' AMER RAZA NAQVI, J.--This is an appeal under section 30-A of PEMRA Ordinance, 2002. Through this appeal appellant has challenged decision of respondent No,2 passed on 2oth October, 2014 annexed as annexure "A" at page No,31. Through impugned order it was decided as under:-- a. License No,PEMRA/10(3)/2002-STV-10 dated 13-4-2014 issued to M/s ARY Communication (Pvt.)
Ltd for ARY News is suspended for a period of fifteen (15) days with immediate effect. b. Keeping in view the past conduct of the Licensee as well as the repetition of similar violation by the Licensee, the Authority by invoking provision of Section 32 PEMRA Ordinance 2002 as amended by the PEMRA (Amendment Act), 2007, imposed a fine of Rs,Ten (10) Million on the Licensee, to be deposited before the expiry of the suspension period, failing which, the channel shall not be allowed to resume its transmission and its license shall remain suspended till such time the fine is paid. c. The case of the Licensee is also forwarded to the Council of Complaints under Section 30 of the PEMRA Ordinance 2002 as amended by the PEMRA (Amendment Act), 2007.
2. As evident from the above decision the licence of appellant was suspended for 15 days and a fine was imposed to the tune of Rs,10 million. It was further ordered that in case the fine is not deposited before the expiry of suspension period channel shall not be allowed to resume its transmission. This decision was in consequence of show cause notice issued to the appellant which has been filed as Annexure "B" at page No,
35. It has come on record that appellant submitted reply dated 16th October, 2014 which has been annexed as Annexure "C". Through this appeal appellant has prayed that impugned order dated 20-10-2014 be declared illegal, arbitrary, mala fide, without jurisdiction and ultra vires of Articles 10-A, 18 and 19, 25 read with Article 4 of Constitution of Islamic Republic of Pakistan. It was also prayed that show cause notice referred above may also be declared as illegal, mala fide and without jurisdiction. Remaining reliefs are covered in the above referred reliefs sought in the appeal.
3. This matter came up for hearing on 19-11-2014 and all the learned counsel on such date requested that in view of order passed by Hon'ble Supreme Court in Civil Petition No,2119/2014 on 5- 11-2014 this matter may be fixed for hearing on 20-11-2014 at 8-30 a.m., the matter was heard on such date and was adjourned for further hearing for today. Today all the learned counsel appearing in the matter concluded their arguments and they also agreed that in view of the fact that matter has been heard at length, the whole appeal can be disposed of at Katcha Peshi stage.
4. Learned counsel for the appellant submitted that the allegation contained in the show cause notice is with regard to certain programs, which were aired from the television Channel of appellant and it was alleged that various contents of such program were in violation of PEMRA Act, Rules and Code of Conduct provided under Schedule "A" to the PEMRA Rules. He also pointed out that certain judicial proceedings were referred in the show cause notice and appellant was asked to show cause in writing immediately but not later than seven days from the date of issuance of the notice as to why appropriate legal action may not be taken against the appellant. Learned counsel submitted that October 10, 2014 on which date this show cause notice was issued was Friday and was followed by two holidays and therefore the notice was received to the appellant on 13-10-2014. He also referred time prescribed for filing of reply which was seven days from the date of issuance of this notice. Per learned counsel the time was said to have started from the issuance date which is against the common sense. I can only run after the notice has been received by appellant. He further submitted that the notice further provided that appellant should appear for personal hearing on October 16, 2014 at 1100 hours at PEMRA Head Quarters, Islamabad. Per learned counsel appellant has gone to PEMRA Head, Quarters, Islamabad on said date but he was not given any hearing and therefore the reply was sent through fax and through personal messenger.
