' SAJJAD ALI SHAH, J.--- Through first titled petition, the Petitioner has impugned letter dated 04.07.2013 of the Ministry of Interior whereby NOC dated 25.03.2013 in respect of security clearance granted to M/s. Labbaik (Pvt.) Limited in consequent to Rule 7 (d) of PEMRA Rules 2009 was withdrawn.
2. Whereas, through second titled petition, the Petitioners have impugned secret policy advice dated 28.05.2015 whereby the Ministry of Information while exercising its power under Section 5 of the PEMRA Ordinance, 2002 (hereinafter referred to as "Ordinance, 2002") advised Pakistan Electronic Media Regulatory Authority (hereinafter referred to as the "Authority") to ensure stoppage of transmission of Petitioners' BOL channel through any distribution network.
3. Since the facts and questions of law involved in both the aforestated petitions were common, therefore, at joint request we had taken up both these petitions for final hearing at the stage of katcha peshi.
4. Briefly, the Petitioner, a private limited company, on 16.09.2005 was formed by Mr. Al-Haj Siddiq Ismail, a world renowned Naat Khawan and his son Salman Siddiq Ismail and after formation of the company they applied for a licence from Respondent No.4-Authority for broadcasting and transmission of a TV channel. The Petitioner's request. After fulfilling all codal formalities including security clearance from the Ministry of Interior was allowed by the Authority and the Petitioner on 27.12.2006 was granted a licence for broadcasting and transmission of TV channel. The Petitioner initially launched its channel under the name and style of "AKS", but subsequently at their request vide letter dated 04.03.2013 the name of the TV channel was changed to BOL News. It is the case of the Petitioner that since it was facing financial crunch, therefore, it decided to induct four new directors on the board of the petitioner and in that pursuit through their another letter of the same date i.e. 04.03.2013 requested the Respondent No.4-Authority to accord necessary approval in terms of Section 30 (d) of the Ordinance, 2002 read with Rule 16 (2) of the PEMRA Rules, 2009 (hereinafter referred to as "Rule, 2009") and to allow the change in the management of Petitioner company. The request of the Petitioner's company was processed and on 20.03.2013 was considered and allowed by the Respondent No.4 in its 82nd meeting, of course subject to payment of requisite charges and security clearance. The Respondent No.4 in consequence to such decision vide its letter dated 21.03.2013 requested Ministry of Interior to undertake the process of security vetting (credibility and track record) of the newly inducted four directors. The Ministry of Interior in consequent to such request vide their letter dated 25.03.2013 (next working day) gave its no objection for change in the management of the company. The Petitioner thereafter paid all necessary charges as required under the PEMRA's Rules and thereafter the Respondent Authority vide its letter dated 26.03.2013 conveyed their approval for induction of four new directors and consequently the Board of Directors of the Petitioner company was extended from 2 to 6 Directors. The Petitioners thereafter again requested for the change of name of their TV channel from BOL TV to BOL Entertainment which request of the Petitioner was allowed by the Respondent No.4 vide its letter dated 09.04.2013.
It is further the case of the Petitioner that newly inducted directors of the Petitioner are founders of world's leading IT company known as "AXACT" and has a past record of offering best packages and benefits to its employees by providing highest salaries, bonuses, provident fund, EOBI, company maintained vehicles, fuel allowance, interest free loans, life insurance coverage, annual paid leave entitlements, scholarships for children's education etc., etc., and that they after their induction on the Board of Petitioner company advertised for new vacancies through an unprecedented full page advertisement in daily DAWN on Sunday, June 9, 2013 and received approximately 38,000 jobs applications which were under consideration. It is further the case of the Petitioner that while the Petitioner was in process of rearranging its TV channel after investing huge amount in building world class infrastructure, hiring quality human resource and purchasing world class equipment, that on 06.07.2013 they came to know that the Ministry of Interior-Respondent No.2 vide their letter dated 4th July 2013 has withdrawn the security clearance earlier accorded vide their letter dated 25.03.2013 in respect of newly inducted directors and the Petitioner envisaging action from the authority had no option but to approach this Court.
