This order will dispose of Writ Petition No. 1048 of 1972 filed by the Editor, Printer and Publisher of the Weekly "Punjab Punch"; Writ Petitions 1064 and 1136 of 1972 by the Editor, Printer and Publisher of the Monthly "Urdu Digest" and Writ Petition No. 1085 of 1972 by the Editor, Printer and Publisher of the Weekly "Zindagi", which are founded on similar facts and raise like questions of law.
2. Mr. Hussain Naqi, petitioner No. 1 in W. P. No. 1048 of 1972, applied to the District Magistrate for a declaration to publish an English Weekly from Lahore in the name and style of "Punjab Punch". The declaration was authenticated by respondent No. 1 on the 10th of February 1971. Mr. Hussain Naqi is the publisher of the "Punjab Punch" and Mr. Muzaffar Qadir, petitioner No. 2 claims to be its printer.
But the case of the respondents is that Sardar Muhammad Sarfraz, according to the record, has been declared to be the printer of the paper. The petitioners published and printed the Weekly till the 2nd of April 1972 but no issue was published between April 3 to July 8, 1972. Respondent No. 2 Mr. Mumtaz A.I Khan, Inspector of Police along with respondents Nos. 3 and 4 who are Assistant Sub- Inspectors, seized the copies of the "Punjab Punch" from the Printing Press on the 27th of July 1972, in pursuance of a warrant of search issued by the District Magis--trate, Lahore under section 37 of the West Pakistan Press and Publications Ordinance, 1963, on the ground that they were unauthorised newspapers. The petitioners have filed this petition with the prayer that the action of the respondents be declared as illegal, unwarranted and of no consequence, and that the respondents be directed to release the seized copies of the "Punjab Punch" forthwith. They have further prayed that it be declared that the declaration of "Punjab Punch", is valid, in accordance with law and the respondents have no right to Interfere with the printing and the publishing of the said Weekly.
3. Dr. Ejaz Hassan Qureshi and Altaf Hassan Qureshi, petitioners in Writ Petitions 1064 and 1136 of 1972, filed a declaration under section 7 of the Ordinance for the printing and publishing of the Monthly "Urdu Digest" on the 30th of March 1964. It was duly authenticated by the District Magis-- trate, Lahore, under section 12 of the Ordinance. The petitioners printed and published the Monthly "Urdu Digest" till April 1972, but no issue was published for the two consecutive months of May and June 19 2. On the 31st of July of 1972 the petitioners' press was raided by Ch. Alam Din, Sub-Inspector of the New Anarkali Police Station, admittedly on the authority of the search warrant issued by the District Magistrate, Lahore, in order to seize unauthorized printed and semi-printed material, but finding nothing unauthorized, he left the press with an undertaking from petitioner No. 1 that the printed material for the issue of August 1972 will not be issued by the petitioners. Writ Petition No. 1136 of 1972 was moved by Dr. Ejaz Hassan Qureshi to challenge the subsequent search warrants issued by the District Magistrate for carrying on searches of the petitioners' press.
4. Through Writ Petition No. 1065 of 1972 filed by Dr. Ejaz Hassan Qureshi and Altaf Hassan Qureshi a declara--petition has been sought to the effect that their declaration to edit, print and publish the Weekly "Zindagi" is intact and the res--pondents have no lawful authority to stop the editing, printing and publication of the said Weekly.
5. Before I deal with the contentions which have been raised by the learned counsel for the petitioners it is necessary to refer to subsections (1) and (2) of section 37 of the Ordinance which read as follows:- "37.-(1) Any police officer or any other person empowered in this behalf by the Government may seize any unauthorized news-sheet or unauthorized newspaper, wherever found.
(2) Any District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class may by warrant authorize any police officer not below the rank of Sub-Inspector to enter upon and search any place where any stock of unauthorized news-sheets or unauthorized newspapers may be or may be reasonably suspected to be, and such police officer may seize any documents found in such place which In his opinion, are unauthorized news-sheets or unauthorized newspapers."
A Police Officer can under subsection (1) seize an unauthorized newspaper wherever found. If a search is to be conducted of any place for seizing the unauthorized newspapers it can only be under the provisions of subsection (2) of section 37 on a warrant issued by the District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class authorizing any police officer not below the rank of Sub-Inspector to enter upon and search the place. The action under section 37 is competent only if the news-sheets or the newspapers are unauthorized.