Learned counsel submitted that these very dates and timings show that it was intention of the respondent No,2 from the very first date that proper opportunity of hearing should not be available to the appellant and it was never intended by the respondent No,2 that proper hearing be given to appellant. He further submitted that it appears that appellant did not exercise its powers independently and relied on various judicial proceedings. Learned counsel further submitted that natural course of justice should have been that first appellant should have been given a chance to submit written reply, time of which was fixed in the notice as seven days and after receiving of reply personal hearing should have been afforded to the appellant. Learned counsel referred various contents of the decisions and emphasized On Para 3 and Para-4 and submitted that such contents show that order was passed presuming that such order should have been passed by the Authority in view of the orders dated 9-10-2014 and 17-10-2014 passed by Lahore High Court in Suo Motu Criminal Original No,2070/2014. He referred a portion of the order which was passed on 21-10- 2014 available at Page 763 and pointed out that these show cause notices and decision were referred in Para. 7 of Order passed on 21-10-2014 in those proceedings. It was observed in Para 5 that "perusal of orders dated 9-10-2014 and 17-10-2014 clearly reflects that no such direction was eve issued to the PEMRA authorities to cancel the license or pass any order for closure of the Network rather the direction was confined to a particular program titled as "Khara Sach", containing aspersions against Judges of the superior courts in particular and Judiciary as an institution, which was aired thrice on 22nd, 23rd and 24th September 2014". It is further argued that the very contents of the decision show that respondent No,1 presumed that the intention of the Hon'ble Lahore High Court was that this kind of decision should have been made by the authority however such aspect was clarified by the Hon'ble High Court in above referred order. He further referred certain portions of order passed in those proceedings and submitted that unconditional apology was tendered by the appellant in those proceedings where C.E.O. Of the appellant was present and subsequently even said program was allowed to be resumed. This program was not being aired in compliance of order dated 17-10-2014 passed by the Hon'ble Lahore High Court.
5. Learned counsel submitted that through impugned order his constitutional right of carrying on business, rights of expression, protection and other relevant articles mentioned in prayer clauses have been violated. On legal aspects learned counsel has referred section 8 of the PEMRA Ordinance, 2002 and submitted that subsection (5) of Section 8 specifically provides that how an order or decision is to be passed. Such section provides that decisions of the authority shall be taken in writing and shall identify the determination of the Chairman and each member separately. He also relied on PLD 2013 SC 244 and submitted that such case-law provides that Chairman of the Authority is to be a person qualified under subsection (2) of section 6 of the Ordinance. It was pointed out that presently the person who is serving as acting Chairman is member of police service of Pakistan, whereas, the above referred provision requires that Chairman of the Authority should be an imminent professional of integrity and competence, having substantial experience in media, business, management, finance, economics or law. He submitted that admittedly the present Chairman is not a professional in any of these fields. He further submitted that acting Chairman cannot take any decision in the authority in exercise of powers which are required to be exercised by the authority. He further submitted that in fact there is no provision in the PEMRA Ordinance available for appointment of any acting Chairman. In support of his contention he reiterated the case of Hamid Mir. He has also referred Section 3. He submits that in absence of Chairman the authority cannot exercise statutory powers and acting Chairman maximum can perform day today functions of the authority but authority cannot take any decision defined under section 8 without presence of any Chairman. Learned counsel in this regard has also referred cases of Haris Steel Mills and Shahid Orakazi cases reported as PLD 2010 SC 1109 and PLD 2011 (sic) 365. Mr. Abid Zuberi further argued that requirement of Section 24-A of the General Clauses Act is also not fulfilled at the time of passing of impugned order. He has relied upon 1998 SCMR 2268 and 2006 YLR 3132.
6. Mr. Abid Zuberi while referring suspension imposed through impugned decision submitted that Hon'ble Supreme Court has held that suspension has very serious consequences and such power should be exercised with utmost care and caution he has relied upon PLD 1965 SC 605 and PLD 1999 SC 1126. He also referred subsection (3) of Section 30 and argued that it is specifically provided: in such subsection that license cannot be varied, suspended, revoked under subsection
(1) of Section 30 unless reasonable opportunity to show cause and personal hearing is given to the aggrieved party. He submitted that very contents of the show cause notice and the proceedings show that no opportunity has been given to the appellant for explaining his position and to contest the show cause notice.
