' RASHEED AHMED SOOMRO, J.--- Through instant petition, the petitioners have impugned the show- cause notices dated 21.12.2011,18.11.2011 and 02.01.2012, respectively, issued by respondent No,1, the petitioners have filed the instant petition and claimed the following relief:-
(i) Declare that the First, Second and Third impugned notices issued by the respondent No,) are illegal, void and ab initio;
(ii) Declare that the respondent No, 1 does not have the authority to issue show-cause notices to members of the petitioner No,4 for health related advertisement on the basis of Drugs Act, 1976, or any other drugs related legislation;
(iii) Prohibit the respondents from taking any action on the basis of the impugned notices or otherwise against the petitioners or their members;
(iv) Grant costs for the petition;
(v) Pass such further order as may be just and proper.
2. Learned counsel for the petitioners submits that the advertisements aired by the petitioners Nos.1, 2 and 3 conform to the Code of Conduct for media broadcasters, and the Conduct for advertisement under schedule-A of PEMRA Rules, 2009 and the advertisement was in conformity with laws of the country and that it was not offensive in nature in terms of morality, decency and ethics, the petitioners have not violated any religious, national or cultural norms by airing these advertisements. He contended that the clause (3) of the Code of Conduct for Advertisement cannot apply to the facts of the case as neither the petitioners nor the respondent No,1 has the expertise to determine whether the goods or services advertised are harmful to human health or a claim that an advertisement is misleading. He also contended that the respondent No,1 is acting beyond its jurisdiction and usurping the powers and functions of the Drug Authorities who are responsible for monitoring the sale and advertisement of drugs, and whether such drugs are harmful to human health and the petitioners have neither violated any provision of the Ordinance nor any provision of the Drugs Act, 1976 and the Rules made thereunder, and the petitioners are not responsible for acquiring the NOC for health related advertisement and it is the manufacturer, importer, producer or supplier of the drug or substance who must apply for a NOC to advertise the drug or substance in accordance with Drugs Act, 1976 and 1976 Rules. He further submitted that the penalties for violation of the Drugs Act, 1976 apply to the manufacturer, importer, supplier or producer of the drug or substance, and not to the television channel that airs the advert for a drug or substance and the petitioners cannot be held responsible for airing advertisement without a NOC when the responsibility to obtain this NOC is, solely with the manufacturers or producers of the product that was advertised and the respondent No,1 has acted arbitrary by issuing the impugned notices without following the mutually agreed upon procedure to investigate a matter. He further contended that the impugned notices were issued by the respondent No, 1 without seeking any information from the petitioners and without initiating any investigation into the matter as prescribed by Section 29 of the Ordinance and the impugned notices, in fact, condemn the petitioners unheard as they provide no opportunity of hearing to the petitioners, the impugned notices direct the petitioners to comply with the order and are arbitrary and capricious in nature.
Lastly, he contended that the impugned notices are illegal, mala fide, without jurisdiction, of no legal effect and against the laws, rules and regulations and by issuing the impugned notices and targeting three channels, the respondent No, 1 is acting in an arbitrary and discriminatory manner and the provisions of the Drugs Act and/or licensing rules of the Drugs Act, mentioned in the impugned notices are inapplicable to the facts of the case. In support of his contentions, learned counsel has relied upon the case laws Hamid Mir and another v. Federation of Pakistan and others (PLD 2013 SC 244), AL-Jehad Trust and another v. Federation of Pakistan and others (PLD 2011 SC 811), Chittaranjan Cotton Mills Ltd. v. Staff Union (1971 PLC 499), Rashid Ahmad v. The State (PLD 1972 SC 271), 886 The Royal British Bank v. Turquand (1856) 6 Ellis and Blackburn 327, Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited (2000 SCMR 506), The Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others (PLD 1969 Karachi 474), Muhammad Zubair v. The State (2013 PCr.LJ 745), The State through Advocate General, High Court of Sindh, Karachi v. Lqbal Ahmed Khan (1996 SCMR 767), Messrs Salimco Laboratories and others v. The Drug Inspector, Lahore Division (Industries), Directorate of Health, Lahore (1989 PCr.LJ 566), Shaukat Hayat v. The State (1982 PCr.LJ 48), State through Advocate General, Sindh v. Abdullah Shamim and another (1987 MLD 2160), Abida Rashid v. The Secretary, Government of Sindh (PLD 1995 Karachi 587), Independent Music Group, SMC (Pvt.) Ltd. And another v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and another (PLD 2011 Karachi 494), Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. And others (2009 PTD 1392), Col. (Retd.) S. Maqbul Illahi through Attorney v.
