requires examination.
19. According to the Preamble of the Motion Pictures Ordinance, 1979, the said Ordinance is enacted to provide for the Censorship of films and the regulation of exhibition of films by means of cinematograph and for matters connected therewith or incidental thereto. The said Act repeals the Cinematograph Act, 1918, and the Censorship of Films Act, 1963. The various provisions of the Ordinance which deal with the decertification of films and penalties for certain offences, are as follows :- Section 8. Powers to suspend exhibition of films in certain cases.-(1) A Board may, if it has reason to believe that a film in respect of which a certificate has been granted by it under section 5 has been or is being exhibited in contravenion of any of the conditions subject to which it has been certified, by order suspend the exhibition of the film for such period as may be specified in the order.
(2) The District Magistrate, in respect of the whole or any part of his district, may, if he is of the opinion that any film which is being publicly exhibited is likely to cause a breach of peace, by order suspend the exhibition of the film for such period not exceeding one month as may be specified in the order.
(3) While an order under subsection (2) is in force in respect of a film, such film shall be deemed to be an uncertified film in respect of the area specified in the order.
(4) For the purpose of inspecting the exhibition of films and the proper enhancement of the provisions of this Ordinance relating to such exhibition, the Board may, by order in writing, authorisesuch persons as it may deem fit for such area as may be specified in the order.
(5) Where a film in respect of which no certificate has been granted under this Ordinance is exhibited, or a film certified as suitable for restricted public exhibition is exhibited otherwise than as certified, or a film is exhibited in contravention of any of the other provisions of this Ordinance, any Police Officer not below the rank of Inspector stay, upon a report in writing made by the Board or by a person authorised by it in this behalf, or under the orders of the District Magistrate, enter any place licensed for the exhibition of films in which there is reason to believe that the film has been or is being exhibited, search it and seize the film and projection equipment.
(6) A copy of an order under subsection (1) or subsection (2), together with a statement. Of the reasons thereof shall forthwith be forwarded to the Federal Government and the Federal Government may either discharge the order or, by notification in the official Gazette direct that the film shall be deemed to be an uncertified film in respect of such area as may be specified in the notification.
Section 9. Revisional powers of the Federal Government.-(1) Not--withstanding anything contained in this Ordinance, the Federal Government may at any stage call for the record of any proceedings in relation to any film which is pending before or has been decided by the Board and, after such inquiry into the matter as it considers necessary, and without notice to the person who has applied for certification of the film or to whom a certificate in respect of the film has been granted or to the distributor or exhibitor of such film, make such order in relation thereto as it thinks fit.
(2) Without prejudice to the powers conferred on it by subsection (1) the Federal Government may, by notification in the official Gazette, direct that -
(a) a film or class of films in respect of which a certificate has been granted - under this Ordinance or under the Censorship of Films Act, 1963 (XVIII of 1963), shall be deemed to be an uncertified film or class of films in the whole or any part of Pakistan Provided that no such order shall be made by the Federal Government unless it is satisfied that it is necessary to do so in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or to prevent the commission of, or incitement to, an offence ; or
(b) a film which have been sanctioned for unrestricted public exhibition under section 5 or to which a "U" certificate has been granted under the Censorship of Films Act, 1963 (XVIII of 1963), shall be deemed to be a film in respect of which a restricted certificate has been granted.
Section 18. Penalties and procedure.-(a) Whoever-
(a) exhibits or causes or permits to be exhibited in any place, or debts the exhibition of, any film which has not been certified by the Board of which, when exhibited, does not display the prescribed mark or has been altered or tampered with since such mark was affixed thereto ; or
(b) without lawful authority, alters or tampers with, in any way, any film alter it has been certified ; or
(c) fails to comply with the provisions of section 5 or of any order made under this Ordinance ; shall be punishable with imprisonment for a term which may extend to three years, - or with fine which may extend to one lac rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to ten thousand rupees for each day during which the offence continues:
(2) If the owner or person incharge of a cinematograph on any place uses it or allows it to be used in contravention of the provisions of this Ordinance or the rules made thereunder, or of the conditions and restrictions upon or subject to which any licence has been granted under this Ordinance, he shall be punishable with imprisonment for a term which may extend to one year, or witness which may extend to ten thousand rupees, or with both, and in the . Se of a continuing offence, with a further fine which may extend to two thousand rupees for each day during which the offence continues.
