SULTAN TANVIR AHMAD, J.---Present appeal is filed under Section 30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (the "Ordinance of 2002 ") against order dated 29.04.2021 passed by Respondent No.1, whereby fine of Rs.500,000/- is imposed against the Appellant-Channel.
2. The facts, necessary for the disposal of the present appeal, are that on 15.03.2021 a complaint titled "Advocate Ali Javed Darugar v. Neo News " was lodged alleging that Appellant-Channel on 09.03.2021 at 08:00 p.m. aired the programme Harf-e-Raaz with Orya Maqbool Jaan (the "Episode "). One of the topic of the discussion in the Episode was "Aurat March " which took place in various cities of Pakistan on 08.03.2021 to observe International Women's Day. The participants were carrying a tri-color flag which was close ly resembling the French flag.
Allegedly , the host of the Episode mistakenly thought the flag carried by "Aurat March" is the flag of France; that during the broadcast of the Episode, host gave personal views and sought expert opinion/ analysis of Mr. Orya Maqbool Jaan who gave his opinion. The Episode is allegedly against the Code of Conduct, 2015 as well as law laid down in the Suo Motu case No. 28 of 2018 reported as PLD 2019 Supreme Court 1. On 15.03.2021, upon realization of mistake, a public apology was aired during the prime time, at 08:00 p.m. by way of which Mr. Orya Maqbool Jaan clarified his stance by explaining his views, during the apology .
3. On 24.03.2021 notice was issued to Appellant-Channel along with complete complaint soliciting the written reply .
On 31.03.2021, the reply was filed by the Appellant-Channel, denying the intention of inciting the public or any harm to the participants or organizers of "Aurat March " or members of Women's Democratic Front (WDF) and by assigning the reason that confusion was due to similarity of flag of WDF and flag of France. The attention of the Respondent was also drawn towards the realization of the mistake and the apology tendered on 15.03.2021. The matter was placed before Council of Complaint (COC) in its 106th meeting on 01.04.2021 which found the contents of the Episode were violative of the Code of the Conduct, 2015 and following recommendation were passed:- "The Council recommended that a fine of Rs.500,000/-may be imposed on Neo TV and in such like cases PEMRA may issue advisory in general to all the channels, that they must exercise great caution while discussing the matters which involves religious sentiments because the same can very easily be used to target the private individuals or people who are involved in that. Even otherwise mandate of the constitution requires that great caution must be taken before any such allegation is to be raised. The matter disposed of".
The said recommendations were approved on 29.04.2021 by the Authority . Aggrie ved from the same; the present appeal has been filed.
4. Mr. Shan Saeed Ghumman, Advocate for the Appellant-Channel has argued that impugned order is arbitrary , illegal and against the principles of natural justice and the same is violating the fundamental rights of the Appellant- Channel as guaranteed by Articles 4, 5, 8, 10-A, 18, 19 and 25 of the Constitution of Islamic Republic of Pakistan; that the impugned order is passed in blatant violation of the explanations extended by the Complainant by way of written reply dated 31.03.2021. Learned counsel for the Appellant has further argued that the penalty imposed by the Respondent is excessive, reflecting the biasness and at the same time the excessive penalty infringes the basic principle of law. Added that human are bound to make errors and punishm ent are applied to encourage or enforce proper behaviour or compliance with the law; that after apology and realization of mistake, Authority should not have imposed highest pecuniary fine on the Appellant. Learned, counsel for the Appellant has also contended that the impugned order is violation of Section 8(5) of the Ordinance, 2002 as well as Pakistan Electronic Media Regulatory Authority and Council Rules, 2010.
5. Conversely , Barrister Haris Azmat, learned counsel for the Respondent has submitted that in the reply dated 31.03.2021 filed before Council of Complaint the allegations have already been admitted; that the matter is a serious matter concerning religious sentiments and the Appellant-Channel is clearly violated clause 3 (H, I, K and L) and clause 4 of Code of Conduct, 2015; that failure on the part of the Appellant-Channel to implead the complaint in the array of Respondents is fatal in the appeal and the same is liable to be dismissed on account of non-impleadment of necessary party; that generic grounds have been raised without reasonable explanation specially when the said grounds were never raised before Council of Complaint (COC).
6. One of the main point raised in the appeal is violation of Section 8 (5) of the Ordinance, 2002 which requires that all the orders, determinations and the decisions of the Authority (as defined in Secti on 2 (d) of the Ordinance), must identify the determination of Chairman and each member , separately . Further the Authority cannot delegate the powers in view of the judgment of the Honourable Supreme Court of Pakistan in case titled "Muhammad Ashraf Tiwana and others v . Pakistan and others " (2013 SCMR 1 159).
7. It is appropriate to reproduce the relevant Section of the Ordinance of 2002.
8. Meetings of the Authority , etc. (1) The Chairman or, in his absence, the member elected by the members for the purpose, shall preside at a meeting of the Authority .
(2) XXXXXXX
(3) XXXXXXX
(4) XXXXXXX
(5) All orders, determinations and decis ions of the Authority shall be taken in writing and shall identify the determination of the Chairman and each member separately .
Section 13 of the Ordinance, 2002.
Delegation:---- The Authority may by general or special order . delegate to the Chairman or a member or any member of its staff or an expert, consultant, adviser , or other officer or employee of the Authority any of its powers, responsibilities or functions under this Ordinance subject to such conditions as it may be rules prescribe.
