KAUSAR SULTANA HUSSAIN, J. Succinct facts relevant for the disposal of instant appeal, filed under Section 30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007 (hereinafter referred to as the Ordinance, 2002") are that appellant M/s. Labbaik (Pvt.) Limited (known as Bol Media) which is a private limited company- engaged in television broad casting of news through Bol TV has challenged the "order dated 22.01.2021" of respondent No.2 i.e. Pakistan Electronic Media Regularity Authority (hereinafter referred as "PEMRA") whereby respondent has suspended the broadcast satellite TV Channel license of the appellant under Section 30 of Ordinance 2002 without hearing the appellant for a period of 30 days with -immediate effect and has imposed fine of Rupees One Million under Section 29 of the Ordinance 2002. The impugned order dated 22.01.2021 is reproduced hereunder for quick reference:- "Therefore, in the light of the above, the competent authority, while exercising powers conferred under Section 30 of PEMRA Ordinance, 2002 as amended by PEMRA (Amendment) Act, 2007 duly delegated under Section 13 to the Chairman by the Authority in its 156th meeting, has made the following decision: i. Broadcast Satellite TV Channel licence No.10-2 (26) STV-2005 dated January 23, 2008 conferred upon to M/s. Labbaik (Pvt.) Ltd. (BOL News) is hereby SUSPENDED with immediate effect for a period of thirty (30) days starting from January 22, 2021. ii. Fine to the tune of Rupees One (01) Million payable within thirty (30) days is also imposed under Section 29 of PEMRA Ordinance 2002, as amended by PEMRA (Amendment) Act, 2007, on M/s. Labbaik Pvt. Ltd. (Bol News). iii. M/s. Labbaik Pvt, Ltd. (BOL News) is also directed to constitute In-House Editorial Committee, share its details with the Authority and ensure compliance of PEMRA laws in order to sift unwarranted content before telecast.
This issues with approval of the competent authority".
2. As obvious from the impugned order, the license of the appellant was suspended for 30 days, a fine of Rupees One Million was imposed payable within 30 (thirty) days and also directions were given for the Constitution of in-House Editorial Committee with certain conditions to be complied with. Such order was in consequence and subsequence to the show cause notice issued to the appellant vide letter dated 13.01.2021 addressed to the Chief Executive Officer, M/s. Labbaik (Pvt.)
Ltd. (Bol News) signed by the Deputy General Manager, (Operations-Broadcast Media), PEMRA. The appellant submitted reply to the said show-cause Notice vide letter dated 19.01.2021. Through present appeal, appellant has prayed that impugned order dated 22.01.2021 passed by the respondent No.2 and issued by the respondent No.3 (Umair Azim D.G., Manager Operation Broadcast-Media-1 PEMRA) be declared illegal, arbitrary,. capricious, mala fide, coram non judice, without jurisdiction, violative of Articles 10-A, 18, 19 and 25 read with Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution) and also violative of Section 24-A of the General Clauses Act, as such said impugned order dated 22.01.2021 be set aside and further prayed for grant of permanent injunction restraining the respondents, their officers, subordinates, agents, representatives or any other person acting under or through them from taking any action against the appellants on the basis of the impugned order. Further, better, consequential and/or further relief as appear just and proper to this Court was also sought along with cost of the appeal.
3. On 25.01.2021, this Court after hearing the learned counsel for the appellant at some length had ordered to issue notice to the respondents and in the meanwhile the operation of impugned order dated 22.01.2021 was suspended.
4. I have heard the learned counsel for the parties at length, perused the record and the judgments relied on by the learned counsel for the parties in support of their respective contentions.