(3) If any person is convicted of any offence punishable under subsec--petition (1) or subsection
(2) committed by him in. Respect of any film, the Court may further direct that the film and cinematograph used for its exhibition may be forfeited to the Board.
(4) Where the person convicted of an offence under this section is holder of a licence granted under section 13, the licensing authority may revoke the licence.
(5) Notwithstanding anything contained in the Code of Criminal Proce--dure, 1898 (V of 1898), no Court shall take cognizance of an offence punishable under this section except upon a complaint in writing made by the Board or the licensing authority or persons authorised by any of them.
The rule-making powers of the Federal Government is contained in the following section; Section 19. Power to made rules.--(1) The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely :-
(a) the manner in which the. Board may exercise its powers, including the establishment of centres at different places and the delegation of any of the powers of the Board to any member nominated by the Federal Government in that behalf ;
(b) the procedure of the Board and all matters ancillary thereto, and the fees to be charged by it ;
(c) the conditions subject to which any certificate may be granted under Chapter 11 and the circumstances in which such certificate shall be refused ;
(d) the manner in which appeals under section 7 may be preferred. Heard and disposed of ;
(e) the terms, conditions and restrictions, if any, under which licences may be granted under Chapter III ; and
(f) any other matter which is to be or may be prescribed.
The repeals and savings clause, as contained in the said Ordinance, reads as follows :- Section 21. Repeals and Savings.-(1) The Cinematograph Act, 1.918 (II of 1918), and the Censorship of Films Act, 1963 (XVIII of 1963), are hereby repealed.
(2) Notwithstanding the repeal of any Act by subsection (1), and without prejudice to the provisions of section ~24 of the General Clauses Act, 1897 (X of 1897), every thing done, order passed, action taken or obligation, liability, penalty or punishment incurred under any of the provisions of the said Act, shall, if not inconsistent with the provisions of this Ordinance, continue in force and be deemed to have been done, passed, taken or incurred under the provisions of this Ordinance.
20. When one compares the provisions of the Censorship of Films Act, 1963, with that of !He Motion Pictures Ordinance, 1979, certain differences stand out prominently. The conditions for decertification of films in they Act of 1963 were that the action had to be in the interest of law and order,! Or in the interest of the local film industry, or in any other national interest. As provided in the proviso to section 7 of the said Act, whereas under the Ordinance of 1979 it stands enlarged and has to. Be in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with Foreign states, public order, decency or morality, or to prevent the commission of, or incitement to, an offence, as provided in the proviso to section 9(2) of the said Ordinance. The previous Act of 1963 did not specify the "grounds norm" or principles to be kept in mind by the producers in order to secure the censor certificate, whereas under the Ordi--nance, the same are laid down as principles for guidance, under section thereof. The Act of 1963 granted the Central Government jurisdiction on receipt of a reference under section 5(4), or of its own motion, to decertify a film. If it was of opinion that a certified film should not be publicly exhibite in Pakistan, whereas in the Ordinance of 1979 suo motu jurisdiction t decertify a film on the basis of its own subjective opinion is not there. I the earlier Act, no revisional powers were granted to the Central Government to supervise and oversee the working of the authority, whereas in the present Ordinance, revisional powers have been granted to the Federal Government to supervise and oversee the working of the Board, under section 9 (1) thereof.
21. - From a bare reading of sections 8 and 9 of the Ordinance, it appear that the Federal Government has powers to decertify a film in the following cases;
(i) On receipt of a reference from a Board that the film has been exhibited in contravention of any of the conditions subject to which it has been certified and its certificate has been so suspended . . . . (Section 8(1)).
(ii) On receipt of a reference from a District Magistrate that the exhibi--petition of the film is likely.
To cause a breach of peace within the whole or part of his district and its certificate has been so suspended . . . . . (See section 8(2)).
(iii) Of its own motion, if it is of opinion that it is necessary to do so in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or to prevent the commission of, or incitement to, an offence.