6. The term "unauthorized newspaper" as defined in clause (p) of section 2 of the Ordinance "means-(f) any news--paper in respect of which there are not for the time being valid declarations under section 7, and (it) any newspaper in respect of which security has been required under this Ordinance, but has not been furnished as required."
The petitioners had got their declarations duly authenticated by the District Magistrate. They, however, failed to print and publish the newspaper within the period stated in subsection (3) of section 9 of the Ordinance. The declarations, according to the respondents, had become null and void under section 9 of the Ordinance which reads as under:- "9. Effect of non publication of newspaper.-(I) If a newspaper in respect of which a declaration has been made under section 7 is not published within three months of the date of which such declaration is authenticated under section 12, the declaration shall become null and void.
(2) Where a declaration becomes null and void under subsection (1) the printer and the publisher shall make and subscribe a fresh declaration under section 7 before printing or publishing the newspaper, and the provisions of sub--section (1) shall apply to the fresh declaration and to any subsequent fresh declaration.
(3) Where a newspaper having been published is not published-
(i) in the case of a daily newspaper, for sixteen days in a calendar month,
(ii) In the case of a weekly newspaper, for two weeks in a calendar month,
(iii) in the case of a fortnightly newspaper, for one month,
(iv) in the case of a monthly newspaper, for two months,
(v) in the case of a quarterly newspaper, for six months, and
(vi) in the case of six monthly newspaper for one year,, the declaration made in respect of that newspaper shall become null and void, and the printer and the publisher shall make and subscribe a fresh declaration under section 7 before further printing or publishing the newspaper, and to every such fresh declaration the provisions of the two foregoing subsections shall, without prejudice to the provisions of this subsection apply.
(4) Where a newspaper does not belong to any of the categories mentioned in subsection (3) and the interval of its publication is intermediary between two successive categories mentioned therein, it shall be governed by the provisions of that subsection, as if it belonged to the less frequent category of the two.
(5) Nothing in subsection (1) or subsection (3) shall apply In the case of a printer and publisher who within the period stated in those subsections and applicable to the particular case, Shows to the satisfaction of the District Magistrate that the newspaper has not been or cannot be published for reasons which are beyond their control.
Explanation.-If a publisher fails to bring out any issue or issues of the newspaper as required by the periodicity mentioned in the declaration, and produces a combined issue, such combined issue shall for the purpose of this section be regarded as one issue irrespective of the serial number given on it."
Under subsection (3) of section 9 since the petitioners did not publish the Weekly papers, namely, "Punjab Punch" and "Zindagi" for two weeks in the calendar month of April and the Monthly "Urdu Digest" for the two months of May and June, their declarations became null and void, because they had also not, within the said period, shown to the satisfaction of the District Magistrate that the newspapers could not be publishes for reasons which were beyond their control.
7. Dr. Khalid Ranjha appearing on behalf of the Editor, Printer and Publisher of the "Punjab Punch" contended that section 9 of the Ordinance is bad inasmuch as it is repugnant to the grounds norm of Pakistan. While dealing with this contention it has to be first ascertained as to what is the grounds norm. It is an ideology, aim and the final object of the country and a nation. The Objectives Resolution of 1949 which inter alia provided the "the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed" has been held to be the grounds norm of Pakistan in Asma Jillani v. Government of Pakistan (PLD 1972 SC 139) and also in Zia-ur-Rahman v. The State (PLD 1972 Lah.382), (decided by the Full Bench of five Judges of this Court). Learned counsel contended that the Objectives Resolu--petition was a supra- Constitutional instrument, having validity and force as such, and in support of his submission relied on the judgment of Muhammad Afzal Zullah, J., in Zia-ur---Rahman's case. But this is a minority view. The majority view of the four learned Judges is that the Constitution was not to be subject to the Objectives Resolution and it could not be questioned on that ground. The Objectives Resolution has, moreover, been incorporated in the Preamble of the Interim Constitution of the Islamic Republic of Pakistan. The grounds norm incorporated, as it is, in the Preamble is not enforceable through the Courts of law. The majority view of the Fall Bench is that the Interim Constitution has been framed in the light of the ideology and the final object incorporated in the Objectives Resolution and that it does not offend against the ground norm in any manner whatsoever.