5. The learned counsel for the appellant Mr. Abid Zuberi, has argued that the impugned order dated 22.01.2021 is liable to be set aside on all or any of the following factual and legal grounds:-- i. That the impugned order is violative of Articles 18, 19 and 25 of the Constitution and ultra wires of the PEMRA Ordinance, 2002. It is also in violation of Article 10-A of the Constitution as no opportunity of hearing was provided by the Authority and no defense of the appellant is referred to in the impugned order. It is also in violation of right to fair trial by an impartial forum as provided in Article 10-A of the Constitution. The learned counsel for the appellant has relied on the judgment passed by the Hon'ble Supreme Court of Pakistan in case of MFMY Industries Ltd. v. Federation of Pakistan and reported in 2015 SCMR 1550 (relevant page is 1567) and PLD 2020 Sindh 733 (relevant page is 738); ii. That under Section 8(5) of the Ordinance 2002 all orders, determinations and decisions of the PEMRA shall be taken in writing and shall identify the determination of their chairman and each Member separately, as such impugned order fails to adhere, to the requirements of such proviso as the separate order of each member has not been identified therein. He relied on the judgment of learned Lahore High Court reported in PLD 2019 Lahore 486; iii. The learned counsel for the appellant has further argued that the power of delegation under section 13 of the Ordinance cannot be stretched so as to delegate quasi-judicial power specially the power to suspend emanates from the power to revoke or cancel which is expressly prohibited under Section 13 of the Ordinance itself; the quasi-judicial power of the authority cannot be delegated to any person or official of the respondent No.2, hence the order which culminated in the impugned order is illegal and in violation of law. iv. It is further argued that the law requires that before averting to section 30, the authority must advert to section 29 of the Ordinance, hence by using both powers simultaneously, the respondents have acted illegally and in violation of settled law. In support of his contention the learned counsel for the appellant has relied on the judgments reported in PLD 2016 SC 637 and 2020 SCMR 1822 (relevant page is 1839 and 1840, para. 19). v. Mr. Zubairi, the learned counsel for the appellant has further argued that the impugned order is in violation of section 24-A of the General Clauses Act, the same is passed in a mechanical/pre- determined manner without consideration of the contentions of the appellant and is non-speaking order. vi. Per learned counsel for the appellant; the impugned order is in violation of injunctive order dated 16.09.2020, passed by the Hon'ble Peshawar High Court in Writ Petition No. 3937-P / 2020. vii. He further argued that the impugned order passed on the false allegation that appellant has been in violation of Hon'ble Supreme Court Order in suo motu case No. 28/2018 although such order was passed regarding sub-judice matters in the Court, whereas appellant through its aired program dated 12.01.2021 has only discussed the scope and administrative functions of the Supreme Judicial Council, which comes within the ambit of Article 19 of the Constitution and such right is guaranteed by the Constitution. It was further averred that appellant did not violate Article 68 of the Constitution as the discussion was pertaining to the administrative functions of the Supreme Judicial Council. viii. It is argued that entire license of appellant has been suspended though the allegation is against one episode of one program, moreso no opportunity is afforded to the participants of the discussion to present their case. ix. It is contended further that the impugned order was passed in haste without giving due consideration to the facts put forth by the appellant in writing to the respondent. Contents of the decision make it clear that contentions of the appellants have been ignored and not been rebutted by the respondent No.2. x. Per learned counsel for the appellant, the impugned order passed on the basis of self- determination and assumptions, there is no truth in allegations as such order tantamount to excessive use of power and is in violation of the Constitution and PEMRA laws.
6. Mr. Kashif Hanif, learned counsel appearing on behalf of respondents Nos.2 and 3 did not file any written reply, although he filed a statement dated 15.02.2021 to answer certain queries made by this Court, however, he relied mainly upon the contents of show cause notice dated 13.01.2021, impugned order dated 22.01.2021 and also argued the matter at length before this Court, crux of impugned order and the arguments advanced by the learned counsel for the respondents are delineated as under:- i. That in response to show cause notice dated 13th January, 2021, authorized legal representative of the company (M/s. Labbaik Pvt. Ltd) appeared on 20th January, 2021 for personal hearing and also submitted written reply to the show-cause notice (SCN). ii. That in the reply to SCN M/s. Labbaik (Pvt.) Ltd., denied the allegations stipulated in the SCN and took instance that the program was aired with positive intention and this comes within the ambit of right of freedom of speech and access to right to information under Articles 19 and 19-A of the Constitution as such the program was in accordance with the PEMRA laws as well as directions given by the Supreme Court of Pakistan, however, per respondents, in the entire reply they have neither mentioned a single section of PEMRA Ordinance or Rules nor any judgment of Hon'ble Supreme Court or Hon'ble High Court or their relevant extracts. iii. That it is the duty of PEMRA to protect the right of freedom of speech as provided in Article 19 of the Constitution but at the same time the said Article is also confined to the reasonable restrictions as imposed by the Constitution and the law. iv. That the contents of such program contains a scurrilous attack upon the Hon'ble Chief justice and other Hon'ble judges of the Lahore High Court. The language and comments of program hosts were intended to disrespect the Hon'ble Judges of the Lahore High Courts, Lahore. The aspersions were leveled against the judiciary and its judges which resultantly would affect the faith and confidence of the general public in the highest judiciary, leading to demoralization, impairment and obstruction of the administration of justice by the Courts. v. That the right of freedom of speech is without any restriction worldwide, especially in the UK and USA. However, that is not the case in Pakistan where the right of freedom of speech is conditional and restricted by the Article 19 of the Constitution of Pakistan. No anchor, host or journalist can be permitted to telecast any program through which they intend to scandalize the Hon'ble Courts and the judiciary as a whole or make aspersions, personal remarks or allegations against the judiciary or judges. vi. That it is pertinent to mention that the Article 66 of the Constitution grants privilege to members of the parliament for open discussion, and no member shall be liable to any proceeding in any Court in respect of anything said in the Parliament. However, such privilege is subject to Constitution which relates to Articles 68, 114 and 204 of the Constitution of Pakistan. vii. That while reading the Article 68 of the Constitution, it is easy to say that the members of parliament have a right to discuss all matters in the parliament except the conduct of judges.