(See section 9(2)(a)).
(iv) In revisional jurisdiction, in respect of a case covered by section 8,j provided that the conditions stated in subsection (1) of section 8 are satisfied and in respect of a case covered by section 5(1) provided that the provisions of section 6 have been violated. . (See section 9(1)).
22. It has been contended on behalf the respondents that subsection (1) of section 9 of the Ordinance gives unfettered powers to the Federal Government for passing any order in a case as it thinks fit, merely by calling for the record of the proceedings of that case before it. Since the Board in the instant case on 14-2-1979 referred the matter certification to the Federal Government the action, of the Government decertifying the film is supported under subsection (1) of section 9 of the Ordinance. As regards the omission of any reference to section 9(1) in the notification and the presence of section 9(2) therein, it is submitted that a misdescription of the- subsection does not invalidate the notification and that if the action is supportable under law, the mistake does not destroy the notification. I agree with the view of the learned counsel that a mistake as to be subsection in the notification will not ipso facto invalidate the notification, if it is otherwise supportable in law, for every possible explanation for its validity has to be explored, to support its legality. If any authority is required for this view, East Pakistan Railway Board's case PLD 1966SC725may be referred with advantage. However, as regards the contention that the action is supportable under subsection (1) of section 9 of the Ordinance, with profound respect to the learned counsel for the respondents, the matter does not appear so simple. Section 9 is pre-fixed with a heading which reads "Revisional Powers of the Federal Government". The heading pre-fixed to a section is generally intended to give an indication as to the scope or object of the whole section of its main part. However, when one read the whole of section 9 of the Ordinance, its becomes clear that only subsection (1) thereof deals with revisional powers of the Federal Government, whereas subsection (2) does not do so, subsection (2) of section 9 gives the Federal Government further powers, without prejudice to the revisional powers available to it under subsection (1), to decertify films for violation of the "grounds norm" stated in section 6 or to convert a certificate granted for unrestricted public exhibition into one for restricted public exhibition, subject to notification. To understand the thin umbilical chord that connects subsection (i) with subsection (2), an examination of clause (a) subsection (2) of section 4, subsection (2) of section 5 and section 6 are necessary, under sections 5(1) and 6, the Board after examining the film, has to find it suitable for public exhibition and if it considers that it is so suitable for unrestricted public exhibition, under section 4(2)(a), it must grant a "U" certificate for unrestricted public exhibition.
Under sub--section (I) of section 9, the Federal Government can revise the first decision, on the ground that it violates the "grounds norm" stated in section 6 or the second decision, on the ground that the certificate should have been granted only for restricted public exhibition. This is possible in cases of new films submitted to the Board for certification after the coming into force of the Ordinance, as they all would be dealt with by the Board. But since the bulk of the films would be those certified under the earlier Act of. 1963, the cases of these film coming up before the Board for decertification or for change of the character of the certificate and thus before the. Federal Government in revisional jurisdiction under subsection (1) of section 9 of the Ordinance may not be possible, as these films were found suitable on a different "grounds norm" and granted a "U" certificate by the earlier authority under the 1963 Act and not by the Board constituted under the present Ordinance. To meet these cases; subsection (2) of section 9 has been enacted. And since subsection (2) of section 9 grants powers--of an original nature, it has been enlarged to also meet similar cases relating to films certified after the coming into force of the Ordinance. Thus, with regard to films certified after the coming into force of the Ordinance, the Federal Government can either decertify the same for the violation of the "grounds norm" stated in section 6 or alter the character of the certificate granted from "U" to "R" in revisional jurisdiction under subsection (1) of section 9 or by original proceedings decertify the film or change the character, of the certificate under subsection (2) of section 9, but with regard to films' certified earlier by the authority constituted under the 1963 Act, if not, proceedings with regard ' to decertification or alteration of the certificate are pending before the Board, then action can only be taken under sub--section (2) of section 9. Now then turning to revisional jurisdiction in general, one would assume that revisional interference is intended to correct orders which have been passed and are without jurisdiction or in excess of jurisdiction or which have been passed with material irregularity, but under subsection (1) of section 9, the Federal Government, by calling for the record of any proceedings of a Board and without hearing the party affected, not only can make an order in respect of a case which has been decided by the Board, but also make an order where no order is passed and the case is still pending. The opening words "Notwithstanding anything contained in this Ordinance", do not relate to or amplify the nature of the order which the Federal Government can pass when exercising revisional jurisdiction, but relates to the stage at which any proceedings can be called for scrutiny.