Pakistan Defence Officers Housing Authority (2009 YLR 282), The Murree Brewery Co. Ltd. v. Pakistan through The Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 SC 279), Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others (PLD 1961 SC 119), Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and The Federation of Pakistan (PLD 1959 SC 177), Messrs AL-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) and A.R. Khan and Sons (Pvt.) Ltd. Through Authorized Officer and 3 others v. Federation of Pakistan (2010 CLD 1648).
3. Conversely, learned counsel for respondent No,1 has opposed the above submissions of learned counsel for the petitioners and has raised an objection as to maintainability of instant petition, which has been filed prematurely on mere issuance of show-cause notices issued by the respondent under the PEMRA Rules, 2009 for alleged violation of Code of Conduct for Advertisement. It has been contended that the petitioners have approached this Court with unclean hands by raising disputed facts under Article 199 of the Constitution of Pakistan, hence, are not entitled to any discretionary relief, whereas, the petitioners have admittedly aired the health related advertisement, however, without obtaining prior NOC under section 24 of the Drugs Act, 1976 and Rule 31 of Drugs (Licensing, Registering and Advertising) Rules, 1976 read with clauses (1) and (3) of the Code of Conduct provided in PEMRA Rules, 2009. He contended that the petitioners have concealed material facts/documents from this Court. Learned counsel for the respondent contended that the Authority has also publicized in the National Dailies, advising its licensees not to air any health related advertisement without obtaining prior NOC, whereas, the petitioners have neither appended the recording of the advertisement of the product in question, nor has attached the transcript of the disputed Advertisement for verification,hence according to learned counsel, the petition in its present form is not maintainable. It has been further contended that the respondent Authority has issued show-cause notices which have been impugned in the instant petition, final decision on the said show-cause notices is yet to follow, after fulfillment of requisite requirements of the law, hence the petition is pre-mature and is liable to be dismissed. He contended that if Ate petitioners are aggrieved from any decision/order of the Authority, the appropriate remedy has been provided by way of filing an appeal before this Court under section 30-A of PEMRA Ordinance, hence petitioners have not exhausted the remedy provided under the special law therefore the present proceedings are liable to be dismissed in limine. More particularly, according to learned counsel for PEMRA, the petition is not maintainable in its present form as factual controversies have been raised by the petitioner, which cannot be gone through in exercise of extraordinary constitutional jurisdiction. Lastly, the learned counsel has contended that instant petition has no merits, hence liable to be dismissed with cost. In support of his contentions, learned counsel for respondent No,1 has placed reliance in the case of Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 SC 692), Messrs Maritime Agencies (Pvt.) Ltd. Through Company Secretary v. Assistant Commissioner- 11 of SRB and 2 others (2015 PTD 160), Pakistan Broadcasters Association and 10 others v. Pakistan Electronic Media Regulatory Authority through Chairman and another (PLD 2014 Sindh 630) and Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44).
4. Learned Standing Counsel has adopted the arguments advanced by the learned counsel for respondent No,1, and has also raised an objection as to maintainability of instant petition and submitted that instant petition is not maintainable as no adverse or any final order has been passed against the petitioners, therefore, the petitioners are not aggrieved persons in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It has been further contended that in order to avoid the response to show-cause notices, issued by respondent No,1 to the petitioners for violating the legal requirements, the petitioners have filed instant petition, therefore, instant petition may be dismissed in limine.