5. Mr. Abid S. Zuberi, learned counsel for the Petitioners contends that though sub-rule (5) of Rule 9 of the Rule, 2009 requires security clearance from the Ministry of Interior before the grant of licence by the Authority but there is no provision in the PEMRA Ordinance, 2002 or Rules, 2009 which requires security clearance upon the change of directors/management and even if such permission was required the same was duly obtained by the Petitioners while inducting new set of directors and therefore, once the Respondent No.2 had accorded security clearance before the induction of the new directors it had no lawful authority to revoke the same. It was further contended by Mr. Abid Zuberi that the condition of obtaining security clearance by the Directors of a company from the Ministry of Interior before obtaining licence from Authority is beyond the ambit of restriction prescribed under Article 18 through the phrase "subject to such qualification" in contrast to "reasonable restriction", as envisaged under Article 19(1)(g)(6) of the Indian Constitution in terms of the judgment of Apex Court in the case of Arshad Mehmood v. Government of Pakistan (PLD 2005 Supreme Court 193) wherein, the Apex Court has examined the Article 19(1)(g)(6) of the Indian Constitution in contrast to Article 18 of the Constitution of Islamic Republic of. Pakistan and therefore, the Respondent Authority could not take any action against the Petitioner company upon withdrawal of such NOC. He further relied on the judgment of the Apex Court in the case of Independent Music Group SMC (Pvt.) Ltd. v. Federation of Pakistan and others (PLD 2011 Supreme Court 805). It was next contended that such unilateral withdrawal of the security clearance by the Respondent No.2 violates the principle of locus poenitentiae as laid down by the Apex Court in the case Regarding pensionary benefits of the Judges of Superior Courts (PLD 2013 Supreme Court 829). It was lastly contended that the Respondent No.4 could not have taken any action against the Petitioners on the basis of such cancellation of NOC without adopting procedure as required under Section 30 of the Ordinance, 2002.
6. Mr. Abid Zuberi in respect of second petition while challenging the exercise of power by Ministry of Information under Section 5 of the Ordinance, 2002 contended that, this section only empowers the Federal Government to advice the Respondent- Authority on matter of policies, but it could not exercise overall control in respect of an individual licensee, therefore, the impugned advice of the Ministry of Information directing Authority to ensure stoppage of transmission of BOL channel through distribution network is without lawful authority. Counsel in support of his contention has placed reliance on the judgment of this Court in the case of M/s. Pakistan International Airlines Corporation v. Board 'of Trustees, Employees Old Age Benefits Institution and another (2004 PLC 255) and of the Supreme Court in the case of Pak Telecom Mobile Limited v. Pakistan Telecommunication Authority, Islamabad (PLD 2014 Supreme Court 478).
7. On the other hand, Mr. Salman Talibuddin, Additional Attorney General of Pakistan while referring to Paras 3, 5, 7 and 8 of the petition has contended that it is the case of the Petitioners that the new set of directors were inducted in the Petitioners company to ease its financial crunch and 'that, there is nothing on record which could either show the source of income of the new set of Directors or to demonstrate the flow of funds from the new set of Directors to ease such crunch or to arrange such infrastructure or to provide such ,exquisite facilities to its employees. Learned Addl. Attorney General contended that newly inducted four directors are also on the board of directors of M/s. AXACT (Pvt.) Ltd., BOL Enterprises (Pvt.) Ltd. And BOL News (Pvt.) Ltd. The purpose of incorporating former two companies as detailed in Suit No. 940 of 2015 (filed before a learned Single Judge of this Court) by the Petitioner was to manage the Petitioners company, which was in derogation of Section 206 of the Companies Ordinance, 1984 which prohibits a company whether incorporated in Pakistan or outside Pakistan from appointing any managing agent and therefore, the very purpose of incorporating BOL Enterprises (Pvt.) Ltd. And BOL News (Pvt.) Ltd. Is unlawful. Mr. Salman Talibuddin, Addl. Attorney General while placing on record certified copy of Form 29 and Form A of the Petitioner company filed with the Registrar of Joint Stock Companies contends that it reflects that the Petitioner company has total authorized capital of Rupees Two Million in the form of 200,000 shares of Rs.10/- each, out of which only 50,000 shares were subscribed by the sponsors / directors