So long as the Interim Constitution was not framed it could be considered a guideline for the chosen and elected representa--tives of the people in framing the Constitution, but since the Constitution has been framed and it came into force on the 21st of April 1972, it can no longer be canvassed that the grounds norm of the Objectives Resolution can be given effect to by the Courts In disregard of the Interim Constitution or the law. The vines of the Constitution or the law cannot be determined with reference to the same. In Fazlul Quader Chowdhry v. Muhammad Abdul Haq (PLD 1963 SC 486) it was held "Thus the written Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each func--tionary should act within his respective sphere. No power can, therefore, be claimed by any functionary which is not to be found within the four corners of the Constitution nor can anyone transgress the limits therein specified." I asked the learned counsel if there was any judgment of any superior Court of the world whereby a Constitution might have been declared ultra vires on the basis of the grounds norm of that country. He frankly conceded that there was no decision to that effect. I am, moreover, clear in my mind that the grounds norm or the Objectives Resolution is not a supra- Constitutional instrument, and also that the Constitution is in no way subject to the same. The grounds norm, in my view, is a concept of Western Legal Theorists e which has its Importance only so long as the Constitution is not framed, or it operates when the country is in the occupation of a usurper, but it cannot be relied upon for challenging the provisions of a written Constitution, or to contend that a certain Constitutional provision is ultra vines the grounds norm. It is only, a basic ideology not actionable before the Courts.
8. It was next contended by the learned counsel that section 9 was violative of the Fundamental Right guaranteed by the Interim Constitution in its Article 16, which says : "Every citizen shall have the right to freedom of speech and expression. Subject to any reasonable restrictions imposed by law in the interest of the Integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence." The primary question for consideration is whether the contention of the petitioners, even if it may have some force, can be given effect to in these proceedings when the right to move the Court for the enforce--ment of certain Fundamental Rights, including the one involved herein, has been suspended.
The President in the exercise of the powers conferred by clause (3) of Article 139 of the interim Constitution declared by a Gazette Notification dated the 30th of April 1972 that "right to move any Court including the right to move the Supreme Court, vide clause (4) of Article 7 for the enforcement of the Fundamental Rights provided for in Articles 9, 12, 13, 14, 15, 16, 20, 21, 22 and 24 of the Constitution, and all proceeding pending in any Court for the enforcement of any of the said Rights, shall remain suspended for the period during which the said Proclamation is in force". In Abdul Baqi Baluch v. Govern--ment of Pakistan (PLD 1968 SC 313) it was observed by Hamoodur Rehman, J. (as he then was, now the Chief Justice of Pakistan) that "the third and last challenge posed to the validity of the Defence of Pakistan Ordinance is on the basis of the language of clause
(2) Of Article 6 of the constitution. This too is untenable, for, a long as the Fundamental Rights remain suspended, this question cannot be agitated in the Court. For, to declare the Ordinance invalid would be tantamount to enforcing a Fundamental Right, which cannot be done as long as the Presidents Order No. F. 24(1)/65-Pub, dated the 6th September 1965 and the 16th September 1965, are in force. Therefore, what cannot be done directly cannot be allowed to be done Indirectly."
The same view was taken in Ahdul Ghani v. Government of Pakistan (PLD 1968 Lah. 1244) and Khair Bakhsh v. State (PLD 1968 Quetta 62). In this view of the matter, the petitioners cannot invoke the Fundamental Right as provided for in Article 16 of the Interim Constitution.