7. On the other hand Mr. Kashif Hanif submitted that so far as appointment of Chairman of the Authority is concerned the matter is pending before the Hon'ble Islamabad High Court. He referred judgment passed by Hon'ble Supreme Court in Civil Petitions Nos.1327 and 1350 of 2014 and submitted that the appointment of present Acting Chairman was suspended by Islamabad High Court and when such suspension was challenged before Hon'ble Supreme Court in the above referred petitions, such suspension was set-aside, meaning thereby that Supreme Court has given saving to the appointment of acting Chairman till the decision of proceedings at Islamabad High Court. Mr. Kashif Hanif submitted that the nature of program and substance in those programs which were questioned and are subject matter of show cause notice are such that a bare look on the scripts justifies the show cause notice and decision made in the matter and technicalities are not much relevant in this regard. He submitted that subsection (5) of Section 8 has not been violated and requirement of subsection has been complied with by the authority while passing the impugned order. He produced draft minutes of 100th meeting of authority during the hearing and submitted that such minutes clearly show that requirement of subsection (5) of Section 8 has been fulfilled and objection in this regard has no merit such minutes however were not filed earlier. He also referred PLD 2011 SC 44 and submitted that at Pages 105 and 106 of that judgment it has been held that when an order is passed by an authority competent to pass such order, it should not be interfered by any higher forum or the Court. With regard to the proceedings Mr. Kashif submits that fair opportunity was given to the appellant and appellant in fact sent a reply which was considered by the authority. He denied the allegation of the appellant that they were not provided fair opportunity and they were not able to give their detailed reply to the authority to be considered. He referred document available at Page 51 in the file, which is confirmation of fax transmission.
According to such confirmation about 12 pages were received by the respondent No,2 and those pages were sent by the appellant. He further submitted that these proceedings are independent proceedings and appeal is a statutory appeal and it has no nexus with the contempt proceedings lying before the other High Courts or Hon'ble Supreme Court. He submits that the impugned proceedings are independent proceedings and no reliance has been placed on judicial proceedings while passing the decision and the decision has been passed independently. He submits that such statement was also made by the Acting Chairman PEMRA before the Hon'ble Lahore High Court in the proceedings above referred, while arguing the merits of the case he referred rejoinder of the appellant available at Page 739 and submitted that para-6 shows that submission of respondent No,2 made at Page 303, which is comments of respondent No,2 has been accepted and it has been admitted that transcripts were not filed properly by appellant. He submitted that the respondent No,2 has filed the actual transcripts. Mr. Kashif further submits that in view of continuous past conduct of the appellant penalty imposed upon them is reasonable and no interference should be made in such finding. He further submits that the appellant has not denied in these proceedings that program has not been aired.
8. Mr. Mohammad Qasim, learned Standing Counsel has adopted the arguments of Mr. Kashif Hanif.
9. I have heard all the learned counsel present and perused the record with their able assistance.
Certain proceedings pending before other High Courts and Hon'ble Supreme Court were referred by the parties but all the parties also submitted that those proceedings have no nexus with the present appeal so far as the merits of the appeal are concerned as this is a statutory appeal and has to be dealt in accordance with law and in accordance with principles which govern hearing of a statutory appeal. Suo motu proceedings and proceedings for contempt of court are obviously distinguishable from the present proceedings and therefore those are not to be considered for the purpose of decision of present appeal. Moreover suo motu proceedings by the Hon'ble Lahore High Court and contempt proceedings before Hon'ble Supreme Court are being heard in their respective jurisdiction and it cannot be subject matter of present appeal in any way nor this Court can make any observation in that regard. The present proceedings are confined only to the impugned decision and the show cause notices in consequence of which the impugned order has been passed. Mr. Kashif Hanif, however, relied on a Supreme Court's judgment reported as PLD 2011 SC 44 and submitted that this Court should not interfere in a decision passed by an authority, who has power to pass such decision. He referred para-45 of the said judgment, it is mentioned in the said para "the special forum created under the statute such like Administrative Tribunals and Authorities are judges of the sufficiency of evidence and necessity, expediency and reasonableness of the action to be taken", as is evident from the very language, this observation relates to the sufficiency of evidence and in this judgment the powers of High Court under writ jurisdiction is considered. Principles of dealing with statutory appeal is altogether different from the powers enjoyed by a High Court under Article 199 as in those matters normally question of facts is not decided and for question of facts leading of evidence is necessary and furthermore aggrieved party should be given a complete, effective and reasonable opportunity to confront that evidence and to lead its own evidence in support of its respective claim or defence. Moreover in that case also earlier when the matter was pending before the High Court it was remanded back to the forum so that reasonable opportunity of being heard should be provided to the parties, it was directed that thereafter order should be passed. On page-62 of such authority reported as PLD 2011 SC 44, it is mentioned that petitioners challenged an order before the Lahore High Court, Rawalpindi Bench and that petition was disposed of by consent and matter was remanded back to Pakistan Telecommunication Authority to pass fresh decision after hearing the parties.