out of which the newly inducted directors had purchased 49,998 shares which means that the money brought by the new set of Directors was spent on purchase of shares from the sponsor Directors and no money was injected in the company, likewise, the purpose of forming BOL News (Pvt.) Ltd., and BOL Enterprises (Pvt.) Ltd., as per Petitioner own version was only to manage the Petitioner company which till date has not gone into commercial transmission, therefore, the newly inducted directors have to explain the source of money which is spent on purchase of machineries worth more than Rs.100 crores, employing more than 3000 personnel including top talents of media industry and regular payment of their salaries and all associated cost for running media enterprises and giving cars like Mercedes Benz to their employees construction of a world class building having all facilities including swimming pools etc.. Mr. Salman Talibuddin further while explaining the status of M/s. AXACT (Pvt.) Ltd. On the basis of Form-A and Form-29 placed on record contends this company has 600,000 shares out of which only two shares are of Mr. Shoaib Shaikh and his wife Mrs. Ayesha Shoaib Shaikh (common Directors in all companies) whereas, the remaining 599,998/- shares are held by M/s. AXACT FZ LLC, a Dubai based company, therefore, even the newly inducted. Directors have no apparent source of income through which a project of such excellence could be financed. Mr. Salman Talibuddin contended that even if it is presumed that the money is injected by AXACT, the majority shares whereof are held by a foreign company, then such investment is prohibited by the provisions of Section 25 (d) of the PEMRA Ordinance, 2002 and therefore, the Petitioner has to loose its licence. In the end Mr. Salman Talibuddin while referring to Rules 7 (d) and 9 (5) of the Rules, 2009 contended that credibility, track record and security clearance from the Ministry of Interior is required not only at the time of granting of licence but every time upon the change of the management for the simple reason that the Authority has to ensure that the newly inducted directors fulfilled the requirements of the PEMRA Ordinance and Rules.
8. As to withdrawal of security clearance without notice learned Addl. Attorney General contended that the new set of Directors of the Petitioner managed to obtain security clearance from the Ministry of Defence within one working day which was impossible as the Ministry per normal procedure has to obtain security clearance from all the agencies which procedure was not adopted in the case of Petitioner and when it was pointed out by one of such Agency i.e. I.S.I. The Ministry withdrew the No Objection, however, per Addl. Attorney General PEMRA was to give hearing before taking any action but on account of interim order obtained by the Petitioner on 08.07.2013 no proceedings could be undertaken. As to plea of locus poenitentiae, Addl. Attorney General contended that it is the Petitioner's own case that after obtaining interim order from this Court, the Petitioner made huge investments from the funds, the source whereof is yet to be disclosed. He therefore, prayed for the dismissal of the petition.
9. Likewise, Mr. Kashif Hanif, learned counsel appearing for the Respondent No.4 Authority contends that the Ministry of Interior had withdrawn its security clearance on 04.07.2013 and before the Authority could take any action in terms of Ordinance, 2002, the Petitioner approached this Court and on 08.07.2013 through an interim order got the letter dated 04.07.2013 suspended and therefore, the authority could not take any action against the Petitioner company. Mr. Kashif Hanif further contended that Authority on 21.03.2013 i.e. Friday, had requested the Ministry of Interior for conducting security clearance of the new management and the security clearance was received on 25.03.2013 i.e. On Monday. Per counsel keeping in view that the intervening two days viz. Saturday and Sunday being weekly holiday, the worth of NOC could very well be gauged as in fact the Ministry of Interior never investigated antecedents of new management. Mr. Kashif Hanif contended that the Respondent No.2 Ministry of Interior was under the statutory obligation inter- alia to ensure that the new management is not funded or sponsored by a foreign organization. In respect of second petition, Mr. Kashif Hanif while referring to Section 5 of the PEMRA Ordinance, 2002 contended that the directions of the Federal Government on matter of policy are binding on the Authority and the question as to whether the directions are in respect of a matter of policy or not has also to be decided by the Federal Government, therefore, they have no option but to comply with the directives.