Considering this notion, how can the media consider it their right to discuss the conduct of judges under Article 19 which is even subject to reasonable restrictions. How can any host, anchor, guest or TV channel exonerate themselves from this Article and consider themselves above the Constitution and its forum. viii. That despite the referred judgments and laws laid down by the superior Courts, and having explicit restriction in Article 19, read with Article 68 of the Constitution regarding the discussion about the conduct of superior judges, M/s. Labbaik (Pvt.) Ltd. (Bol News) in the referred program has intentionally violated the said Article of the Constitution as well as Electronic Media (Program and Advertisements) code of conduct 2015 and the order of the Hon'ble Supreme Court of Pakistan passed in suo moto case No. 28 of 2018 dated September 12, 2018, communicated to all satellite TV Channel licensees including Bol News on various occasions. ix. That in the reply submitted by M/s. Labbaik Pvt. Ltd (Bol News) it did not show any regret or remorse, nor apologized regarding the contents aired on January 12, 2021 in its program "Tajzia". x. That it is clear that Bol News has violated section 20(c) & (f) of PEMRA Ordinance, 2002 as amended by PEMRA (amendment) Act 2007, Rule 15(1) of PEMRA Rules 2009: Regulation 18 (c) and
(g) of PEMRA (Television Broadcast Station Operations) Regulations 2012; Clauses 3(1) (j), 3(1), 4(10), 5, 17 & 23 of Electronic Media (Programs and Advertisements) Code of Conduct 2015. xi. That 1 prior to PEMRA (Amendment) Act, 2007; proviso of Section 13 of the Ordinance did contain word "suspend" alongside words 'grant', revoke and cancel', however, the word 'suspend' was omitted through PEMRA (Amendment) Act, 2007 which clearly denotes that power to suspend could be delegated after the passage of-Amendment Act. xii. That suspension is not quasi-judicial power rather it is an interim measure of immediate nature. xiii. That section 13 of the Ordinance is directory in nature and not a mandatory one. xiv. That statement dated 15.02.2021 together with its enclosures provide a clear response to various queries and ambiguities.
7. Upon hearing arguments of the counsel of both sides and perusal of record and relevant laws, it reveals that the learned counsel for the appellant challenged the impugned order mainly on three premise (1) it is against the PEMRA Ordinance, PEMRA Rules/Regulations and General Clauses Act, la) the same is in contravention to various Articles of the Constitution of Pakistan and (3) No reasonable time was given to submit a meaningful written reply to the 'Show Cause Notice' nor any opportunity of hearing was afforded before the "Authority". Learned counsel for the respondents conversely opposed the instance of the counterpart arguing that the impugned order passed by the functionaries of PEMRA is strictly in accordance with applicable laws, in conformity with the Constitution and that there is no infirmity or short coming in the procedure as alleged by the appellant.
8. It deemed appropriate for the disposal of instant appeal that each aspect of the case as agitated by the appellant is discussed in sequence while incorporating input of both the sides.
9. Learned counsel for appellant raised objection that under subsection (5) of section 8 of the Ordinance "All orders, determinations and decisions of the Authority' shall be taken in writing and shall identify the determination of chairman and each member separately, in support of his submission he placed reliance upon PLD 2019 Lahore 486. In order to elucidate legal aspect, section 8 of the Ordinance is reproduced as under:-
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) One-third of the total members shall constitute a quorum for meetings of the Authority requiring a decision by the Authority.
(3) The members shall have reasonable notice of the time and place of the meeting and the matters on which a decision by the Authority shall be taken in such meeting.
(4) The decisions of the. Authority shall be taken by the majority of its members present, and in case of a tie, the member presiding a meeting shall have a casting vote.
(5) All orders, determinations and decisions of the Authority shall be taken in writing and shall identify the determination of the Chairman and each member separately,
10. From bare reading of above section, it is abundantly clear that this section deals with meeting of the 'Authority' which consists of Chairman and twelve members, quorum for meeting, notice and place of meeting, decisions taken in the meeting, casting vote of the Presiding Member and identification of the determination of each participating member. It has to do nothing with the day to day affairs of PEMRA and issuance of show cause notice. Hence instance taken and arguments advanced by the learned counsel for the appellant on this point are neither relevant nor valid.
11. It is imperative to discuss as to whether section-13 of the Ordinance is applicable in this case and whether delegation of certain powers to Chairman by the "Authority" are in consonance with the spirit of the Ordinance or otherwise. For the ease of convenience section-13 of the Ordinance is copied here under:-
13. 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 by rules prescribe: Provided that the delegation of such power shall not include the power to grant, revoke or cancel a broadcast media or distribution service licence except Cable TV.