5. We have heard the learned counsel for the parties and perused the record as well as the impugned show-chase notices issued by the respondent No, 1 in the instant petition. It is an admitted position that through instant petition, the petitioners have impugned mere show-cause notices issued by the respondent No,1, whereas, no final order whatsoever has been passed so far in the instant case, nor any demand against the petitioners has been raised by the respondent No,
1. In the instant case, show-cause notices have been issued by the respondent No,1, who admittedly has the jurisdiction over the case of the petitioners, wherein, certain queries have been made, and the petitioners have been provided an opportunity to respond to such show-cause notices. The petitioners are at liberty to file a detailed reply and to raise all such legal objections, as raised through instant petition, which shall be decided by the respondent strictly in accordance with law, after providing complete opportunity of being heard to the petitioners. It is obligatory upon petitioners that whenever an action is taken by the Authority, they ought to first approach the Authority and explain their position on the issue. Since in the instant case, no final adjudication, on the proposed show-cause notices has been made so far by the respondent and merely show- cause notices have been issued, therefore, we are of the view that instant petition is pre-mature, whereas, no cause of action has accrued to the petitioners which may justify the filing of instant petition.
6. In the case of Messrs Pakistan Mobile Communications Ltd. v. Sindh Revenue Board through Chairman, Karachi and 2 others, (2014 PTD 2048) division bench of this Court while examining the issue of maintainability of a Constitution Petition on mere issuance of a show-cause notice, has been pleased to hold as under:- "The petitioners have expressed their grievance only to the extent of proposed treatment by the respondents to the claim of input adjustment by the petitioners in terms of Rule 22(1) of Sindh Sales Tax Rules, 2011, whereas, the respondents have not finally decided the legal issue nor passed any final order in this regard, hence the petitioners are still at liberty to make their submissions, which shall be decided by the respondents strictly in accordance with law and applying the relevant Rules. Since the impugned Show-Cause Notices do not suffer from any jurisdictional error nor the petitioners have been able to point out any patent illegality in the impugned Show-Cause Notices, whereby, an opportunity of being heard has been provided to the petitioners, therefore, the petitions filed by the petitioners appear to be pre-mature and tantamount to preempting the decision on the subject controversy.. In the case of Messrs Maritime Agencies (Private) Ltd. v. The Assistant Commissioner-II of Sindh Revenue .Board and others (C.P.No,D-769/2014), this Bench, while dismissing the constitutional petition filed under similar circumstance on mere issuance of Show-Cause Notice, has held as under:- "6. The tendency to impugn the Show-Cause Notices issued by the Public Functionaries under taxing statutes, before this Court under Article 199 of the Constitution, and to casually bye-pass the remedy as may be provided under a Special Statute is to be discouraged as it tends to render the statutory forums as nugatory. Moreover, if the proceedings initiated under Special Taxing Statutes do not suffer from jurisdictional error or gross illegality the same are required to be responded and resolved before the authority and the forums, provided under the Statute for such purpose, whereas, any departure from such legal procedure will amount to frustrate the proceedings which may be initiated by the public functionaries under the law and will further pre- empt the decision on merits by the authorities and the forums which may be provided under the statute for such purpose. In the instant case a Show-Cause Notice has been issued by the respondent who admittedly has the jurisdiction over the case of the petitioner, wherein, certain queries have been made and the petitioner has been provided an opportunity to respond to such Show-Cause. Petitioner is at liberty to file detailed reply and to raise all such legal objection, as raised through instant petition, which shall be decided by the respondent strictly in accordance with law, after providing complete opportunity of being heard to the petitioner with particular reference to the provisions of Section 3 of Sindh Sales Tax on Services Act, 2011, read with Rule 32 of the Sindh Sales Tax on Services Rules, 2011 as argued by the learned counsel for the petitioner before us. If the petitioner is aggrieved by any adverse decision by .The respondent in this regard, a remedy as provided under the law in terms of Section 57 of Sindh Sales Tax on Services Act, 2011 can be availed by filing an appeal before the Commissioner (Appeals) Sindh Revenue Board.