10. We have heard the learned counsel for the respective parties, perused the record as well as the case law cited at bar.
11. In our opinion the controversy, which need to be resolved in the instant petition appears to be of two fold,firstly, as to whether Rules 7
(d) and 9(5) of Rules, 2009 which provides for credibility, track record and clearance from the Ministry of Interior are intra vires to Ordinance, 2002 and if so, then as to whether for every change in the management of a company holding broadcasting, media and distribution service licence from Authority, a fresh security clearance from the Ministry of Interior is needed or not.
12. The relevant portion of Rules 7 of the Rules, 2009 which lays down criteria for evaluating licence application and require security clearance reads as follows:-
7. Criteria for evaluating licence application.--- Applications for the grant of a licence shall, in the first instances, be short listed by adopting the following criteria, namely:- Whereas, Rule 9 which provides the manner in which licence for a broadcasting media and distribution service company is to be granted and places a condition of obtaining security clearance, and reads as follows:-
9. Grant of licence.--- (1) The. Authority shall, if it is satisfied that the applicant fulfills the criteria as provided for in the Ordinance, these rules and regulations made there under and has paid the prescribed fee and other charges, if any, grant licence to the applicant ' The Authority, if satisfied that the grant of the licence to a particular person is not in the public interest, may, for reasons to be recorded in writing and after giving the applicant an opportunity of being heard, refuse to grant a licence; ' The Authority shall, within one hundred days from the date of its receipt, take decision on the application for grant of licence subject to clearance from the Ministry of Interior and frequency allocation by FAB in relevant cases.
' These rules have been framed by Pakistan Electronic Media Regulatory Authority with the approval of the Federal Government while exercising power conferred by subsection (1) of Section 39 of the Ordinance, 2002. Perusal of Section 39 would reflect that the Authority has been empowered to make rules to carry out the purposes of the Ordinance, 2002, whereas, subsection (2) thereof provides that without prejudice to the generality of the powers of the Authority to make rules to carry out the purpose of the Ordinance also empower the Authority to provide for various matters enumerated in clauses (a) to (e) of Section 39 including providing of a manner in which the application for the licence are to be granted.
13. In order to find out as to whether the above reproduced rules are intra vires the Ordinance, 2002 and could be held to have been made to carry out the purpose of Ordinance, 2002, the Ordinance itself needs to be scrutinized. The function of the Authority are detailed in Section 4 of the Ordinance, 2002 and provide that it would be the responsibility of the Authority to regulate the establishment and operation of all broadcast media and distribution services in Pakistan established for the purposes of international, national, provincial, district, local or special target audiences, including distribution of foreign and local TV and radio channels in Pakistan vests with the Authority, whereas, Section 19 provides that the Authority shall have the exclusive right to issue licenses for the establishment and operation of all broadcast media and distribution services, provided that such exclusive right is used by the Authority in conformity with the principles of fairness and equity applied to all potential applicants for licenses whose eligibility shall be based on prescribed criteria notified in advance and through an open, transparent bidding process, whereas, subsection (2) of Section 19 prohibits engagement of any person in broadcast media or distribution service without obtaining a licence from the authority.