12. It is crucial to notice that in the proviso of section 13 of the Ordinance prior to Amendment Act 2007, word 'suspend' was occurring making its mandatory for the functionaries of PEMRA to refer the matters relating to grant, suspend, revoke, or cancel a broadcast license to the 'Authority' as these powers could not be delegated by the "Authority" to any person within the meanings and spirit of section-13 of the Ordinance. However word 'suspend' was conspicuously omitted through "Amendment Act, 2007 making it lawful for the Authority to delegate the powers 'suspend' a broadcast media or distribution service license except cable TV to PEMRA functionaries. For ready reference proviso of the section 13 prior to Amendment Act, 2007 is copied here:-- "Provided that the delegation of such power shall not include the power to grant, suspend, revoke or cancel a broadcast license."
13. It is apparent that through Amendment Act, 2007 word 'suspend' was omitted by the legislature making its intent lucid that such power could be delegated, leaving no ambiguity whatsoever as such delegation cannot be termed as quasi-judicial or non-delegable. Now the question arises whether such powers were actually delegated by the "Authority" to the Chairman or not and whether such delegation, if made, was in accordance with law or otherwise, here I would refer to the statement dated 15.2.2021 (and its enclosures) filed by the learned counsel for the respondents Nos. 2 and 3 in response to certain queries made by this Court. The Annexure "C" attached with the statement referred to above are the Decisions of Authority's 156th meeting circulated under its reference No PEMRA-1(2)/Secy/2020/156th dated, 24th April, 2020 wherein at serial No.5 following decision was made:-
5. "Delegation of Powers to Chairman under section 13 of PEMRA Ordinance, 2002 (Amendment Act, 2007) for suspension of Broadcast Media licenses.
14. The "Authority" unanimously, under section 13 of PEMRA Ordinance, 2002 delegated its powers vested under section 30 of PEMRA Ordinance, 2002 to the extent of suspension of a license; which shall be exercised by the Chairman in case a licensee violates any provision of the ordinance, the Rules or' regulations or Terms and Conditions of license. After exercising such powers, the chairman shall bring the said action into the notice of the "Authority" in its forthcoming meeting.
15. Subsequently, in its 157th meeting held on 21st May, 2020; draft minutes of 156th meeting of Authority were unanimously approved at serial No.2 of the decisions circulated vide No. PEMRA- 1(2)/Secy/2020/156th, thereby making the decision explicit at their end. However, here point of ponder is that whether the Authority was competent to delegate such powers to Chairman, PEMRA or not. At this juncture, I would seek guidance from the order recently passed by an Hon'ble Division Bench of this Court in C.P No. D-2680 of 2020, authored by my learned brother colleague Mr. Justice Muhammad Ali Mazhar (the then justice of this Court), wherein it was held that:- "The powers of the Pakistan Electronic Media Regulatory Authority vested in Section 30 of the PEMRA Ordinance, 2002 could not be delegated to the Chairman or any other official of PEMRA by dint of Section 13 of PEMRA Ordinance, 2002 for suspension of Broadcasts Media Licenses without framing of Rules. Henceforth, the decision of Authority to this extent conveyed vide minutes of meeting dated 24th April 2020 is also declared null and void. Consequently, all actions taken by the Chairman pursuant to the delegated powers for suspension of Broadcast Media Licenses are strike down."
16. Pondering upon the discussions in the preceding paragraph reveals that viewpoint presented before this Court by the learned counsel for the appellant that delegation under section 13 of the Ordinance cannot be stretched so as to delegate quasi-judicial power specially the power to suspend emanates from the power to revoke or cancel which is expressly prohibited under section-13 of the Ordinance itself; could be termed erroneous interpretation of the statute. It is evident from above discussion that (1) powers to suspend a broadcast media can be delegated by virtue of PEMRA (Amendment) Act, 2007 and that (ii) such powers were delegated to the Chairman PEMRA by the Authority in its 156th meeting and confirmed in its 157th meeting were without the force of rules as such it was unlawful exercise of the powers vested in the "Authority" having no effect thus void.
17. Learned counsel for the appellant submitted that the law requires that before adverting to section-30, the Authority must advert to section 29 of the Ordinance and that using, both powers simultaneously, respondents have acted illegally. Here I am of the considered opinion that there is no such bar put by the Ordinance 2002: section-29 deals with power to authorize inspection, in subsection (6) of section-29, it is prescribed that The Authority may, after the license has been, given reasonable opportunity to show cause, impose fine up to one million rupees on a licensee, who contravenes any of the provisions of this Ordinance or the rules or regulations made there under". However, record available before this Court could not show any such order of fine passed by the Authority itself or any authorization conferred upon to Chairman, PEMRA by the 'Authority' to exercise powers under subsection (6) of section-29 to impose fine, also statement submitted by the learned counsel for the respondents is silent about this aspect. In such circumstances exercise of powers under ibid proviso of law seems without the force of law until rules under Section 13 are framed and subsequently delegation as per Ordinance, 2002 is conferred upon Chairman or any other person as defined in such Section, accordingly imposition of fine appears an injudicious exercise by the Chairman, and is not maintainable.