9. Learned counsel, however, challenged the very Notification dated the 30th of April 1972 on the ground that it had been issued without a valid Proclamation of Emergency. He contended that the President, under clause (3) of Article 139, could, by an order, suspend the right to move the High Court or Supreme Court for the enforcement of the Fundamental Rights, as be did by the Notification dated the 30th of April 1972, only if he bad declared the Proclamation of Emergency under subsection (1) of Article 139 which be has not done Clause (1) of Article 139 is in the following terms :- "Notwithstanding anything in the last two preceding Articles, the Federal Legislature shall, if the President has declared by Proclamation (in this Constitution referred to as a 'Proclamation of Emergency') that a grave emergency exist whereby the security or economic life of Pakistan or any part thereof is threatened by war or internal disturbance or circum--stances arising out of any mass movement of population from or into Pakistan, have power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List, or to make laws, whether or not for a Province or any part thereof, with respect to any matter not enumerated in any of the Lists in the Fourth Schedule or to make laws, notwithstanding anything in any other provision of this Constitution, relating to the custody, management and disposal of the property of any person con--cerned in any mass movement as aforesaid. Provided that no Bill or amendment for the purposes aforesaid shall be introduced or moved without the previous sanction of the President, and the President shall not give his sanction unless it appears to him that the provision proposed to be made is a proper provision in view of the nature of the emergency."
Doubtless the President bad not declared- any Proclamation of Emergency after the Constitution came into force on the 21st of April 1972 but that should not make any difference for the reason that the Proclamation, of Emergency issued on the 23rd' November 1971, was continued under clause (8) of Article 139 which provided: "The Proclamation of Emergency issued on the twenty-third day of November 1971, shall be deemed to be a Proclamation of Emergency issued under this Article, and any law, rule or order made or purported to have been made in pursuance of that Proclamation shall be deemed to have been validly made. Learned counsel contended that it only validated the Proclamation of Emergency issued on the 23rd of November but it could not be a Proclamation of Emergency within the meaning of clause (1) of Article 139. I find the contention unten--able because if the Legislature had only intended to validate the Proclamation of Emergency issued on 23rd of November 1971, there was no need to do so by adding clause i8) to Article 139 for the simple reason that under Article 281(1) of the Constitu--petition all Proclamations made as from the 25th day of March 1969 were declared "to have been validly made by competent Authority".
If the contention of the learned counsel Is given effect to, the provisions of clause (8) of Article 139 become wholly redundant. It is a cardinal principle of the inter--pretation of statutes that the Legislature is presumed to have used every word to have a meaning and effect. To contend that clause (8) has been incorporated in the Constitution without being of any effect, is tantamount to attributing ignorance to its makers. In Abdul Aziz v. Province of West Pakistan (PLD 1958 SC (Pak.)
499) it was held by the Supreme Court that "a Constitutional provision must be interpreted, as befits an organic instrument, in the widest possible sense. It is not permissible to place narrow constructions upon provisions contained in a Constitution if the result be that thereby the validity of a statute is prejudiced. In all circumstances, the full scope and extent of the Constitutional provision must first be determined, and if the statute in question is capable of a construction which is conformable to the true meaning of the relevant Constitutional provision, then that construction should be accepted." Earlier, In re : Reference by the President (PLD 1957 SC (Pak.) 219) by relying on 11 Am. Jur. Constitutional Law, Article 55, it was observed by Muhammad Munir, C. J. "Another elementary rule of cons--truction of Constitutional instruments is that effect should be F given to every part and every word of the Constitution. Hence, as a general rule the Courts should avoid a construction which renders any provisions meaningless or inoperative and must lean in favour of a construction which will render every word opera--tive rather than one which may make some words idle and nugatory." His Lordship by relying on Article 53 of the same Constitutional Law, further observed that "the last rule which needs statement for the purposes of this case is that if there be any apparent repugnancy between different provisions, the Court should harmonize them if possible. The rules of construction of Constitutional law require that two sections be so construed, if possible, as not to create a repugnancy, but that both be allowed to stand, and that effect be given to each." In Khair Bakhsh v. State (PLD 1968 Quetta 62). It was observed: "It is a fundamental principle of the interpretation of Constitution that it should be so construed that no part of it should become superfluous, void or insignificant. In construing the provisions of a statute it is essential for a Court to give effect to the natural meaning of the words used therein, if they are clear and not admitting of any ambiguity."
Clause (8) of Article 139 is not only a validating provision It has clearly laid down that the "Proclamation of Emergency issued on the twenty-third day of November 1971, shall be deemed to be a Proclamation of Emergency issued under this Article." Doubtless, the Proclamation of Emergency issued on the 23rd of November 1971, was not issued under Article 139. But by virtue of this provision, it is now "deemed" to be a Proclamation under clause (1) of Article 139 of the Interim Constitution. The word "deemed" is defined in Stroud's Judicial Dictionary as: "When a thing is to be 'deemed' something else it is to be treated as that something else with the attendant consequences, but it is not that something else".
