' SAJJAD ALI SHAH, C J.---The Petitioner through instant petition has impugned the Notification dated 27.04.2016 issued by the Ministry of Information. Broadcasting and National Heritage Government of Pakistan whereby Urdu feature film "Maalik" (hereinafter referred to as "subject film") in respect whereof a censor certificate was already granted was declared to be uncertified resultantly its exhibition throughout Pakistan was banned.
' Mr. Farogh Naseem, learned counsel appearing for the Petitioner contended that the Government of Sindh after examining the "subject film" on 05.04.2016 issued provisional certificate by directing two excisions viz. "1. During the oath ceremony of C.M., the word "C.M. Wherever occurred and also shown on T.V.
Screen deleted.
2. The words "Provincial Government and Interior Sindh wherever occurred in the movie deleted".
' Likewise Central Censor Board and Punjab Censor Board Lahore also issued certificate for exhibiting the subject film on 06.04.2016 and 07.04.2016 respectively for a period of 25 years and consequently the film was released and exhibited in various cinema houses throughout Pakistan.
Per counsel while the film was being exhibited in various cinema houses throughout the country the Government of Sindh vide its Notification dated 26.04.2016 on account of non-compliance of the aforementioned two conditions subject to which provisional certificate was issued, withdrew its provisional certificate and suspended the exhibition of the film for a period of three months throughout the province of Sindh. However, this notification of 26.04.2016 was withdrawn by the Government of Sindh through another notification of the same date and consequently there was no restraint on exhibition of the "subject film" throughout the country and was exhibited accordingly.
' It is contended that while the subject film after fulfilling all the codal formalities was being exhibited throughout the country that all of sudden the Federal Government vide its Notification No, 6 (M)/2016-CB(FS) dated 27.04.2016 in purported exercise of its power under Section 9(2)(a) of the Motion Picture Ordinance. 1979, (hereinafter referred to as "Ordinance 1979") declared the subject film as uncertified in the whole of Pakistan and therefore, its exhibition was banned. Mr. Farogh after referring to Articles 141 to 144 of the Constitution of Islamic Republic of Pakistan, 1973, has taken us to pre 18th Amendment Entry No,41 of the concurrent list in the Fourth Schedule in order to contend that before 18th amendment the legislation in respect of production, censorship and exhibition of cinematograph films vest with the Federation which was being regulated through Motion Pictures Ordinance, 1979. However, after 18th amendment concurrent list was abolished and consequently the legislative backing in respect of Motion Pictures was done away and the subject of production, censorship and exhibition of cinematograph films came within the sole domain of the provinces.
Mr. Farogh while further referring to Sub-Articles (6) and (8) of the Article 270-AA pleaded that after the omission of the concurrent legislative list through 18th amendment all laws with respect to any of the matter enumerated in the concurrent list as per Sub-Article (6) were to continue and remain in force until altered, repealed or amended by the competent authority, whereas, sub-article (8) provided a time frame for the continuation of such laws by stating that after omission of the concurrent legislative list the process of devolution of the matter mentioned in the said list to the province shall be completed by the 30.06.2011 and since the province of Sindh as well as province of Punjab have made their legislation through Sindh Motion Pictures Act, 2011, (Sindh Act IV of 2012) and Punjab Motion Picture Amendment Act 2012 [X of 2013], therefore, the Motion Pictures Ordinance, 1979 at least to the extent of two provinces cannot be made applicable. It was contended that though Khyber Pakhtunkhwa and Balochistan have not legislated on this subject but keeping in view the cutoff date of 30.06.2011 given in Sub-Article (8) of Article 270-AA the Ordinance 1979 could not be applied even to these provinces. Mr. Farogh in support of his contention has placed reliance on the judgment reported in the case of Air League of PIAC Employees v. Federation of Pakistan (2011 SCMR 1254). In the last it was contended that even otherwise the impugned notification is mala fide against the Principles of natural justice as the so- called complaints are concocted and manipulated at the instance of certain influential in the power corridors who feel that the exhibition of the subject film would exposed them.
' On the other hand learned Additional Attorney General referred to the Proviso of subsection (2) (a) of Section 9 of the Ordinance 1979, which provides 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 Mates, public order, decency or morality, or to prevent the commission of or incitement to, an offence," to contend that the revisional powers of the Federal Government under Section 9 of the Ordinance, 1979 notwithstanding sub-articles (6) and (8) of Article 270-AA and the omission of concurrent list remain intact and a film for which a censorship certificate has been granted by the Federal Government or the Provinces can be uncertified if the Federal Government is satisfied that such un-certification is on account of any of the factors as detailed in the proviso to Section 9(2)
(a) of the Ordinance 1979 and therefore, the impugned notification has been validly issued.