18. It was also expounded that the impugned order is in violation of section 24-A of the General Clauses Act being a non-speaking order. I don't find. any substance in such averment as impugned order provide ample reasoning and rationale for passing such order except inexplicable application of subsection (6) of section 29 of the Ordinance and erroneous application of section 30 on the ground of non-framing of rules under section 13 of the Ordinance, 2002. So far as passing of impugned order during the pendency of injunctive order dated 16.09.2020 said to have been passed by the Peshawar High Court in writ petition, suffice is to say that respondents passed impugned order on a fresh cause of action, in essence an injunctive order cannot be stretched to an extent to cover all fresh contraventions of laws arising out from fresh cause(s) of action(s).
19. The averment by the appellant's learned counsel that the impugned order is violative of Articles 10-A, 18, 19, 19-A and 25 read with Article 4 of the Constitution and further that the appellant's discussion pertained to the administrative functions of Supreme. Judicial Council and such right is guaranteed by the Article 19 of the Constitution does not hold ground on factual premises as bare reading of copied portion in Urdu (annexure-A/1 and A/6) especially the verbatim of program "Tajzia" dated 12.01.2021 on Bol News Channel (Page 105-119) hosted by Sami Ibrahim and Mian Daud clearly specify that the comments/statements aired in the program were aimed to malign the Hon'ble Chief Justice and the Hon'ble Judges of the Lahore High Court. The language used was quite sub-standard, abusive, contemptuous and intended to disrespect and scandalize the judges leveling personal allegations against the Hon'ble Judges of higher judiciary. Such aspersions and vilification of the character of members of higher judiciary is forbidden by the Constitution itself.
Article 19 of the Constitution while guarantee the freedom of speech also put some restraints over such right which has clearly been articulated in it which also include but not limited to contempt of Court. Similarly rights enshrined through Article 19-A regarding access to information in all matters of public importance are also subject to regulations and reasonable restrictions imposed by law and such restrictions have been given in various enactments including Ordinance, 2002 and Rules, Regulations and Code of Conduct made there under. Likewise freedom of trade, business or profession is also subjected to certain regulations to be enacted to discipline, monitor, manage and for the furtherance of such trade, business and profession as in the case of broadcast media such laws have been enacted/promulgated.
20. It is added that Article 66(1) of the Constitution give full freedom of speech to members of parliament so much as that no member shall be liable to any proceedings in any Court in respect of anything said in the parliament yet Article-68 puts a bar on such members that "No discussion shall take place in parliament with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties." An identical restriction has also been imposed by Article 114 on Provincial Assemblies. Article 204 of the Constitution specifically extend provision for taking cognizance of and to award punishment for various offences constituting contempt- of Court, which inter alia includes abuse, contempt, ridicule or scandalize the Supreme Court or a High Court.
21. Articles 66(1) and (4), 68, 114, 204 and 210 (2) of the Constitution are reproduced hereunder for ready reference: Article 66: Privileges of members, etc
1. Subject to the Constitution and to the rules of procedure of Majlis-e-Shoora (Parliament), there shall be freedom of speech in Majlis-e-Shoora (Parliament) and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Majlis-e-Shoora (Parliament), and no person shall be so liable in respect of the publication by or under the authority of Majlis-e-Shoora (Parliament) of any report, paper, votes or proceedings.
4. The provisions of this Article shall apply to persons who have the right to speak in and otherwise to take part in the proceedings of Majlis-e-Shoora (Parliament) as they apply to members.
Article 68. No discussion shall take place in 1 [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
Article 114. No discussion shall take, place in a Provincial Assembly with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
Article 204. (1) In this Article, 'Court' means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who--
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court ;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.].
Article 210. (2) The provisions of Article 204 shall apply to the (Supreme Judicial) Council as they apply to the Supreme Court and a High Court.
22. So far as Article 4 of the Constitution as referred to by the appellant is concerned, undoubtedly such Article give, assurance to an individual to be dealt with in accordance with the law, here in the present case, PEMRA issued show cause notice which was duly received and answered by the appellant through its representative Ms. Naila Noreen, Advocate, High Court, Islamabad authorized vide authority letter issued by the appellant. She also signed attendance sheet of personal hearing dated 20.01.2021, such fact though rebutted by the appellant, however, it did not produce any statement or affidavit of Ms. Naila Noreen, Advocate before this Court in support of its claim that opportunity of personal hearing was not afforded to her. Moreso no written communication was addressed to PEMRA authorities on same or following day regarding such infringement of right, if it really was. However, averment of Appellant to this issue is correct to the extent that opportunity of hearing was not afforded by the "Authority". Rest of the actions/proceedings of the respondents were already discussed above in detail and instantaneous inference drawn as to the legality of such proceedings.