14. Likewise, Section 20 of the Ordinance, 2002 places following restrictions on the licensee:-
(a) ensure preservation of the sovereignty, security and integrity of the Islamic Republic, of Pakistan;
(b) ensure preservation of the national, cultural, social and religious values and the principles of public policy as enshrined in the Constitution of the Islamic Republic of Pakistan;
(c) ensure that all programmes and, advertisements do not contain or encourage violence, terrorism, racial, ethnic or religious discrimination, sectarianism, extremism, militancy, hatred, pornography, obscenity, vulgarity or other material offensive to commonly accepted standards of decency;
(d) comply with rules made under this Ordinance;
(e) broadcast, if permissible under the terms of its licence, in the public interest specified by the Federal Government or the Authority in the manner indicated by the Government or, as the case may be, the Authority, provided that the duration of such mandatory programmes do not exceed ten per cent of the total duration of broadcast or operation by a station in twenty-four hours except if, by its own volition, a station chooses to broadcast such content for a longer duration;
(f) comply with the codes of programmes and advertisements approved by the Authority and appoint an in-house monitoring committee, under intimation to the Authority, to ensure compliance of the Code;
(g) not broadcast or distribute any programme or advertisement in violation of copyright or other property right;
(h) obtain NOC from Authority before import of any transmitting apparatus for broadcasting, distribution or teleporting operation;
(i) not sell, transfer or assign any of the rights conferred by the licence without prior written permission of the Authority.
' In the same manner Section 25 prohibits grant of licence to certain categories of persons enumerated hereinbelow:-
(a) a person who is not a citizen of Pakistan or resident in Pakistan;
(b) a foreign company organized under the laws of any foreign government;
(c) a company the majority of whose shares are owned or controlled by foreign nationals or companies whose management or control is vested in foreign nationals or companies; or
(d) any person funded or sponsored by a foreign government or organization.
' Whereas Section 30 empowers the Authority to revoke or suspend the licence of a broadcast media or distribution service on various grounds enumerated in Section 30, relevant for the purpose of this petition, are reproduced hereinbelow:-
30. Power to vary conditions, suspend or revoke the licence.--
(1) The Authority may revoke or suspend the licence of a broadcast media or distribution service by an order in writing on one or more of the following grounds, namely:- ' Where the licensee is a company, and its shareholders have transferred a majority of the shares in the issued or paid up capital of the company or if control of the company is otherwise transferred to persons not being the original shareholders of the company at the time of grant of licence, without written permission of the Authority.
(2)
(3)Except for reason of necessity in the public interest a licence shall not be varied, suspended or revoked under subsection (1) or subsection (2) unless the licensee has been given reasonable notice to show cause and a personal hearing.
15. In our opinion the scrutiny of the scheme of law as provided under the Ordinance, 2002 is to be adjudged keeping in view the power of the media in the modern world in constructing public opinion, and as rightly said by a columnist that it is the most powerful weapon of 21st century and - is as lethal a weapon as a nuke. It has the capability to convert day into night and night into day, a hero into a villain and villain into hero. Media has brought revolutions in the world and has transformed the globe into a global village. It has virtually erased the geographical boundaries, removed the barriers of social, political and cultural differences and as a result this diversified world has been reduced to remote control, and in our opinion for this reason the legislature has vest the "authority" with the powers to ensure that no broadcasting and transmission licence is granted to a person who is not a citizen or resident of Pakistan or to a foreign company recognized under the foreign laws or to a company the majority of whose shares are owned and controlled by foreign nationals or companies whose management or control is vested in foreign nationals or companies, or to any persons funded or sponsored by a foreign government or organization and that the transmission of such channel ensures the preservation of sovereignty, security and integrity of the country. It should preserve national, cultural, social and religious values and the principles of public policy as enshrined in the Constitution of the Islamic Republic of Pakistan, and also to ensure that programmes and advertisements, so transmitted, do not contain or encourage violence, terrorism, racial, ethnic or religious, discrimination, sectarianism, extremism, militancy, hatred, pornography, obscenity, vulgarity or other material offensive.
16. The idea appears to be that the foreign funded companies or persons should not be allowed access to the mind of the people of our country or be allowed to generate public opinion to suit their purposes as a nation could be conquered without war if the minds of its people are conquered and for this reason even Pakistani nationals or local companies funded or sponsored by foreign funded organizations are not entitled to the broadcasting and transmission licence under Section 25(d) of the Ordinance, 2002. In the circumstances, we are of the view that obtaining security clearance as required by Rule 9(5) of course is to carry out the purpose of the Ordinance, 2002.