Learned Additional Attorney General has further referred to Entry No,58 of the Federal Legislative List which pertains to, "matters which under the constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation" to contend that the factor detailed in proviso to Section 9(2)(a) of the Ordinance 1979 relates to the integrity and security of Federation and therefore, the legislation i,e. Ordinance 1979 notwithstanding omission of concurrent list would to the extent of section 9, i,e. Revisional Power of the Federal Government would remain intact and would be applicable throughout the country. Learned Additional Attorney General states that un- certification of the film was on account of factors, as detailed in the proviso attached to Section 9(2)(a) of the Ordinance, 1979 and therefore, relates to the Federation. Reliance has been placed on the judgment of this Court in the case of KESC v. NIRC (PLD 2014 Sindh 553).
' As to sub-article (6) of Article 270-AA which provides that notwithstanding omission of the concurrent list by the Constitution 18th Amendment Act, 2010, all laws with respect to any of the matter enumerated in the list shall continue to remain in force until altered, repealed or amended by the competent authority, Additional Attorney General contends that competent authority refers to the Federal Legislator and not the Provincial Legislator and since the Federal Government has not altered or repealed the Ordinance 1979, therefore, it still hold the field. It was lastly contended that various complaints were received by the Federal Government that the film is against the security and national integrity of the Pakistan and therefore, its certification was withdrawn.
' In response Mr. Farogh Neseem while referring to Article 142(c) has contended that the term "Competent Authority" used in Article 270-AA(6) obviously means Provincial Legislature and not the Federal Legislature, as Article 142(c) provides that the Parliament shall not have power to make laws with respect to any matter not enumerated in the Federal Legislative List, and of course production, censorship and exhibition of cinematograph film has not been enumerated in anywhere in the Federal Legislative List, therefore, the question of amending, altering or repealing the Ordinance 1979 does not arise. Mr. Farogh further while elaborating his earlier submission that the de-certification is against the principle of natural justice, mala fide and motivated, contended that under Section 9(1) Of the Ordinance 1979 an order can be passed without notice, whereas, order under Section 9(2) of the Ordinance 1979 cannot be passed unless notice is given and in the instant case since no notice was given, therefore, the order is bad. Mr. Farogh Nasim to negate the contention of the learned Additional Attorney General that the subject film was against the integrity and security of Federation, contended that the Central Board of Film Censors consists and comprises of a Chairman and five Members out of which two are from Armed Forces, one represents ISPR and the other D.G. ISI who after examining the contents of the subject film had issued exhibition certificate under Ordinance 1979 and while referring to the decertification of the letter dated .29.04.2016 of the Central Board of Film Censors contended that the decertification was by the Chairman alone and not by the Board, therefore, decertification itself is bad as the powers under Section 9(2) of the Ordinance, 1979 are to be exercised by the Board and not by the Chairman alone. Mr. Farogh further referred to various press clippings criticizing the ban on the subject film, he also referred to magazine "HILAL" of Pakistan Armed Forces to show that the Armed Forces had appreciated the subject movie and therefore, to term that it was against the integrity and security of the country was totally false. Per counsel the complaints were manipulated in order to justify the illegal decertification of the subject film at the behest of people in power. In support of his contentions counsel placed reliance on the cases reported in Pakistan Tobacco Co. Ltd., v.
Karachi Municipal Corporation (PLD 1967 Supreme Court 241). Messrs Baho Film Corporation v.
Islamic Republic of Pakistan (PLD 1981 Lahore 295), Messrs Everday Pictures Ltd. v. Government of Pakistan (PLD 1979 Karachi 155), Union of India v. K.M. Shankarappa (AIR 2000 Supreme Court 3678), The Central Board of Film Certification v. Yadavalaya Films [2007 (1) CTC 1], Parkash Jha Productions v. Union of India [2012 (3) UIC 2029] and Lakshmi Ganesh Films v. Government of A.P.
And others [2006 (4) ALD 374].
' We have heard the learned counsel for the Petitioner and Additional Attorney General, perused the record and case-law cited at Bar.
Examining the first contention of Mr. Farogh Naseem that after Eighteenth Amendment Motion Picture Ordinance, 1979 has neither any legislative backing nor has application to the Provinces. It appears that there is no dispute that Motion Picture Ordinance, 1979 is a Federal Statute and was legislated in consequent to the Constitutional mandate available vide Entry No,41 of the Concurrent Legislative List provided in the Fourth Schedule empowering the Federal Legislature to legislate law in respect of production, censorship and exhibition of cinematography film and there is also no dispute that through Eighteenth Amendment all entries right from 1 to 47 of the Concurrent Legislative List in the Fourth Schedule were omitted and the effect which such omission could have on the laws promulgated in consequent to the entries available in the Concurrent List was taken care of by substituting para (6) of Article 270-AA by providing:- "(6) Notwithstanding omission, of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered repealed or amended by the competent authority."