23. It is evident that contents of the program under scrutiny were, in contravention/violative of the following provisions of relevant laws/rules and Regulations as spelled out as under:-
1. Subsections (c), (d) and (f) of Section 20 of PEMRA Ordinance 2002 as copied here under.- Section 20. Terms and conditions of license:- A person who is issued a license under this Ordinance shall:--
(c) ensure that all programs 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;
(f) (sic) comply with the codes of programs and advertisements approved by the Authority and appoint an in-house monitoring committee, under intimation to the Authority, to ensure compliance of the Code; [2]. Rules 15(1) & (2) of Pakistan Electronic Media Regulatory Authority Rules, 2009 as reproduced hereunder:-
15. Programmes and advertisement content. -
(1) The contents of the programmes and advertisements which are broadcast or distributed by the broadcast media or distribution service operator, shall conform to the provisions of section 20 of the Ordinance, these rules, the code set out in the Schedule-A and terms and conditions of the license.
(2) The programmes shall also conform to the provisions of the Motion Pictures Ordinance, 1979 (XLIII of 1979), the rules and code of conduct made thereunder, whereas the advertisements shall also conform to the TV Code of Advertising Standards and Practices in Pakistan and Advertisement Code issued by the Authority.
3. Regulation 18 (1) (c) of Pakistan Electronic Media Regulatory Authority (Television Broadcast Operations) Regulation, 2012 as transcribed here under:-
18. General standards of programmes--
(C) The licensee shall ensure that nothing is contained in any programme, or an advertisement, which is prejudicial to the interests of the sovereignty and integrity of Pakistan, Ideology of Pakistan, security, friendly relations with foreign states, public order or which may constitute contempt of court, defamation or incitement to an offence or beings into disrepute the State institutions including armed forces; [4]. The Electronic Media (programs and advertisements) code of conduct, 2015, clause 3(1)(i)(j) & (1), 4(1), 4(7)(a) and (b), 4(10), 18, 19 and 24(1) as jot down below:-
3. Fundamental principles:- The licensee shall ensure that:-(1) No content is aired which :-
(i) is known to be false; or there exists sufficient reasons to believe that the same may be false beyond a reasonable doubt;
(j) contains aspersions against the judiciary or armed forces of Pakistan.
(1) is defamatory as defined in the law for the time being in force; or
4. News and current affairs programmes:- The license shall ensure that:--
(1) News, current affairs or documentary programmes shall present information in an accurate and fair manner.
(7) In talk shows or other similar programmes, the licensee and its employees shall ensure that:-
(a) Information being provided is not false, distorted, or misleading and relevant facts are not suppressed for commercial, institutional or other special interests;
(b) The programme is conducted in an objective and unbiased manner;
(10) Editorial oversight:- The licensee shall ensure that its representatives, hosts and producers of the programme shall discuss and review the contents of the programme prior to programme going on air / being recorded, and ensure that its contents conform to, in letter and spirit, this Code of Conduct,
18. Errors and corrigendum:- Where any false news or information is aired, the licensee shall acknowledge and correct it on the same medium without any delay in the same manner and magnitude as that of the false news or information was aired. The Corrigendum shall be aired at appropriate time.
19. Facts and opinion:- The licensee shall ensure that:--
(1) If during a talk show or news show a guest makes or asserts an opinion that is presented as a fact, on a serious issue, the channel and or its representative must intervene and protect the audience by clarifying this is an opinion and not a fact.
24. Standards of behavior:-
(1) This Code presents the standards to be complied with by all the licensees and it shall always be the sole responsibility of the licensee to ensure the content aired by it is in compliance with the Code of Conduct..
24. I also intend to discuss para 8 of the impugned order wherein it is stated that:- "whereas the right of freedom of speech is without any restriction worldwide especially in the UK and USA. However, that is not the case in Pakistan, where the right of freedom of speech is conditional and restricted by the Article 99 of the Constitution of Pakistan."
25. It is observed that this sweeping personal statement by the Chairman, PEMRA was neither necessary nor required to be made part of impugned decision being ab initio erroneous supposition. It is to be noted that right of expression worldwide is subject to "some" restrictions.