17. As to the contention of Mr. Abid Zuberi that the condition of security clearance violates the right of freedom of trade, business or profession, as enshrined in Article 18 of the Constitution of Islamic Republic of Pakistan appears to be misconceived for the reason that the Apex Court in the case of Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd., (PLD 2014 Supreme Court 1) while interpreting Article 18 has held that the right of freedom of trade, business or profession is not an absolute right rather it is qualified by the expression "subject to such qualifications, if any, as may be prescribed by law". The relevant portion from the judgment is reproduced as follows:- "A bare perusal of Article 18 would show that the right of freedom of trade, business of profession is not an absolute right rather it is qualified by the expression, "subject to such qualifications, if any, as may be prescribed by law" and there are three exceptions which stipulate; (a) the regulation of any trade or profession by a licensing system; (b) the regulation of trade, commerce or industry in the interest of free competition therein; and (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons".
18. As to the judgment of the Apex Court in the case of Arshad Mehmood (supra), relied upon by Mr. Abid Zuberi, suffice is to observe that the legal and factual position in the said case was totally different than the one in hand. The appellants in the said case were completely ousted from their trade/business of transport for which they were having valid route permits by introducing a scheme under Section 69-A of the West Pakistan Motor Vehicles Ordinance, 1965 by giving the routes on which the appellants were plying their vehicles to the private Respondents. In the said case the Apex Court in the circumstances while examining the rights of the appellants in para-23 of its judgment observed as follows:- "It is well settled that the rights of trade / business or profession under Article 18 of the Constitution is not an absolute right but so long a trade or business is lawful a citizen who is eligible to conduct the same cannot be deprived from undertaking the same, subject to law which regulates it accordingly. The word "regulation", as used in Article 18 of the Constitution has been interpreted by the Courts of our country keeping in view the provisions of Article 19(1) (g).(6) of the Indian Constitution."
' The Apex Court after deliberating upon various judgments of the Indian Supreme Court in which Article 19(1) (g) (6) of their Constitution was interpreted in para-25 of the referred judgment concluded in the following terms:- "it may be noted that broad principles laid down in the judgments of Indian jurisdiction, some of which have been noted herein above, interpreting the word "reasonable restriction", did not say that it would also mean "prohibition" or "prevention" completely, except under certain circumstances".
' And the Apex Court ultimately directed the Government:- "To suitably amend the Motor Vehicle Ordinance, 1965, if need be, in the public interest and welfare, consistent with the provisions of Article 8 of the Constitution of Islamic Republic of Pakistan, ensuring fair opportunity to the transporters to conduct their business freely, with a provision of better facilities of travel to the passengers in a dignified manner, through reliable stage carriages".
' However, in the instant case no ban or "prohibition" on the trade or profession has been imposed by the Government, what all required is the security clearance i.e. Antecedent of the management/Directors and the source of funds which they would invest in such trade or profession which of course is one of the requirement of Ordinance, 2002 before giving them an access to the minds of its people.
19. So far as the case of Independent Music Group SMC (Pvt.) Ltd. (supra) relied upon by Mr. Abid Zuberi to plead that the Apex Court has held that there was no need of obtaining security clearance from the Ministry of Interior. Suffice it to observe that the case of Independent Music Group SMC (Pvt.) Ltd. Was decided under the PEMRA Rules, 2002 which did not have the provision of security clearance as such condition was introduced in PEMRA Rules, 2009. Secondly, it was established from the record that the Petitioner-Independent Music Group SMC (Pvt.) Ltd. Was already granted four broadcasting licenses which were operational and there was nothing on record to establish as to what threat if any was likely to be caused from the grant of 5th licence to the Petitioner. Thirdly, in the instant case Ministry of Interior has not refused the grant of security clearance to the Petitioner till date, in fact it has just recalled the security clearance as it was obtained without due process as provided in the Rules and there is still likelihood that after fulfilling all formalities if nothing is found against the new management of Petitioner and that they would explain the source of funds so far spent on the purchase of machinery and other infrastructure perhaps their grievance would be remedied.
20. As to the second limb of the argument that once security clearance has been obtained then there is no requirement under the Ordinance or the Rules for obtaining fresh security clearance.