The bare reading of afore-reproduced para (6) reflects that after 18th amendment the sustainability of the laws made by the Federal Legislature on the strength and in consequent to the Concurrent Legislative List depends on the Competent Authority" as no sooner the Competent Authority alters, repeals or amends such laws, they lose their legislative backing. Now the question arises as to whether Provincial Legislature would be the Competent Authority or the Federal Legislature, as contended by Mr. Salman Talibuddin. The answer to this proposition is contained, as rightly pointed out by Mr. Farogh Naseem in paragraph (c) of Article 142 which reads as follows:--
142. Subject matter of Federal and Provincial laws, subject to the Constitution-
(b) .........
"(c) subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List "
Perusal of paragraph (c) of Article 142 after 18th amendment reflects that it restricts the power of Majlis-e-Shoora (Parliament) to make laws with respect to any matter not enumerated in the Federal Legislative List and admittedly subject of production, censorship, exhibition of cinematography film is not available in the Federal Legislative List, therefore, the Competent Authority referred in paragraph-6 of Article 270AA could be none other than Provincial Legislature.
' In this backdrop of Post Eighteenth Amendment, "Sindh Motion Picture Ordinance, 2011 was promulgated on 28.10.2011 whereafater it was passed by the Provincial Assembly on 02.01.2012 as "The Sindh Motion Picture Act, 2011" (Sindh Act No, IV of 2012) repealing the provisions of Motion Pictures Ordinance, 1979 in its application to the Province of Sindh. Interestingly in the meanwhile Government of Pakistan Ministry of Culture vide its Notification No, 10-5/2010-C&C dated 1st April, 2011 transferred the Central Board of Film Censors, Karachi Centre, to Government of Sindh vide its Notification dated 2nd April, 2011 took over the Central Board of Film Censors, Karachi. The gist of both notifications is reproduced as hereunder:-- {{TABLE}} No,10-5/2010-C&C Government of Pakistan Ministry of. Culture Islamabad the 1st April, 2011 NOTIFICATION On reorganization of Federal Secretariat in pursuance of Constitution (Eighteenth Amendment) Act, 2010 (Act No, ,X of 2010) the Central Board of Film Censors, Karachi under the ministry of Culture is transferred to the Department of Culture and Tourism, Government of Sindh, Karachi with immediate effect. Sd/- (Kanwal Javed)
Deputy Secretary (Admn/Coord)
Ph:9201202 Fax:9201093 GOVERNMENT OF SINDH CULTURE DEPARTMENT NOTIFICATION No, SO (G)/CD/Devolution (18th Amendment)/2010-11:- In pursuance of Constitution (Eighteenth Amendment) Act, 2010 (Act No,X of 2010], Ministry of Culture, Government of Pakistan's Notification No, 10-5-2010- C&C, dated 01.04.2011, has transferred / handed over Central Board of Film Censors, Karachi, to the Culture Department, Government of Sindh, Karachi,
2. On transfer, Culture Department, Government of Sindh, has taken over the administrative control and superintendence of Central Board of Film Censors, Karachi, along with its staff membeRs, ABDUL AZIZ UQAILI Secretary to Government of Sindh {{TABLE}} Now the question arises once the Provincial legislature at least in Sindh and Punjab after omission of the concurrent list have legislated on the subject of "production, censorship and exhibition of cinematography film" to which no parallel entry is available in the Federal Legislative List, still the provisions of Ordinance 1979 could be applied and/or extended to the said provinces. The 18th Amendment and the omission of the concurrent list of course was with the view and intent to grant Autonomy to the Provinces, therefore, to argue that notwithstanding the repeal of concurrent legislative list and legislation by the respective Provinces on the subject which are not enumerated in the Federal Legislative List, the Federal Legislation, which was made in consequent to the omitted concurrent legislative list still holds the field, would not be only against the concept and purposes of the 18th Amendment and contrary to the clause (6) of the Article 270-AA read in conjunction with Article 142 of the Constitution, but would further chock the Provincial Autonomy.