10. Learned counsel then argued that the Proclamation o! Emergency could be issued under clause
(1) of Article 139 only it a grave emergency existed whereby "the security or economic We of Pakistan or any part thereof is threatened by war or internal disturbance or circumstances arising out of any mass movement of population"; that without such a state of affairs existing, and the President coming to that decision, the Proclamation of Emergency could not be issued, and that being so clause (8), which provides that the Proclamation issued on the 23rd of November 1971, shall be deemed to be a Proclama--petition of Emergency issued under this Article "was not related to clause (1) of Article 139. The contention is untenable. In re: Levy Ex parte Walton (17 Ch. D 756), it was observed: "When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to." This observation was adopted with approval by their Lordships of the Supreme Court in Begum B., H. Syed v. Afzal Jahan Begum (PLD 1970 SC 29). It is thus by a Constitutional fiction that the Proclamation of 23rd of November 1971 is to be considered as one issued under clause (1) of Article 139. The position is made further clear in clause (9) of Article 139, wherein it is provided: "Proclamation of Emergency issued or deemed to have been issued under this Article shall not be called in question in any Court." The words "Issued" or "deemed to have been issued" are referable without any doubt respectively to clauses (1) and (8) of Article 139. Thus, in view of the provisions contained in clause (8), there was no need for the President to have issued a fresh Proclamation of Emergency under clause (1) of Article 139.
12. Learned counsel submitted that even if the Proclamation of 23rd of November 1971 Is deemed to be one issued under clause (1) of Article 139 ft had lost its efficacy on the 30th of April 1972, when an order under clause (3) was issued, for the reason that the circumstances under which the Proclamation of Emergency could be made did not exist at that time. It is not competent for the petitioners to question the validity of the Proclamation itself. It was held in Abdul Baqi Baluch v.
Government of Pakistan : "The next contention advanced on behalf of the appellant is that since clause (3) of Article 30 of the Constitution requires that the President shall, when he is satisfied that the grounds on which he has issued a Proclamation of Emergency have ceased to exist, revoke the Proclamation, the President was bound to do so as soon as hostilities ceased and the Tashkent Declaration was announced. If he has not done so, the appellant contends, the High Court should declare the Proclamation as revoked. This argument- is wholly misconceived, for, it is the President who has to be satisfied that the grounds on which he issued the Proclamation have ceased to exist.
It is not for the Courts to substitute their satisfaction for the satisfaction of the President. In any event, it cannot be said that merely because hostilities have ceased, the emergency is also at an end. This is a purely political question which is outside the competence of the Courts to decide for, the declarations of war and peace are within the exclusive competence of the executive Government of the country. In such matters the Courts speak in the same voice as the Chief Executive of the State, for, these are not questions which are amenable to judicial determination.
No Court can give a declaration that a state of war has ceased to exist when the Chief Executive does not say so." The view was armed in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), and it was observed at p. 35: "We have already in the case of Abdul Baqi Baluch upheld that we cannot go behind the emergency but I find it difficult to accept the conten--petition that the laws must be Interpreted differently during an emergency." It had earlier been held in Emperor v. Benoari Lal Sarma and others (AIR 1945 P C 48): "Section 72 does not require the Governor---General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance or at all and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists." The same view was taken in Emperor v. Benoari Lal Surma and others (AIR 1943 P C 36) and Bhagat Singh and others v. Emperor (AIR 1931 P C 111). The petitioners therefore, cannot invoke Fundamental Right No. 16 to challenge the vires of section 9 of the Ordinance.