For instance, a Board may have initiated action under subsection (1) of section 8, but it cannot, without holding some inquiry and coming to the finding that the film has been exhibited in contravention of any of the conditions subject to which it has been certified, suspend exhibition and refer the case to the Federal Government for decertification of the film. But notwithstanding anything contained in subsection (1) of section 8, the Federal Government can call for the record of the case from the Board, even though no final order has been passed, can make such order as it may deem fit. The words "make such order in relation thereto as I thinks fit" do not mean any order as it may deem fit, but such orders the Board itself in the given circumstances of a case on the basis of it inquiry or evidence before it, was expected to pass within the compass o the provisions of law in which action was initiated and/or could have been concluded. If the Federal Government is given 'unabridged powers to pass any order in any given case, on the pretext of exercising revisional jurisdiction it would be giving the Federal Government a lever to lay down new principles of policy or establish new standards for various matters, not fixed or established by the President in the Ordinance. Such unfettered liberty cannot be given to the Federal Government as a reward for exercising revisional jurisdiction. The scope of the words "make such orders in relation thereto as it may deem fit" must be allowed to remain in channelised banks and not be allowed to vagrantly over-flow.
23. It may also be noted at this stage that a Board can move for the suspension of exhibition and decertification of a film under subsection (1) of section 8 if it has been exhibited in contravention of any of the conditions subject to which it has been certified. The question that arises is what are the conditions subject to which a film may be certified. There is n direct section which lays down all these conditions together, but from sections 4, 5 and 7 one can gather that a certificate can be for unrestricted or restricted public exhibition, or for such area or period as the Board may specify or subject do certain excisions being made (particulars whereof are normally recorded on the reverse of the certificate) as the Boar considers necessary. However, there is no section which impliedly grant the Federal Government the power to lay down further conditions, though under subsection
(2) of section 6 it may issue a Censorship Code and such directions as it may deem fit "for the guidance the Bard in the exercise of its powers under this Ordinance." But where the conditions, subject t which a certificate may be granted, though few, are stated and laid down and there is no provision which says that a certificate issued under the Ordinance shall be subject to such terms and conditions as may be laid down by the Federal Government, it is doubtful if the conditions can be enlarged by incorporating them in a Censorship Code or in any direction issued for the guidance of the Board, for such .Code or directions would then not guiding the Board "in the exercise of its powers under this Ordinance" Even otherwise, the Censorship Code lays down principles for the guidance of the Board when censoring films. It does not Jay down the terms and conditions subject to which films may be decertified.
24. For reasons, therefore, given in paras. 22 and 23 above sub--section (1) of section 9 of the Motion Pictures Ordinance, 1979, does not give any unfettered powers to the Federal Government to lay down new terms for, -decertification over and above its normal supervisory power as stated in para. 22 above.
25. .In order to decide whether rule 21 of the Censorship of Film Rules; 1963 (which was repealed later on 8-3-1980), continued as good late under the Motion Pictures Ordinance, 1979, after the repeal. Of the Censorship of Films Act., 1963, section 21 of tl:e Ordinance requires consideration.
Under this section, the application of section 24 of the General Clauses Act, 1893, is preserved. This means that the Censorship of Films Rules, 1963, issued under the repealed Act could, so far as they were not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the new Ordinance. Under the new Ordinance, the power to decertify a film on the ground that it is being exhibited in a form other than the one in which it is certified, is not there. A film which is certified as suitable for exhibition. Does not ipso facts become an uncertified film merely because it is exhibited in a firm other than the one in which it is certified. There is no definition which says that a film which is tampered with after certification becomes art uncertified film. Where a film is tampered with after certification, prosecution can be launched under section 18 against the person so guilty. The wording of this section itself shows that a film tampered with after certification is not treated as an uncertified film. The Ordinance in section 6 does lay down the principles to be borne in mind by the Board when examining films to see that they are suitable for public exhibition. Violation of these principles can lea to the certificate being cancelled in revisional proceedings by the Federal Government if the Board itself has certified the film under section 5.