' Mr. Salman Talihuddin Addl. Attorney General, in this very context has argued that proviso to subsection 2(a) of Section 9 of Ordinance 1979 which empowers the Federal Government to uncertify a film if it is satisfied that it is necessary to do so in the interest of 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, notwithstanding the omission of concurrent list still could sustain on the basis of Entry No,58 of the Federal legislative List which pertains to "matters which under the constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation". Mr.Talibuddin has fairly conceded that the subject matter i,e. Production, censorship and exhibition of cinema- tography film of course are not within the legislative competence of Majlis-e-Shoora (Parliament) under the Constitution but since the matter which "relates to the Federation" also can sustain on the basis of Entry No,58 of the Federal Legislative List, therefore, the Ordinance 1979 could still only to the extent of stated proviso sustain and to substantiate his submission reliance was placed on the case of KESC and others (supra). However, our understanding of Entry No,58 of the Federal Legislative List is that Majlis-e-Shoora (Parliament) is competent to legislate in respect of all matters detailed in Federal Legislative List, which are under its legislative competence under the Constitution and in cases where subject matter is not provided in the Federal Legislative List then it can legislate only when the matter in respect of which legislation is to be made "relates to Federation".
To say that "production, censorship and exhibition of cinematography film" is a matter which "relates to Federation" would negate the very concept of 18th amendment whereby the concurrent list was omitted and the power of Majlis-e-Shoora (Parliament) to legislate in respect of the matters pertaining to "production, censorship and exhibition of cinematography film" was taken away and the subject was left for legislation by the Provincial Assemblies. This argument if accepted would further violate the concept of Provincial autonomy as the Provinces have almost adopted the contents of the Motion Picture Ordinance, 1979 by renaming it as. Sindh Motion Pictures Act, 2011, (Sindh Act IV of 2012) or the Punjab Motion Picture Amendment Act, 2012 [X of 2013] respectively. It is also important to note that the Provinces have also retained the powers provided under the proviso available to subsection 2(a) of Section 9 of the Ordinance 1979 to uncertify a film or class of films in the Province if the Provincial Government is satisfied that it is necessary to do so in the interest of 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. Therefore, to hold that notwithstanding the fact that such power is available with the Provinces still the Federal legislation to the stated extent could sustain on the basis of Entry No,58 of the Federal Legislative List and would apply to the Provinces would again not only violate the purpose and intent of 18th amendment and the concept of Provincial Autonomy but would further amount to showing lack of confidence on the Provinces.
' As to the submission of Mr. Salman Talibuddin that a Full Bench of this Court in the case of KESC (supra) has sustained a legislation on the basis of Entry No,58 of the Federal Legislative List by holding that the subject "relates to federation" covers the legislation in respect of Industrial Relation Act, 2012, notwithstanding, omission of concurrent list where power to legislate in respect of Trade Unions, Industrial and Labor dispute was available. With due respect we for various reasons could not persuade ourselves to agree to this submission in the manner it is present before us, firstly, in the case of KESC (ibid) Industrial Relation Act, 2012 the subject legislation had come into existence after the 18th amendment, therefore, the consequences provided in para-6 of Article 270-AA were inapplicable, and secondly, the Court had taken a view that the Provincial legislation could not cater for industrial and commercial establishment that operate at national or trans-provincial level and therefore, it was not only necessary but a matter relating to Federation, thirdly, that the Industrial and Commercial establishments, which operate at national and trans-provincial level did not fall within the purview of Provincial legislation, therefore, upheld the validity of Industrial Relation Act of 2012 on the basis of Entry No,58 available in the Federal Legislative List which provided for legislation in respect of "matters which under the constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation". Relevant portion of the Judgment reads as follows:- "17. In the situation like the present one, Entry No,58 of Part I of the Federal Legislative List, in our view, can be read with considerable advantage to justify legislation of Industrial Relations Act, 2012 even though the subjects of labour welfare and unions are not specifically enumerated in the Federal legislative List Entry No,58 of Part I of the Federal Legislative List of the Constitution reads as follows:-
58. Matters which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation. -
18. The contents of Entry 58 can be divided into two parts. In the first part it is stated "Matters which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament)" and in the second part it is stated "or relate to the Federation". The words of the second part of Entry 58 "or relate to the Federation" have their own independent significance. The import of the second part of Entry 58 is that apart from any matter that falls within the legislative competence of Parliament, there can also be a matter which may relate to the Federation and therefore the Parliament may decide to legislate on such matter as well. Thus the second part of Entry 58 empowers the Parliament to legislate on a matter, which though may not be specifically enumerated in any Entry of the Federal Legislative List but in some way, the matter may relate to the Federation. When legislation is required to legitimize and regulate the trade union activities in trans provincial establishments, it can be said that such a matter relates to the Federation as obviously, as discussed above, the Provincial legislature can't legislate on a subject which in its application has to transcend the provincial boundaries in view of the bar contained in Article 141 of the Constitution. To deal with such a matter, the Federal legislature on the strength of Entry No,58 of Part 1 of the Federal Legislative List, as of necessity, can step in to legislate in order to preserve and regulate a right that not only in its exercise transcends provincial boundaries but is of a nature which is also guaranteed under Article 17 of the Constitution. If the Federal Legislature does not step in then such a right cannot he exercised at national or trans-provincial level. Here is the occasion to take aid of the worlds "relate to the Federation ' as contained in Entry No,58 of Part 1 of the Federal Legislative List which is to be read with the spirit of the proviso to Article 137 of the Constitution as this proviso even after the abolition of the Concurrent Legislative List under the Eighteenth Amendment envisages that there can be an area of activity where the Federal and Provincial legislature may have concurrent jurisdiction.