13. It was next contended that clause (9) of Article 139 oust--ing the jurisdiction of the Court was against the directive princi--ples or the grand norm, because it interfered with the independence of the Judiciary and its exclusive jurisdiction to interpret the Constitution and the law. The contention based on grounds norm is untenable for the reason already given. I may, however, refer to Fazlul Quader Chowdhry v. Muhammad Abdul Haque wherein at page 539 it was observed : "It is no doubt true that the Courts are not above the Constitution and the source of their jurisdiction as well is the Constitution itself. I do not seek to claim for the Courts any higher jurisdiction, but I would venture to point out teat it is a cardinal principle that in every system of Government operating under a written Constitution the function of finally determining its meaning must be located in some body or authority and the organ of Government which is normally considered most competent to exercise this function is the Judiciary. This, is, of course, subject to the provisions of the Constitution itself which may well provide otherwise. In such event, however, the contrary provision must be either express or one which can be derived as a necessary implication of the provisions of the Constitution."
14. Learned counsel then alleged that the action of the respondents in entering the premises of the printing presses and seizing the newspapers was mala fide. It was also contended that the President and the Governor of the Punjab harboured malice against them because they had been publishing articles in their papers which were distasteful to them. They particularly referred to articles published in the issues of the "Punjab Punch" of January 6, January 30, February 13, February 20 and 27 and the like articles in "Zindagi" and "Urdu Digest" to say that on account of these publications the Governor and the Zonal Martial Law Administrator, out of sheer spite, issued Martial Law Order No. 259 bann--ing the publication of their papers in addition to initiating action against them under Martial Law Regulations 16-A and 89. It is also contended that the petitioners have again, after their release, published articles exposing the Government and it was on account of the malice and ill-will that the newspapers of the petitioners were seized.
The President, or the Governor, or any officer of the' Government, has not passed any order against the petitioners. It is by operation of law that their declarations have become null and void. In the absence of any order passed by any authority M annulling their declarations, the question of the President, the Governor, or any other officer of the Government, having acted mala fide does not arise. It was hold in Sai Muhammad v. West Pakistan Province (PLD 1958 SC (Pak.) 18): "The correct attitude on estimating the actions of Government is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established. It is, of course, only in a rare case that a question of good faith underlying a Government action can be raised with relevancy before the Courts which are most frequently concerned with the extent to which such actions are covered by the terms of statutory instruments." If the declarations of the petitioners had been annulled by the orders of the Government, I would have examined the question of mala fides, but since no such order ha been passed and the whole case depends on the interpretation of section 9 the same being whether or not the declarations, because of the failure of the petitioners to publish the newspapers within the period stated have become null and void, the allegation o mala fides in the context of the present case is not relevant.
I may, however, observe that the contention of the learned counsel that in Zia-ur-Rehman v. State (Writ Petition No. 403 of 1972) the Full Bench has held that their prosecution under Martial Law Regulations 16 (a) and 89 had been initiated on account of mala tides of the President and the Governor is not correct. Their Lordships of the Full Bench quashed the convic--petition on the basis of mala fides of the Presiding Officer of the Summary Military Court and not because of mala fides either on the part of the President or the Governor.
So far as the articles published in the "Punjab Punch" and referred to above are concerned, Muhammad Afzal Cheema, J. Observed in Ziaur Rehman's case that the "Punjab Punch" appeared "to have completely turned its back to the code of Journalistic ethics. I very much doubt if the use of such vein and strain as runs through most of their writings even though motivated by sincerest considerations of patriotism and national interest can be justified by tiny standards. Most of the articles apparently contain scurrilous personal attacks on the President couched in intemperate and even obscene language a- times or verging on pornography. No doubt, in Islam, even the highest fin the land, is not immune from criticism yet it has to be kept within proper and reasonable limits so as not to give a licence to every disgruntled person to scandalize the President who is not more is at least entitled to as much legal protection against defamation as any other citizen of the State. The highly flavoured and piquant expressions often employed by sensation mongering section of the press to attract public attention and feed baser instincts though speaks, of the rather doubtful literary merit of the writing yet it certainly tends to offend against the law by giving a highly coloured version of the facts." In the same case, Muhammad Afzal Zullah, J. Also observed that "some of the issues of the `Punjab Punch', which are on one of files of this Court, prima facie contained objectionable language which journalistic trend in our society cannot be approved and rather has to be condemned; and if there are some other journals which indulge in similar practice, my views would not be in any way different."
The freedom of speech and of the press are fundamental' rights which are safeguarded. The right of free speech is, however, not absolute one and it does--not give a licence to any person to Indulge 9n utterances which are calculated to defame any person muchless the President of a country who" is not only to maintain the situation of law and order in the country but is also to have an image fin all the countries of the world to project his country for an honourable place in the comity of nations.