The Ordinance also lays down provisions for decertification, which are stated in subsections (1), (2),
(3) and (6) of section 8 and clause (a) of subsection (2) of section 9, but they do not cover decertification for exhibiting the film in form other than the one in which it is certified. The Ordinance only provides for a prosecution for such a violation, as is apparent from section 18, but not decertification. The grounds stated in clause (a) of subsection (2) of section 9 are by itself extensive in scope. The grounds for decertification being thus distinctly stated in the Ordinance and no rule having been frame under section 19(2)(f) enlarging the scope of decertification, the not cannot be enlarged. There is no section in the Ordinance which permits the Federal Government to enlarge the not on the basis of any subjective consideration. Rule 21 of the Censorship of Films Rules, 1963, was thus ultra vires of the Motion Pictures Ordinance, 1979 and could not therefore, be deemed to have been issued under the 1979, Ordinance. The action begun against the petitioners on 12-2-1979 was on the basis that certain additions made to the film after certifications were in violation of rule 21 of the 1963 Rules. The notice did not state that the addition had rendered the film unsuitable for public exhibition. For the purposes of this case; it must therefore, be assumed that the addition made were inoccuous and that the film still remained suitable for public exhibition. Since the action begun on 12-2-1979 was not finalised by 3-9-1979, the date when the Motion Pictures Ordinance, 1979, came into effect, it could not be finalised after that date as rule 21 became ultra Tires. Still further, the petitioners were not personally heard by the Federal Secretary till 30-12-1980, and the notification decertifying the film was not issued till 3-2- 1981, which was much after 8-3-1980, the date when the Censorship of Films Rules, 1980, came, into effect, repealing the Censorship of Films Rules, 1963. Even the Censorship of Films Rules, 1980, do not lay down any procedure for the decertification of a film on the ground of its exhibition in a form other than that in which it is certified, but assuming it did, it would be ultra vices of the Motion Pictures Ordinance, 1979, as already stated. All the actions of the Federal Government, therefore, taken against the petitioners after 3-9-1979, on the basis of its show-cause notice dated 6-3-1979 for the decertification of the film under subsection (1) of section 9, was illegal, null and void and taken without any lawful authority. Learned Standing Counsel for the Government conceded during arguments that subsection (2) of section 9 was not applicable and Government could not support its case under this subsection. This is obvious, for if the Government had done so, it would have been compelled to show whether show cause notice was given to the petitioners on one or more grounds as stated in the proviso to clause (a) of subsection (2) of section 9, which notice they never gave. Action under clause (a) of subsection (2) of section 9 can only taken after giving the person affected an opportunity of showing cause against the same. Since the respondents are not taking support under clause (a) of subsection (2) of section 9, this concludes the matter
26. This now brings me to the second submission raised by the learned counsel for the petitioners.
It is submitted on behalf of the petitioners that the Federal Minister connected with the Culture Division should have himself passed the decertification order, after hearing the petitioners and giving them an opportunity of cross-examining the Government's witnesses who had deposed against them or leading any evidence in their defence. First, I will deal with the question whether the Minister should have passed the order or the Federal Secretary of the Division concerned was competent to do so. This requires the examination of the Federal Government's Rules of Business, 1973. Rule 3 of these Rules, which deals with the allocation of business, inter alia states that the Federal Secretariat shall comprise the Ministries and Divisions shown in Schedule l; that the business of the Government shall be distributed among the Divisions in the manner indicated in Schedule II; and that the Prime Minister shall allocate amongst his Ministers the business of Government by assigning the Several Divisionsspecified in Schedule I to the charge of a Minister.