19. What is best for the people is to be left to the legislature as it is the members of the legislature that are entrusted with the function to understand the needs of the people who have chosen them. Unless there is brazen violation of any Constitutional provision, a Statute cannot be declared unconstitutional. We may clarify here that resort to Entry No,58 of Part I of the Federal Legislative List is being had only to deal with an extraordinary situation i,e. When a matter is taken subject- wise, it falls within the legislative competence of the province but when it comes to its application its needs to travel beyond the territorial boundaries of the province. This makes it a Federal subject to deal with and the only possible mode that is left to deal with such a peculiar situation is to invoke the provisions of Entry No,58 otherwise the exercise of the right guaranteed under Article 17 of the Constitution would stand curtailed in the Industrial and commercial establishments that operate at national or trans-provincial level" (Underlined by us).
We find ourselves not only bound but in total agreement with the principle laid in the referred judgment and hold that the Federal Legislation i,e. Ordinance 1979 could very well sustain on the basis of Entry No,58 but only to the extent of Federal Capital where the provincial law has no application. In these circumstances, since Province of Sindh and Punjab have legislated on the subject of production, censorship and exhibition of cinematography film a subject not available in Federal Legislative List, by further repealing the Federal Legislation on the subject which was made on the strength of Entry No,41 available in the Concurrent List, therefore, these Provinces cannot be subjected to the Federal Law i,e. Motion Picture Ordinance, 1979 which stands repealed in its application to the extent of these Provinces and is to be read down accordingly.
' Coming to the second portion of controversy that notwithstanding the repeal of Ordinance 1979 to the extent of Province of Sindh and Punjab the de-certification itself is incompetent, mala fide and against the principle of natural justice. The record reflects that on 26.04.2016, the Chairman, Central Board of Film Censors sought decertification of the subject film by placing following Summary before the Secretary, Ministry of Information. Broadcasting and National Heritage, Islamabad. The Summary as well as the order of the Secretary are reproduced below:- "GOVERNMENT OF PAKISTAN CENTRAL BOARD OF FILM CENSORS ' Subject: COMPLAINTS AGAINST LOCAL FILM "MAALIK"(Urdu)
13- The application for certification of local film titled "MAALIK' (Feature - Urdu - DCP) was submitted by Messrs Footprint (Pvt.) Ltd., Karachi on 30th March, 2016. The film was scheduled for examination on 5th April 2016 at 6 p.m. At Cinepax Cinema, Rawalpindi. The following members of the Panel of CBFC attended the meeting:-- .
1. Col. Salahuddin Ayubi (ISPR),
2. Lt.. Col. Faisal Farooq (ISI),
3. MRs, Safina Syma Khar (Private Member).
4. Jalal Hyder Khan (Private Member) and
5. Mr. Zareef Raja (Private Member)
14- The panel unanimously found the subject film suitable for public exhibition without any excision (Annex-A)
15- On the recommendation of the Panel, Censor Certificate bearing No, 54/M-1/2016 dated 6th April, 2015 had been issued in favour of the said film accordingly (Annex-B).
16- It is brought to the kind attention of the Ministry of Information, Broadcasting and National Heritage that a number of written complaints and phone calls lodged / made by the citizens have been received by the CBFC regarding the controversial depiction of politicians, incendiary theme and inciting dialogues in the subject film which hurt the sentiments of the complainants and left a damaging imprint on the minds of the audience. (Annex-C)
17- Therefore, it is proposed that the following necessary action may kindly be initiated by the Ministry of Information, Broadcasting and National Heritage at this stage as per Section 9 of the Motion Pictures Ordinance, 1979 and the rules made thereunder (Annex-D). a) The Censor Certificate bearing No: 54/M-1/2016 dated 6th April, 2016 which was granted to M/s. Footprint (Pvt.) Ltd. Karachi for the film 'MAALIK", on the recommendations of the members of the Board, may kindly be revoked in the prescribed manner by the M/o Information, Broadcasting and National Heritage declaring the subject movie as uncertified film by invoking Section 9(2) a of the Motion Pictures Ordinance, 1979. Draft Notification is also enclosed for perusal and approval (Annex-E).