15. It was next contended by Dr. Khalid Ranjha that the copies of the "Punjab Punch" were seized without an order of the District Magistrate who under subsection (2) of section 37 could empower a person not less than the rank of a Sub-Inspector of Police to do so and that the search in the petitioners' press was conducted by an Assistant Sub-Inspector of Police. Learned Advocate- General has placed on record the warrant of search Issued by the District Magistrate on the 29th of July 1972 whereby he authorized Mumtaz A.I Khan, Station House Officer, Gawalmandi Police Station, Lahore, under subsection (2) of section 37 of the Ordinance, to enter upon and search Packall Printers, Farhat Manzil, Patiala Grounds, Lahore. The memo. Of recovery placed on the record by the petitioners themselves bears the signatures of Mumtaz All Khan. In the circumstances, the; contention is devoid of force.
Learned counsel for the other petitioners contended that the District Magistrate had issued only one warrant under section 37(2), but the Police Officers conducted more than one search in pursuance thereof. This contention is also controverted by the learned Advocate-General who contended that the District Magistrate issued fresh warrants of search each time the search was to be conducted. He has placed on record photostats of the search warrants to substantiate his contention. In view of the fact that valid search warrants had been issued under section 37(2) of the Ordinance by the District Magistrate to search the premises of the petitioners, I find no force in this contention.
16. Learned counsel next contended that the declarations of the petitioners did not ipso facto become void under subsection (3) of section 9 of the Ordinance on their failure to publish their respective newspapers within the period stated in the said subsec--petition (3) and that the District Magistrate knew for a fact that it was impossible for the petitioners to have published the newspapers and he, therefore, should have passed an order under subsection (5) of section 9 ibid. I have already reproduced the provisions of section 9, but for convenience of reference, the provisions of subsection (3)(ii)(iv) and of subsection (5) are extracted below :- "(3) Where a newspaper having been published is not published- (ii), in the case of a weekly newspaper, 'for two weeks in a calendar month.
(iv) in the case of a monthly newspaper, for two months, the declaration made in respect of that newspaper shall become null and void, and the printer and the publisher shall make and subscribe a fresh declaration under section 7 before further printing or publishing the newspaper, and to every such fresh declaration the provisions of the two foregoing subsections shall, without prejudice to the provisions of this subsection apply.
(5) Nothing in subsection (1) or subsection (3) shall apply in the case of a printer and publisher who within the period stated in these subsections and applicable to the particular case, shows to the (satisfaction of the District Magistrate that the newspaper has not been or cannot be published for reasons which are beyond their control."
It is admitted that the petitioners did not publish the Weekly Papers, namely, "Punjab Punch", "Zindagi" for two weeks in the calendar month of April and similarly failed to publish the same for two calendar weeks each in the months of May, June and July 1972 and that the Monthly "Urdu Digest" was also not published for the months of May and June 1972. It is conceded that the petitioners as printers and publishers did not apply within the period stated, i.e., in the month of April in case of the two weekly papers and in the months of May and June in case of the Monthly "Urdu Digest", to the District Magistrate to show to his satisfaction that the newspapers could not be published for reasons which were beyond their control. On the plain reading of the statutory provisions, it is clear that if a newspaper is no published for the period stated in subsection (3) of section 9, its declaration becomes null and void. No order is needed in such a case. The provisions of this subsection operate automatically. If one wishes to save himself from the operation of the said provision, the only course open to him is to apply under subsec--petition (5) of section 9 to the District Magistrate. He may, if satisfied on such application or representation, hold that the declaration under subsection (3) has not been rendered null an void.