(Underlining is added)
The Honourable Supreme Court of Pakistan in the case of "Muhammad Ashraf Tiwana" case (supra) has clearly held that all the statutory authorities must discharge its functions and responsibilities conferred by the statute and the powers must be exercised personally , unless, the Authority is expressly allowed by law/statute to delegate his powers. A reading of above, clearly reflects that the delegation is permissible under Section 13 of the Ordinance, 2002 which authorizes the Authority to delegate the powers to the persons enlisted in the said section (including the Chairman or members) to discharge the responsibilities and exercise the powe rs conferred by the Ordinance, 2002. Learned counsel for the Responde nts has pointed out that in 44th. meeting held on 31.07.2007 vide notice bearing reference No. PEMRA-1(2)Secy .2007-44 dated 01.07.2007, the Authority has delegated the powers to the Chairman of PEMRA, to approve minute s of meeting of the Council of Complaint, in terms of Section 26 of the Ordinance, 2002, (a copy of the relevant part of the said minutes of the meeting is also placed on record).
In case titled "NEO TV/Messrs Fun Information Network (Pvt.) Ltd, v. PEMRA through Chairman and others"
(PLD 2017 Islamabad 48), the Honourable Islamabad High Court has already dealt with the similar situation, as follows:- "17. Learned counsel for the appellant has objected to the order being without lawful authority inasmuch the same has been passed by General Manager (Operations), PEMRA. The order clearly speaks that the same has been passed by the competent authority in exercise of its delegated powers. Under section 13 of the PEMRA Ordinance, 2002, the Authority may, be general or special order , delegate to the Chairman or a Member or any member of its staff or an exper t, etc. any of its powers, responsibilities or functions under this Ordinance subject to such conditions as it may' by rules prescribe. Since the delegation of powers is permissible and there is nothing or record to the contrary that the order impugned is without lawful authority hence the referred objection by learned counsel for the appellant, is not tenable".
(Emphasis supplied)
The delegation of powers is permissible as per Section 13 and said delegation is in consonance with the law laid down by the Honourable Supreme Court of Pakistan in case titled "Muhammad Ashraf Tiwana and others v.
Pakistan and others" (supra). The objection, therefore, has no force.
8. The Council of Complaint gave detailed finding of facts and this meeting was duly attended by Hamayoun Safdar , Executive Editor of Appellant-Channel along with legal counsel. It has been already" settled in the case titled "Independent Media Corporation (Pvt.) Ltd. v. Pakistan Electronic Media Regulatory Authority through Chairman" (PLD 2017 Sindh 209) that the forum for determination the question as to the contents, which are aired by the Channel, is the 'Council of Complaint'. The relevant part of the said judgment is as under:- "With regards counsel's contentions that Court should determine whether the contents aired by the Appellant contained 'obscenity' indecency' or vulgarity', I do not see this as a job of this Court Courts are best suited for the job of upholding the rule of law and to provide of forum to resolve disputes and to test and enforce laws in a fair and rational manner . Therefore, the questions that whether the contents as aired by the Appellant contained 'obscenity', 'indecency' or 'vulgarity' are best suited to be answered by the appropriate forum, which in the instant case is of the Council of Complaints which gave its findings in affirmative, whereupon PEMRA issued Show-Cause Notice and imposed fine."
(Emphasis supplied)
Further reliance can be placed on the decision dated 26.06.2018 given by the Honourable Islamabad High Court, Islamabad in cases titled "Dr. Shahid Masood v. Pakistan Media Regulatory Authority through its Chairman.
Islamabad and others" and "M/s. Labbaik (Pvt.) Ltd. v. Pakistan Media Regulatory Authority 'through its Chairman, Islamabad and others" (F.A.O. No. 25-2017 and F.A.O. No. 37-2017). The relevant part of the judgment is as under:- "Neo TV recognizes the (unintentional) analysis of the situation by the host, and accepts full responsibility of the circumstances. The Channel, however , assures that necessary steps are being taken to prevent situations like these from happening in the future.' The channel understands that, such analysis could have far reaching adverse impact on the already conflicted society and thus, necessary accountability and disciplinary actions are being taken against the concerned persons of the programme. Furthermore, strict supervision is being conducted and advised in all programs of the Channel, for accurate fact-checking"
9. Furthermore, Appellant-Channel has already recognized its unintentional mistake and accepted the responsibility of the circumstances. The Appellant-Channel cannot be allowed reopen the dispute the facts which they have already acknowledged during the proceedings before the Authority or Council of Complaints.
10. Lastly , learned counsel for the Appellant has also invoked the mitigation circumstances, pleading that in view of the apology tendered and aired on 15.03.2021 lenient view, should have been taken. The person who admits his guilt and tendered apology , the Courts can take a lenient view but in case where the charges or allegations are also contested at the time, then the delinquent losses sympathetic consideration. This principle has already been settled by the Honourable Sindh High Court in case titled "H. Dr. Amjad Iqbal Bhatti v. Federation of Pakistan through Ministry of Health, Islamabad and 3 others" (PLD 201 1 Karachi 268 ) as follows:- "15. Invariable in cases where a person admits guilt or misconduct, express remorse, tenders apology and assures not to repeat wrong or misconduct complained of the authority concerned and so also courts of law do take a lenient view, of the matter but, in case charge or allegation is contested and is ultimately established, then such delinquent may lose sympathetic consideration or any leniency on the part of the authority or the Court"
11. As per Section 29 (6) of the Ordinance, 2002 the Authority can impose fine upto one million rupees, after giving reasonable opportunity to show-cause. The fine of Rs.500,000/- imposed by Authority is within parameters and limitation of law .
12. No case of interference in order dated 29.04.2021 is made out, therefore; present appeal is dismissed with no order as to cost.