18. Submitted for kind perusal, approval and necessary action please.
(Sd.)
Mobashir Hassan)
Chairman Secretary Ministry of Information Broadcasting and National Heritage Islamabad CBFC, u.o. No,6 (M)/2016-CB (FS) dated 26th April, 2016 19- Approved to decertify. Sd/-27.04.2016 ' In consequent to such directions of the Secretary Ministry of Information, Broadcasting and National Heritage (Information and Broadcasting Division) following Notification was issued on 27.04.2016:- "GOVERNMENT OF PAKISTAN MINISTRY OF INFORMATION, BROADCASTING AND NATIONAL HERITAGE (INFORMATION AND BROADCASTING DIVISION)
Islamabad, the 27th April, 2016 NOTIFICATION ' No, 6(M)/2016-CB(FS): In exercise of the powers conferred by Section 9 of the. Motion Pictures Ordinance, 1979, the Federal ' Government is pleased to declare Urdu Feature Film "MAALIK" in respect of which a Censor Certificate No,54/M1/2016 has earlier been granted, as uncertified film in the whole of Pakistan with immediate effect.
(Sd.)
(Muhammad Rafiq)
Deputy Secretary to Government of Pakistan ' In consequent to the Notification dated 27.04.2016 the Chairman, Central Board of Film Censors, Ministry of Information, Broadcasting and National Heritage on 29.04.2016 issued letter of decertification in respect of the subject film and distributed copies of such letter amongst all its live membeRs, The Notification dated 29.04.2016 is reproduced hereinbelow:-- "F. No, 6 (M)/2016-CB (FS)
GOVERNMENT OF PAKISTAN CENTRAL BOARD OF FILM CENSORS MINISTRY OF INFORMATION, BROADCASTING AND NATIONAL HERITAGE Dated: 29th April, 2016 ' Subject: DECERTIFICATION OF LOCAL FILM "MAALIK"
' I am directed to bring to your kind notice that the Federal Government (Ministry of Information, Broadcasting and National Heritage) vide Notification No, 6 (M)/2016-CB (FS) dated 27th April, 2016 has decertified the local film 'MAALIK" after receipt of number of complaints against the movie from across the country.
2. The subject film was examined by a panel of CBFC on 5th April, 2016 and recommended to pass the filth without excision. The film was released countrywide on 18th April, 2016.
3. After days of the release of the subject film, a plethora of public complaints started pouring in to the CBFC from across the country. Complainants expressed their extreme reaction against the movie through phone calls /letters/personal visits to the CBFC.
4. After examination of all the complaints by CBFC, it became know that public reaction against the movie was on the following scenes/theme: i. The movie has presented Pakistan as a lawless state where the state institution are shown as crippled, inefficient, incapacitated hence openly inciting the common citizen to take law in his / her own hands. Ii. The movie has disparagingly targeted some of the ethnic and linguistic communities living in Pakistan. iii. The movie has projected a celebrated and heroic death of a former Afghan Jihad Mujahid which is against the spirit of the National Action Plan being successfully implemented jointly by the political and the military leadership of the country. Iv. The movie has also portrayed the role of politicians as morally and financially corrupt as a whole. v. The police force is characterized in the movie as always working in the interest of the politicians discounting its duties. The film has branded the entire police force of the country as inept and corrupt thus belittling the sacrifices made by the police as a front defense line in the war against terrorism.. vi. Movie has hurt the sentiments of Pashtun community by showing the rape of .a Pashtun girl by a seem4ngly Sindhi politician.
' You, as an esteemed member of CBFC and being a part of Panel of CBFC, while censoring and passing the subject film without excisions, have ignored all the areas as mentioned above.
' It is, therefore, requested to strictly follow Guidelines/Code for the Censorship of Films provided by the Federal Government during censorship of films in order to avert such incidents to recur in future and to avoid embarrassing retreat for the government to decertify a certified film.
(Mobashir Hasan)
Chairman ' The Respondents in support of their action have placed on record few letters and a list of telephone numbers allegedly received by them from general public complaining that the exhibition of the film has hurt their sentiments etc. However, nothing has been placed on record from social, electronic or print media to support that the subject film has portrayed anything against the integrity, security or defence of Pakistan or something which would affect friendly relations with foreign States, public order, decency or morality, or would incite commission of any offence.
' On the other band, Petitioner has placed material from social, print and electronic media wherein decertification of the subject film was - criticized by commenting that banning subject film would not blind people to the pervasive corruption in the ruling elite. The ban is undemocratic and irrational.