The contention in view of Section 30 (d) of the Ordinance could not sustain for the simple reason that the law contemplates security clearance of the management and not of the company as company being a fictitious person run by its management and therefore, on every change in the shareholding of a company, the investment of the existing management is taken out and the new management makes investment and at that juncture the Authority has to ensure that the security clearance of the new management is undertaken in order inter alia to find out as to whether, the funds so invested in the company as well as in payment to the outgoing directors, are not funded or sponsored by a foreign government or organization and for this purpose the security clearance on change of management at every stage is required. Even Rule 30(d) of the Ordinance, 2002 itself provides that the Authority is empowered to revoke or suspend the licence of a broadcast media or distribution service in cases where the licensee is a company, and its shareholder have transferred a majority of the shares in the issued or paid up capital of the company or its control to person not being the original shareholders of the company without written permission of the Authority.
"Secret ' GOVERNMENT OF PAKISTAN MINISTRY OF INFORMATION, BROADCASTING AND NATIONAL HERITAGE Subject: A POLICY ADVICE UNDER SECTION 5 OF THE PEMRA ACT 2007 ' A media report published in New York Times on 18.05.2015 alleged malpractices on part of Axact (Pvt.) Ltd, which has severely damaged image of the country among international community.
24. Whereas, PEMRA has issued satellite TV licenses to M/s. Labbaik (Pvt.) Ltd for Bol News and Bol Entertainment. Some of the Directors of Axact (Pvt.)
Ltd, including its Chief Executive Officer are known to be the Directors of M/s. Labbaik (Pvt.) Ltd, a licensee of PEMRA for BOL TV Channel. It has further been learnt that M/s. Labbaik (Pvt.) Ltd. With same constitution of the company, is going to launch its transmission of Bol Channels.
3. As per news reports, Federal Investigation Agency
(FIA) has taken cognizance of the matter and the investigation is in process. Since the matter is under investigation, letting these channels to go on-air may seriously hamper fair and transparent investigation of the matter.
4. In terms of Section 5 of the PEMRA Ordinance - 2002 (Amendment Act, 2007), PEMRA is hereby advised to ensure stoppage of transmission of BOL21. In the instant case not only the majority of the shares in the paid-up capital of the company were sold out by the sponsor Directors, but the control of the company itself was handed over to the new management and that too in clear violation of Section 30 (d) of the Ordinance, 2002. This position has emerged on our examination of the Form-A Annual Return of the Petitioner company for the period ending 30.10.2012 which reflects the transfer of shares from the sponsor Directors on 30.10.2012 in favour of the new management, whereas the request to the Authority to allow change of management was made on 25.03.2013 and on this count alone the licence of the Petitioner company was liable to be cancelled as provided in Rule 30 (d) of the Ordinance, 2002.
22. The plea of locus poenitentiae agitated by Mr. Abid has also not impressed us for two obvious reasons, firstly, according to the Petitioner's own case the entire investment was made by the new management after the security clearance was recalled and upon obtaining interim order from this Court and secondly, there is no order .Whereby the Petitioner's license for broadcasting and transmission has been recalled, therefore, it is still open for the new management to successfully run through the security clearance and may validly operate their business in accordance with law.
23. So far as the issuance of policy advice under Section 5 of the Ordinance, 2002, subject matter of second petition, whereby Ministry of Information advised the Authority "to ensure stoppage of transmission of BOL Channels through any distribution network for the time being", we in order to portray the controversy would reproduce the policy advice as well as Section 5 of the Ordinance, 2002:- channels through any distribution network for the time being.
5. This issue with approval of the competent authority.
' Sd/- (Syed Khizar Ali Shah)
Deputy Director (PBC)
Tele.. 9103648 ' Chairman, PEMRA, Islamabad ' M/o IB&NH u.o. No.2(15)/2015-PEMRA, dated May 28, 2015
5. Power of the Federal Government to issue directives. --- The Federal Government may, as and when it considers necessary, issue directives to the Authority on matters of policy, and such directives shall be binding on the Authority, and if a question arises whether any matter is a matter of policy or not, the decision of the Federal Government shall be final".