Such restrictions are sequel to and influenced by the religion, ideology, geography, history, ethical values, cultural fabric and social and economic conditions etcetera. In most of countries there are laws governing such limitations and restrictions; however in the case of United States though there is no restriction on freedom of speech after the first amendment in the Constitution of the union which is reproduced hereunder yet there are superior Court's verdicts which put reasonable restrictions on right of freedom of speech and expression:-- "RELIGION AND FREE EXPRESSION": FIRST AMENDMENT.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"
26. It is known fact that law of Torts/Defamation are strongly enforced in the United States which exists to redress damages caused to an individual by the conduct of another that falls below a standard of care defined by the Courts. In the case of Earnest B. Morphy v. Boston Herald, Inc and another, decided on 7th May, 2007 by the Supreme Judicial Court of Massachusetts, Suffolk, an amount of 2.09 million USD was awarded to plaintiff Judge in compensatory damages. The Court held that:-- "The press, however, is not free to publish false information about anyone, nor would anyone disagree about the media's right (and duty) to examine the affairs of the judicial branch of government and to criticize activities of judges and other Court officials that do not meet the high standards expected of judges and the Courts. No one would disagree with the importance of upholding the freedom of press."
27. Similarly in the United Kingdom, the 'Human Rights Act, 1998' guarantees all rights and privileges to an individual in the society, yet Article 10 put some reasonable restrictions on such as copies below:- 10(1) "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises."
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received In confidence, or for maintaining the authority and impartiality of the judiciary.
28. Suffice is to conclude that reasonable restrictions imposed by the Constitution and certain enactments are neither uncommon nor distinctive from rest of the world.
29. From the forgoing discussions and reasoning, I come to the conclusion that:- a) The decision of suspension of broadcast satellite TV Channel license No. 10-2 (26) STY-2005, dated 23.01.2008 conferred upon M/s. Labbaik (Pvt.) Ltd. (BOL News) passed by the Chairman, PEMRA under Section 30(1) of Ordinance, 2002 in exercise of the delegation of authority vested in him under section 13 of the Ordinance is set aside in the wake of absence of rules as necessitated in this behalf. However, "Authority" is at liberty to take up this issue again by itself in accordance with Section 30 or by the Chairman subject to the condition that rules are framed by the competent authority under Section 13 and de novo proceedings are adopted by the Chairman strictly in accordance with law and the rules so framed. b) The decision of 'fine' amounting to Rupees one million imposed under section 29 of the Ordinance is set aside as no evidence come up on record regarding lawful delegation of such powers to Chairman PEMRA by the 'Authority' under Section 13, However. "Authority" is at liberty to take up this issue again by itself in accordance with Section 29(6) or by the Chairman subject rules are framed by the competent- authority under Section 13 and de novo order is passed by the Chairman strictly in accordance with law and Rules so framed. c) M/s. Labbaik (Pvt) Ltd. shall constitute an In-House Monitoring Committee and Editorial oversight committee in accordance with section 20 (f) of the Ordinance and Code-10 of Electronic Media Code of conduct-2015 respectively, within 15 days of the pronouncement of this judgment, if not already constituted. d) The authority shall ensure that periodical compendiums of all important Authority's decisions and orders be compiled for public information as stipulated in Seciton-4 and Section-5 of Right of Access to Information Act, 2017, such publication shall be subject to provisions contained in Article- 19-A of the Constitution and section-7 of the Act ibid. Such directions shall be placed as an Agenda item in the first ensuing meeting of the "Authority" for deciding modus operandi and details of the said publication. The "Authority" through aforesaid meeting shall also issue directions to functionaries of PEMRA not to make surmises and conjectures part of any Decision or order intended to be made or passed by them in future. e) The PEMRA shall frame rules as required in section 13 of the Ordinance, 2002 (as amended) within 90 days of the pronouncement of this judgment and a copy of such rules shall be supplied to this Court through MIT-II.
30. Record shows that on 08.02.2021, C.M.A. No. 681 of 2021 filed by the appellant under Sections 3 and 4 of the Contempt of Court Ordinance, 2003 read with Order XXXIX, Rule 3(2) C.P.C and Article 204 of the Constitution came up for hearing. In the said application appellant stated that Chairman PEMRA Saleem Baig, (alleged contemnor No.1) in gross disregard to this Court order dated 25.01.2021 issued illegal, unlawful and unjustified directions to the Cable Operators through his regional heads and officials including other alleged contemnors namely Muhammad Farooque, Muhammad Ikram Barkar, Asim, Amin Bhatti and Mazhar Chauhan to shut down BOL TV broadcast and/or to keep the BOL Channel to the last number. It was further stated that through such act of alleged contemnors; the authority of this Court was brought to disrespect, and this is a judicial contempt. It was further prayed that directions may be issued to allege contemnor No.1 and other alleged contemnors to appear in person before this Court. In the accompanying affidavit, the appellant attached copy of the USB and transcript of alleged telephone calls of PEMRA officials to the Cable Operators and off-air report of BOL, Channel. Accordingly orders were passed for issuance of Notice to alleged contemnors.