Subsequently that decision was passed, in para. 17 of the said judgment it was mentioned that request for extension of time to pay installment of license fee was made by means of Letter dated 3-11-2016 and it was observed that outstanding liability was never disputed by the petitioner and a cheque of equivalent amount was also sent to show their sincerity for fulfilment of their obligation under license, however, entire due amount was not paid which resulted to issuance of second show cause notice dated 1-12-2006. In view of this position it is evident that the facts and circumstances of that case are not applicable and are distinguishable in the present case, which is a statutory appeal and is to be decided accordingly.
10. I have also noted that even the contentions of the parties with regard to the scripts is also disputed and I have referred the contentions of the respective parties in the beginning of the order.
I have also noted that in the show cause notice appellant was given seven days period for giving submission in writing and was also provided opportunity of hearing on 16-10-2014, whereas, the show cause notice was issued on October 10, 2014. This period is even less than one week which was granted for reply to show cause notice and it is also not denied that during this week obviously two days were public holidays. Although Mr.Kashif Hanif submitted that these are independent proceedings but last lines of para. 4 of the decision shows that Orders dated 9-10-2014 and 17-10- 2014 passed by Lahore High Court were kept in view and observations of Hon'ble Lahore High Court dated 21-10-2014 in the proceedings referred in Para 3 of this order are relevant in this regard. It is not appropriate for me to make any observation with regard to the proceedings pending before other judicial forums, therefore, I am not making any further observation in this regard, however, contention of respective .Parties shows light on this aspect. Those submissions were made in support of respective stands of the parties.
11. Mt. Abid Zuberi submitted that very issuance of show cause notices is mala fides and is liable to be set aside. I do not agree with him in this regard. There is no evidence produced in support of the claim of mala fides on part of the respondent No,2, however, in my opinion fair opportunity of being heard has not been provided to the appellant before passing of impugned decision. The consequences suggested in the show cause notices obviously were such which could ruin the business of the appellant and therefore this was their right that they should be heard properly and should have been given reasonable chance to defend themselves and present their point of view before the authority. It does not mean that authority cannot impose the penalty referred in the show cause or imposed in the impugned decision but such an order could have been passed if merits so demanded after giving fair, reasonable and proper opportunity to the appellant. Justice should not only be done but it should be seen to have been done, therefore, in the above facts and circumstances this appeal is partly allowed. Respondent No,2 may proceed with the show cause notices issued to the appellant but before taking any final decision appellant should be given fair opportunity of being heard. They may submit their further replies in the proceedings. Whenever dates of hearing are fixed, sufficient time should be given to the appellant to prepare for such dates of hearing. Appellant shall be at liberty to take all legal and factual pleas before the authority if there is any controversy with regard to the factual aspects of the matter then parties should have a right to lead evidence in this regard.
12. Although Mr. Abid Zuberi argued in the light of case-law referred by him, that respondent No,2 has become non-functional in absence of regular chairman but in view of the fact and as pointed out by Mr. Kashif Hanif that Hon'ble Supreme Court left this question to be decided by the Hon'ble Islamabad High Court where it is pending, therefore, on this aspect also I am not expressing any observation since matter is pending before the Hon'ble Islamabad High Court. However, it is expected that respondent No,2 shall dispose of this matter strictly in accordance with law and complying with the requirement of law contained under subsection (5) of Section 8 of PEMRA Ordinance. The requirement of subsection (3) of Section 30 should also be fulfilled while deciding the matter. As a result as mentioned above this appeal is partly allowed. The impugned order dated October 20, 2014 is set aside and case is remanded back to respondent No,2 to decide it in accordance with law and in the light of observations made in this order. This appeal stands disposed of.
13. Before parting with this order, I appreciate assistance rendered by Mr. Abid S. Zuberi and Mr. Kashif Hanif, who both presented their case well and assisted this Court to decide this appeal in a very short period of time.