' Mr. Abid Zuberi while challenging the issuance of such policy advice had contended that Section 5 of the Ordinance, 2002 is pari materia to Section 5 of the Pakistan International Airline Cargo Act, 1956 as well as to Section 8 of the Pakistan Telecommunication (Re-organization) Act, 1996 and both the pari materia provisions came up before the Hon'ble Supreme Court and this Court in different cases and in the case of Pakistan International Airline Corporation (supra) this Court while interpreting such provision held as follows:- "From the aforesaid provisions of the PIAC Act it is established beyond any doubt that the Petitioners-Corporation is an independent statutory establishment having full power and authority to carry out the functions and duties entrusted to it by the PIAC Act and in performance thereof no limitation or restraints are placed. The Central Government has been empowered to issue directives to the Petitioners-Corporation on matters of policy but has no authority to interfere or dictate on matter which comes solely within the functions, duties and powers of the Petitioners- Corporation. The mere fact that the Federal Government through the Ministry of Defence exercises certain restraints and has the authority to issue directives to the Petitioners-Corporation on matters of policy will not make the Petitioners-Corporation either subservient to the Federal Government or would bring it within the definition of an establishment or a limb of the Federal Government or a part of defence organization so as to be equated or be treated at part with the defence forces, as was submitted by Ch. Rasheed Ahmed and to treat the services rendered by it in relation to the servicing, repair and maintenance of the aircraft and equipment of the defence forces as functions and duties relating to the petitioners establishment".
' Whereas, in the case of Pak Telecom Mobile Limited (supra) Apex Court in para 11 of the Judgment while interpreting Section 8 of the Pakistan Telecomunication (Re-Organization) Act, 1996 held as follows:- "The rationale for creating PTA as a regulator independent of the Federal Government by means of an Act of Parliament is to ensure that the 'Government has no power to interfere in the working of PTA in matters of grant and administration of licenses. The Policy directives issued by the Government under Section 8 of the Act, therefore, cannot have binding effect to compel PTA to modify the terms of an existing license".
24. Perusal of Section 5 in the light of pronouncement of the Apex Court, as referred to hereinabove, leaves no doubt in our minds that issuance of directives to the Authority on the matter of policy would not include direct intervention in the affair of the Authority, leave aside licensee specify directions. Though Section 5 of the Ordinance, 2002 empowers the Federal Government to issue directives to the Authority on the matter df policy and also gives binding effect to such policy directives but in our opinion the policy provides a general principle by which the Government could guide the Authority for management of its affairs. The Apex Court in the case of M/s. Gadoon Textile Mills v. WAPDA (1997 SCM R 641) defined word "Policy" as the word "Policy" inter alia carries meaning, as the general principles by which a government is guided in its management of public affairs.
Likewise in the case of Ghiasuddin v. Ghulam Mohyuddin (2005 SCM R 471) the Apex Court while defining word "Policy" has relied on Corpus Juris Secnudum by Francis. J. Ludes, Volume LXXII which define word "Policy" as the word 'policy' is defined as meaning a settled or definite course or method adopted by a Government, institution, body or individual". The main attribute of the policy in our opinion is that the same is across the board and for all who are similarly placed and are governed under the law which declares such policy. In the instant case perusal of the impugned policy advice as contained in letter dated 28.05.2015 would reflect that licensee specify directions (i.e. Stoppage of transmission of BOL Channel through any distribution network for the time being) have been issued which by no stretch of imagination could be termed policy directives, as a result, the impugned policy advice dated 28.05.2015 cannot sustain and is hereby quashed.
25. In the circumstances, the first petition bearing Const. Petition No. D-2867 of 2013 being premature, without cause and therefore, is dismissed. However, in the circumstances, we direct Ministry of Interior to process the security clearance as per practice in vogue and once the issue of security clearance is finalized either way the authority would proceed in accordance with law. The second petition bearing Const. Petition No. D-3224 of 2015 is allowed in the afore-stated terms.