Rule 4, which relates to the organization of Divisions, inter alia states that each Division shall consist of a Secretary to Government and of such other officials subordinate to him as Government may determine; that the Secretary shall be the official head of the Division and shall be responsible for its efficient administration and discipline and for proper conduct of business assigned to the Division under rule 3(3for the due execution of the sanctioned policy; and that the Secretary shall be organize the Division or Divisions under his charge into a number of working units to be known as sections. Rule 5 relates to the transaction of business. This rule inter alia states that no important policy decision shall be taken except with the approval of the Prime Minister ; that it shall be the duty of a Minister toassist the Prime Minister in the formulation of policy; that subject to sub- - rule (PLD 1977 Lab. 145); the Minister shall be responsible for policy concerning his Division; that the business of the Division shall ordinarily be disposed of by, or under the authority of, the Minister Incharge ; and that the Secretary shall assist the Minister Incharge in the formulation of policy, duly executed the sanctioned policy, keep the Minister Incharge generally informed of the working of the Division and of any important case disposed of without reference to the Minister and, subject to the provisions of the rules, and with the approval of the Minister Incharge, issue standing orders laying down the manner of disposal of cases in the Division, including the distribu--petition of work amongst the Officers of his Division and such orders may specify the cases or class of cases which may be disposed of by an Officer subordinate to him. It is, therefore, clear that though under sub- rule (2) of rule 4 and sub-rule (9) of rule 5 of the Rules of Business, 1973, the Secretary basically is the official head of his Division and is responsible for its efficient administration and discipline and for the proper conduct of they business relating to his Division and for the due execution of the Govern--ment's sanctioned policy (as may be laid down by the law or otherwise) yet the business of the Division, in view of sub-rule (8) of rule 5 of the Rules of Business, must ordinarily be disposed of by the Minister Incharg or under his authority. Since the Minister Incharge, as a political figure, cannot be expected to attend every little business to be transacted in his Division, standing orders are issued, with the approval of the Minister Incharge, under clause (f) of sub-rule (9) of rule 5 laying down inter alia the manner of disposal of cases in the Division. Under standing orders dated 24-6-1980 issued by the Ministry concerned, with the approval of the Minister Incharge, business of the Culture Division relating to sec--tions 3, 6(2), 15 and 19 of the Motion Pictures Ordinance, 1979, was allocated to be dealt with by the Minister Incharge himself, whereas the relating to sections 7, 8(6), 9, 11, 14 and 20 was allocated for exercise by the Secretary himself, because they involved day to day administrative decisions. In the instant case, the decision by the Federal Secretary was taken under section 9 of the Motion Pictures Ordinance. 1979. The Federal Secretary, therefore, was competent to take the said decision, in view of the standing orders issued on 24-6-1980, with the approval of the Minister Incharge. By virtue of the relevant standing order, the business of the Division relating to section 9 of the Motion Pictures Ordinance, 1979, stood disposed of under the authority of the Minister Incharge, as required by sub-rule (8) of rule 5 of the Federal Governments Rules of Business, 1973.
27. As regards the next contention by the learned counsel for the petitioners, namely, that the petitioners should have been given an opportunity to cross-examine the witnesses of the Government and also to lead evidence their defence, in the given circumstances of the case, as I see it, no such necessity arose.. The picture was first shown on 12-2-1979 to the Central Board of Film Censors, Islamabad, in which nine members were present, of whom five had earlier examined the. Film at the Committee and Board stages, who, after seeing the film, confirmed . That the film contained 14 unauthorised portions, as listed in para. 4 of this judgment. These five members had actually seen the picture a little over a month back. They were, therefore, in a position to judge whether the film had been tampered with. On a request made by the petitioners, the Ministry of Culture also agreed to have the film examined by the Appellate Committee. Accordingly, on 4-11- 1979 the Federal Government directed the petitioners to deposit a print of the film for display before the Appellate Committee, so that the unautborised additional scenes which were with them could be shown with the original .Film. However, the petitioners did not deposit the said film, whereupon on 20-11-1979 the 14 scenes were alone shown to the Appellate Committee which comprised of Mr. Justice K. M. A. Samadani, the Federal Law Secretary, Mr. Rashid Ahmad. Additional Secretary Population an Dr. Nisar Ahmad, Additional Secretary, Science &. Technology. Both Mr. Justice Samadani and Mr. Rashid Ahmad, in separate notes recorded by them, agreed that 14 scenes listed in para. 3 of this judgment did not form a part of the film earlier shown to them. The third member of the Appellate Committee did not submit his report. Since five members of the Central Board of Film Censors, Islamabad, who had inspected the film on 12-2-1979, and two members of the Appellate ,Committee, who had examined the picture on 20-11-1979, confirmed that the 14 scenes listed in para. 4 of this judgment did not form a part of the film as was shown to them earlier, when certificate was desired, and considering the fact that the petitioner in their reply to the show-cause notice had not disputed the fact but had rather asserted that the allegedly added 14 scenes constituted a part of the film and was earlier' shown to the Board and the Appellate Committee and constituted a part of the film as was certified, tire Federal Secretary was reasonably justified in the circumstances of the case to accept the version of the members of the Board and the Appellate Committee without permitting the petitioners to cross-examine any of them or lead evidence in their defence. The Supreme Court has already held "in Shahid Afzal's case where also the case was one of two versions, namely, whether portions of a film which had been excised by the Censor Board alongwith some portions which bad never been exhibited for censorship before it, were included in the film 'displayed to the public, which allegation was denied by the Producer on the ground that all those portions were present in the film when it was shown to the Censor Board before certification and had been passed as such, the Supreme Court held that there was no necessity for the Federal Secretary to have, conducted any elaborate inquiry or recorded any elaborate order in that respect. The members of the Central Board of Film Censors and, the members of the Appellate Committee who gave a finding against the petitioners had no malice whatsoever against the petitioners. Though a general and vague allegation of malice is levelled against them in the writ petition, but the petitioners have not attempted to give particular thereof as is required by law. In the absence of proper particulars t show what malice each member of the Central Board of Film Censors o the Appellate Committee bore, to ,the petitioners, it is not possible t accept the contention that any . One, of these persons bore any particular ill-will against. The petitioners as to compel them to give a decision against them with the prime object of destroying their business, reputation or good--will vis-a-vis their picture `Mauls Jat'.
28. This now brings me to the third and fourth submissions raised by the learned counsel for the petitioners, namely, that relating to the members of the Board and the Appellate Committee being motivated by malice against the petitioners and appellant to Committee being only shown the 14 excerpts of the film and not the w e film. These already stand answered in para. 27 above. Those contentions re, therefore, rejected.
29. As regards the fifth and last submission made by the learned counsel for the petitioners, namely, that the notification was not issued in the name of the President of PakistanAs already stated in para 26 above, the Federal Secretary bad the power to decide;the case under section 9 of the Motion Pictures' Ordinance, 1979. The final. Notification was issued under the direction of the Federal Secretaryhimself. The notification is properly authenticated under Article 99 (2) of the Constitution of Pakistan, 1973. As held in Abdur Rashid's case (9) the mere omission of a reference to the' President of Pakistan in a notification, which otherwise is properly authenticated, will not invalidate the notification. No objection was raised that the notification was not properly authenticated. In these circumstances, they contention that as the notification was not issued in the name of the President, of Pakistan, it is invalid, has no force. However. I have already held that it is invalid for other reasons, for which paras. 23 to 25 of this judgment may be referred.
30. The upshot of the above discussion is that the action of the Federal Government taken after the coming into force of the Motion Pictures Ordinance, 1979, on 3-9-1979, against the petitioners for the decertification of the film "Mauls Jat" on the basis of rule 21 of the 1963 Rules, was' illegal, null and void and taken without any lawful authority. At best, the' Federal Government could have ordered a prosecution against the petitioners'' under section 18 of the Ordinance
31. In view of the above, this writ petition is accepted and the impugned notification of the Federal Government dated 26-1-1979 decertifying the Punjabi film "Maula'Jat" is declared to be illegal, without lawful authority and of no legal effect and that the said film continues to remain a certified film and can be distributed and exhibited by the petitioners as hithertofore, subject to the 14 scenes as listed in para. 4 of this judgment, which are alleged to have been added later, being excised from the said film. The petitioners shall be entitled to their costs.