Similarly an appeal is also provided against the order of CIT (Appeals) in terms of Section 61 before the Appellate Tribunal, whereas, after the order of Appellate Tribunal, a .Reference can also be filed before this Court in terms of Section 63 of the Sindh Sales Tax on Services Act, 2011 in respect of questions of law which may arise from the order of the Tribunal. Since in the instant case, no final adjudication on the proposed Show-Cause Notice has been made so far by the respondent and merely a Show-Cause Notice has been issued, therefore, we are of the view that instant petition is pre-mature, whereas no Cause of action has .Accrued to the petitioner which may justify the filing of instant petition."
7. In the case of Messrs Roche Pakistan Ltd. v. Deputy Commissioner of Income Tax and others, reported in 2001 PTD 3090 and M/s Sitara Chemical Industries Ltd. And another v. Deputy Commissioner of Income-Tax reported in 2003 PTD 1285, the Division Benches of this Court after having examined the case law of the superior Courts on the issue, of maintainability of Constitution petition, were pleased to dismiss the Constitution Petitions, which were filed on mere issuance of show-cause notices. It will be advantageous to reproduce the relevant findings of the Court in both the cases are'hereunder:
(i) Roche Pakistan Ltd. v. Deputy Commissioner of Income-Tax and others 2001 PTD 3090.
"18. In view of the above discussion, we are of the opinion that the Impugned notice under section 62 of the Ordinance issued by respondent No,1 to Roche is strictly in accordance with law and was not without jurisdiction and/or mala fide. Consequently, it could not be assailed by filing a Constitutional petition under Article 199 of the Constitution. Moreover, as adequate alternate remedy by way of appeal before the Commissioner of Income tax, a second appeal before the Income-tax Appellate Tribunal and thereafter a reference to the High Court under section 136 of the Ordinance are available to the petitioner, this petition is not maintainable.
19. It would not be out of place to mention here that after filing of this petition, the petitioner submitted his further reply in relation to the question of applicability of section 79 which was withheld by it in the earlier reply to the notice. The conduct of the petitioner in withholding its response to the applicability of section 79 in its reply to the Notice under section 62, filing the present Constitutional petition and thereafter submitting its reply on the question in issue in order to justify the maintainability of the Constitutional petition cannot validate the proceedings which may otherwise be not maintainable. Respondent No,1 would now consider the reply filed by Roche, apply his mind and make the assessment in accordance with law. If Roche is aggrieved by the order passed by respondent No,1 it would be open to it to resort to the statutory remedies available under the law."
(ii) Sitara Chemical Industries Ltd. v. Deputy Commissioner of Income-tax 2003 PTD 1285.
"The purpose of citing the above cases is to show that the Assessing Officer have been exercising jurisdiction to consider the tax related issues arising out of amalgamation of the companies and consequently, the impugned show-cause notice issued by the Deputy Commissioner of Income- tax is within his competence and jurisdiction to which no exception can be taken. The petition is pre-mature and without any substance which stands dismissed accordingly."
7. In view of hereinabove facts and circumstances of the case, we are of the opinion that instant petition is misconceived in law and facts, which was accordingly dismissed in limine vide short order dated 08.11.2016, and these are the reasons of short order. However, while dismissing instant petition in above terms, we may observe that the respondents shall provide complete opportunity of being heard to the petitioners, who shall submit response to impugned show-cause notice(s), whereafter, respondent shall pass an appropriate order strictly in accordance with law. It is further clarified that respondent shall not draw any adverse inference on the merits of the case in view of dismissal of instant petition on the ground of maintainability, whereas, the legal controversy may be decided in accordance with law after considering the objections as may be raised by the petitioners in this regard.