31. After service of notice the alleged contemnor No.4 himself through filing Counter Affidavit and rest of the alleged contemnors through written reply dated 09.02.2021 submitted by their counsel on behalf of all of them have denied conveying any such direction or instructions to cable TV Operators. While first tendering unconditional apology, they all refuted the allegation leveled against them by the appellant. They all re-iterated that appellant filed reply and after giving the full hearing opportunity to appellant, the respondent passed order dated 22.01.2021; that on 25.01.2021 during the course of hearing this Court suspended the operation of impugned order; that PEMRA on very same day issued letter to all relevant offices for the compliance of order passed by this Court; that as an abandoned precaution such directions were also issued through whatsApp; that during the course of hearing on 08.02.2021 this Court has asked the names of the cable operators, who has recorded this fictitious telephone conversation but despite multiple requests tile appellant's counsel in the presence of appellant's representative failed to name the person. They have substantiated their claim through various annexures attached to their reply. Alleged contemnors also offered that BOL may file a proper complaint in this regard to the PEMRA and ensured proper action in accordance with law over the matter.
32. At this juncture it is hard to determine as to whether any willful judicial contempt of the orders of this Court has been committed as record available in the case file reveals that there is quite an extensive history of hostility/rile conduct amongst the officials of Regulator and BOL TV, there are/were allegations and counter allegations between both sides and so also many cases in different Courts. In such circumstances it would be prudent that transparent enquiry is to be conducted through an independent committee comprising of Federal Secretary or Additional Secretary, Ministry of Information and Broadcasting as Convener and two general public Members of the Authority envisaged in Section 6(3) of the Ordinance, 2002; shall enquire into such allegations within one month from the pronouncement of this order and submit its findings/recommendations before the Authority in its subsequent meeting, provided that Ministry of Information Broadcasting (MOIB) shall issue a formal notification of Constitution of such committee within one week; provided further that during such meeting Chairman PEMRA shall not preside over the meeting on above agenda item adhering to the principle of Nemo Judex in sua causa, consequently such meeting shall be presided over by a Member of the Authority as per procedure prescribed in Section 8(1) of the Ordinance, 2002. The decision of the "Authority" of such meeting shall be implemented in accordance with law. With the above observations and directions present Contempt proceedings against all the alleged contemnors are vacated.
33. A considerable number of case laws/citations are produced before this Court by the parties Counsel, particularly Appellant's side, which are of great assistance in deciding this matter, for the purpose of record such case laws/citations relied upon by the learned counsel for the appellant are transcribed below:- i. PLD 2019 SC 1. ii. PLD 2016 SC 37 iii. PLD 2019 Lahore 486 iv. 2013 SCMR 1159 v. 2009 CLD 1498 Lahore. vi. 2017 SCMR 1179 vii. 2020 CLC 534 viii. 2013 CLC 1376 ix. PLD 2020 Sindh 204. x. PLD 2020 Islamabad 343 xi. 2016 SCMR 943 xii. 2015 SCMR 1550 xiii. 1998 SCMR 1863 xiv. PLD 1999 SC 1126 xv. PLD 2020 733 Karachi xvi. 2005 SCMR 678 xvii. 2009 SCMR 1407 xviii. PLD 2019 SC 189 xix. 2015 SCMR 630 xx. 2010 SCMR 1301 xxi. 2009 SCMR 1354 xxii. PLD 1991 SC 14 xxiii. PLD 2005 SC 193 xxiv. PLD 2019 SC 318 xxv. 2019 PTD 1922 xxvi. PLD 2017 Lahore 709 xxvii. PLD 2016 SC 692 xxviii. 1993 SCMR 1533 xxix. 2020 SCMR 1822' xxx. 2017 SCMR 1249 xxxi. 2018 SCMR 1820 xxxii. S. Members judgment in civil appeal No. 1413 of 2013 (Un-reported judgment) xxxiii. M.A No. 45 of 2020, judgment passed by Mr. Justice Umar Sial.
34. Following judgments/case laws were referred to by the respondents side in support of their contentions
1. PLD 2018 SC 773
2. 2018 P Cr. L J 899
3. 2019 SCMR 542
4. 2019 PLD Lahore 486
5. 2019 YLR 574 Sindh
6. PLD 2017 Lahore 545
7. 2000 SCMR 1305-1311
8. 2012 SCMR 268-282
9. 1974 SCMR 123
10. 2016 SCMR 808
11. 2000 SCMR 1305
12. 2019 SCMR 846
13. PLD 1993 SC 129 14.2018 YLR 169
35. With the above observations, instant Appeal stands disposed of. However, I must appreciate the valuable assistance rendered by Mr. Abid Zuberi, the learned counsel for the Appellant, Mr. Mohammad Ahmed, Assistant Attorney General and Mr. Kashif Hanif, the learned counsel for the Respondents Nos.2 and 3 during the course of adjudication of instant appeal.