' An article of Omair Alavi published in the April issue of "Hilal", the Pakistan Armed Forces Magazine, has also been produced, wherein movie has been appreciated in the following words:- "What Makes Maalik Different?
Maalik is about Pakistan; about the common people who nobody cares about, about the countless soldiers who have given their life defending their motherland and finally those politicians who use power as if it was their birth right. In the film there are multiple plots that will keep the audience engaged unlike the one-dimensional narrative that our films have been churning out since 'revival'. It is different in every-aspect as the comedy here is subtle not slapstick, the action is close to reality than the dhishum dhishum one and the message is clear take ownership of your country if you want to move ahead. Watching Maalik is guaranteed to make you feel better about your motherland and do something for its return, rather than expect it to gift you something for being one of the many sons of the soil.
' Hard Hitting Dialogues Ask any film enthusiast and they will say that halving bombastic and powerful dialogues guarantee that the film will go on to become a hit. In Pakistan there was the great Riaz Shahid whereas in India, Salim Javed and Kader Khan had the power to mesmerize the audience with their script. Ashir Azeem also has that ability and for those who remember Dhuwan, it was the patriotic dialogues that appealed to the audience 20 years back. Even today that hasn't changed and the way he has penned the dialogues shows that a lot of thought went into the creation of Maalik. When you hear Ehtesham Uddin announcing Maalik mulazim ko dhamki nahi, notice deta hai' you feel like standing up and hugging him because we, the people, are Pakistan's Maalik and we must be the ones defining the duties of our leadeRs, ' Then there is the Maalik oath for which every Pakistani can raise his or her right hand and repeat the words - 'Main Pakistan ka shehri, Pakistan ka Maalik hoon, yeh zameen, yeh log meray hain.
The hard-hitting and patriotism-inducing words of this oath are likely to become a popular cry after the release of the film.
' They already have become popular on social media where people from all walks of life have posted / shared their oaths. The oath is not just words, it is a mindset changer since whoever reads it gets goosebumps, such is the power of the words. The audience waited a long time for Ashir's return and his film has given them the chance to come to cinemas and watch their hero in action-be it through delivering dialogues or grenades."
' Press clipping from daily 'DAWN" published on 28.04.2016 has also been placed on record which reflect that the KPK government offered to permit the screening of subject film in its province despite its ban by the Federal Censor Board. However, on a warning issued by the Chairman of the Federal Censor Board that strict action would be taken against cinema houses for screening the banned film as almost all cinemas in KPK are located in Cantonment Areas, thereby falling under Motion Pictures Ordinance 1979, therefore, the movie was not screened in KPK. It is also reported in the said issue of daily 'DAWN" that even the Sindh Chief Minister asked the Ministry not to ban the subject film as it would be "against the Freedom of Expression", ' In this backdrop and without commenting on the material produced by the parties in support of their respective claims, the question before us appears to be as to whether the decertification of the subject film is bona fide and or its decertification without issuing a Show Cause Notice could be justified/sustained. The position which emerges from record admittedly reflects that after 18th amendment Province of Sindh and Punjab have upon a proper legislation after repealing of the Ordinance 1979 created their own Censor Boards and the subject film on recommendation of the respective Censor Boards not only of the Provinces but of the Federal Government was unanimously found suitable for public exhibition without/with excision. It is also important to note that not only private members from different walks of life were on the panel of the Censor Board but Members from ISPR and ISI were also included in the panel which had unanimously found film suitable for public exhibition.
' The Federal Government has taken the impugned action of uncertifiying the subject film under section 9(2)(a) of Ordinance, 1979 which reads as follows:--
9. Revisional powers of the Federal Government.---(1) Notwithstanding anything contained to 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 (XVIH 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) .
' Perusal of Section 9 of the Ordinance 1979 reflects that in cases where an action is proposed or taken by the Federal Government under subsection (1) of Section 9, a Show Cause Notice or hearing cannot be claimed as a matter of right as the statute itself expressly exclude the right of hearing. However, in cases where an action is envisaged under subsection (2) as in the instant case then beside the satisfaction of, the Federal Government that such action is necessary and 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, an opportunity of hearing has to be provided after supplying all the material on the basis whereof an action is proposed for the reason that under subsection (2) issuance of Show Cause Notice or provision for providing of hearing has not been expressly excluded and it is by now settled law that in cases where statute does not expressly exclude the provision for providing of a hearing before a proposed action then such right of hearing is to be read into that statute and an action taken in violation of such right i,e. Against the principle of audi alteram partem then such action is liable to be declared without lawful authority.
' In case of Messrs Everday Pictures Ltd. (supra) cited by Mr. Farogh Naseem more or less similar proposition. Came before a Court where a film was decertified without seeking any explanation from the producer/exhibitor on the ground that the film was highly derogatory to Pathans culture and was about to create class hatred and law and order situation and a Bench of this Court while endorsing view taken by a Bench of Lahore. High Court in the case of Shahid Afzal v. Government of Pakistan (PLD 1977 Lahore 117) held that if an order has been passed in violation of any express provision of law or the Rules or of the principle of audi alteram partem this Court would be competent to give declaration to the effect that such an order is without lawful authority and of no legal effect. The Court further reproduced the relevant portion from the judgment which reads as under:- "The conclusion to be drawn from the above is that the person deciding a case must inform the person of the allegations against him. He cannot act on undisclosed material or advice and that to validate his order he must inform the parties of all that material or evidence on which he would act. The facts given above show that the notice referred to above did not comply with these requirements and that in fact no show-cause notice was given by the authority competent to pass the order ' The rule is based on Qur'an and Sunnah and its origin can be traced back. The indication by the learned Judges who decided the case of Cooper (1863) 14 CBES 180) about the opportunity given by God Almighty to Adam is not supported by any text. The Holy Quran at various places has disclosed that each and every deed of every person, howsoever minor or insignificant, is being recorded by the Guardian Angels. Though there could be no doubt about the correctness of that record, yet the scrolls so prepared shall be given to each and every person on the Day of Judgment and they shall be asked if they have anything to say against it. Reference may be made to Verse 13-14 of Sura Bani Israil.
' Likewise, in the case of Messrs Bahu Flim Corporation (supra) Urdu feature film "Maula Jat' was decertified by the Federal Government while exercising power under Section 9(2)(a) and this Court held "that action under clause (a) of subsection (2) of Section 9 can only be taken after giving the person affected an opportunity of showing cause against the same. In these facts and circumstances, notwithstanding, the fact that the Federal Government had no authority to ban a film in both the provinces, the impugned action under Section 9(2)(a) without a show cause notice is found to be against the principles of audi alteram partem and therefore, is declared to be without lawful authority.
' Additionally, we are shocked to notice that Mr. Mobashir Hasan, Chairman, Central Board of Film Censors on 06.04.2016 under his own signature, on the recommendation of five panel members (including two from very sensitive institutions of Pak Army) has issued Censorship Certificate declaring the film fit for exhibition and then on receiving some complaints without ascertaining the genuineness of the complaints or verifying its contents by throwing the opinion of five respectable panel members into a dustbin, moved a Summary before the Secretary, Ministry of Information, Broadcasting and National Heritage, simply stating that a number of written complaints and phone calls lodged / made by the citizens have been received by the CBFC regarding the controversial depiction of politicians, incendiary theme and inciting dialogues in the subject film which hurt the sentiments of the complainants and left a damaging imprint on the minds of the audience and therefore, recommended for an action under Section 9(2)(a) of the Motion Pictures Ordinance, 1979. The summary does not even suggest that the Chairman has examined the complaints or verified them and or examined/seen the film and found the complaints correct. Even the Secretary while directing the decertification did not record his satisfaction in respect of the factors provided in the provision annexed to the Section 9(2)(a) of Ordinance 1979 and without application of independent mind or examining alleged adverse material and or recording his satisfaction as required under the proviso annexed to Section 9(2)
(a) and without recording reasons or seeking any explanation from the Petitioners simply directed 'approved to decertify', and signed the Notification the draft whereof was annexed by the Chairman along with the stated Summary.
' The Revisional power conferred on the respective Governments under Section 9(2) are to be exercised consciously not only because a penal action is envisaged but it also empowers the Federal and Provincial Government to upset/reverse the decision of the Panel Members of the Central Board of Film Censors who after examining the contents of the film had certified it fit for exhibition, therefore, in case the Federal or Provincial Government decides to exercise powers under Section 9(2) it not only has to give a show cause notice to the producer, exhibitor or distributor etc., but also has to provide him all the material on the basis whereof action under Section 9(2)(a) is envisaged so that he could properly respond to the allegations and then the officer of the Federal Government exercising such power after examining the film keeping in mind the complaints and the response before uncertifying the film, has to record his satisfaction that it is necessary to do so in the interest of 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. However, in the instant case both the Chairman Censor Board as ell as the Federal Secretary in a mechanical manner have acted en the complaints as if the complaints contain the gospel truth or they were asked to act accordingly. They not only violated the principle of audi alteram parlem but their order is found in clear derogation of Section 9(2)(a) of Ordinance, 1979 and therefore, cannot be sustained.
' In view of what has been discussed above, we allow this petition and quash the Notification of the Federal Government dated 27.04.2016.