17. Learned counsel then argued that the words "null and void" as employed in subsection (3) of section 9 should be attached the meaning as "voidable at the election of the party not at fault." In other words, his contention was that subsection (3) of section 9 could operate only in cases where the omission to publish was voluntary, but since the petitioners were restrained by Martial Law Order No. 259 to edit, print and publish the newspapers, this section would have no bearing. He submitted that the District Magistrate and the Government knew that the petitioners had been arrested under Martial Law Regula--tions 16-A and 89, on the 5th of April 1972, and that by operation of paragraph 4 read with the Schedule of Martial Law Order No. 259 dated the 6th of April 1972, they were restrained from publishing their respective papers. Subsection (3) has been couched in unmistakable language. The words being clear and unambiguous, it is the duty of the Court to give effect to them according to their plain meaning neither adding to nor subtracting from them. If authority is needed for this proposition reference may be made to Corporation of the City of Victoria v. Bishop of Vancouver Island (AIR 1921 PC 240) ; King-Emperor v. Dahu Raut (AIR 1935 P C 89) ; Commis--sioner of Income-tax, Madras v. Buckingham & Carnatic Company Ltd., Mad as (AIR 1936 PC 5) ; Babulal v. Emperor (AIR 1938 PC 130) ; Karnalaranjan v. Secretary of State (AIR 1938 P C 281) and Narayana Swami v. Emperor (AIR 1939 P C 47). If it were possible to take another view of the subsection one might have taken under the circumstances, but the meaning has to be given to every part of the language employed. The words are plain and can bear only one meaning, and, therefore, the Court cannot base its construction solely on results which might ensue. It was so held in A. W. Meads v. Emperor (AIR 1945 FC 24). It is, moreover, the best established principle of law that interpretation should not, where the language is clear, be influenced by extraneous considerations, such as hardship (See General Accident Fire & Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim (AIR 1941 PC 6) or, that giving effect to the words leads to inconvenience or injustice as held in Babulal v. Emperor and Attorney-General of Alberta v. Attorney-General of Canada and others (AIR 1943 P C 76).
The intention of the Legislature is also manifested in sub--section (5) of section 9 as to the scope of subsection (3). It is provided therein that subsection (3) shall not apply if the printer and publisher applies within the period stated to the District Magistrate to give reasons for non- publication. The word "within the period stated" leave no room for doubt to thin that if the printer and publisher does not make an application within a calender month in the case of a weekly newspaper, within R two months in the case of a monthly newspaper, etc., his application, after the expiry of that period, will not be competent, because his declaration to publish the newspaper already became null and void.
18. Learned counsel next submitted that the District Magistrate knew for a fact that the petitioners by virtue of Martial Law Order No. 259, which came into force on the 6th of April 1972, could not publish the newspaper ; that they had been arrested on the 5th of April 1972 and were not released till 27th of June 1972, and that, therefore, he should have himself passed an order under subsection
(5) of section 9.
Doubtless the fact. That the petitioners were lodged in Jail from 5th of April till the 27th of June 1972 would have been a valid ground for them to have applied under subsection (5) of section 9, but since they had not moved any application it cannot be said that the District Magistrate ha failed to exercise a jurisdiction vested in him by law. However, the language of subsection (5) of section 9 does not, in any way, impose an obligation on the District Magistrate to pass any order suo motu.
He has to do so on an application moved by a printer and publisher. The contention is untenable.
19. It was then contended by the learned counsel that on account of Martial Law Order No. 259 the petitioners could not publish the newspapers and, therefore, the declarations, by opera--petition of law, stood suspended and the question of their having become null and void did not arise. To deal with this question it is necessary to refer to the relevant provisions of Martial Law Order No. 259 dated the 6th of April 1972. Paragraph 4 of the Order laid down : "The editors, printers and publishers shall not edit, print or publish the periodicals". The word "periodical" as defined in clause (c) of paragraph 2 of the Order, means "any newspaper mentioned in the Schedule appended to this Order and includes any part thereof". The Weekly "Punjab Punch", the Weekly "Zindagi" and the Monthly "Urdu Digest" of Lahore, are mentioned at serial Nos. 1, 2 and 3 respectively, of the Schedule attached to the Martial Law Order. It was further provided in paragraph 11 that the "Government may lift the ban Imposed under paragraph 4 in respect of all or any of the periodi--cals as and when it deems fit." It is clear from these provisions that there was only a ban on the Editors, Printers and Publishers to edit, print and publish the periodicals and the declarations, under the said order, were neither cancelled nor suspended. The Government, under paragraph 11, could lift the ban and on lifting of such a ban, the bar, created under paragraph 4 for the Editors, Printers and Publishers to publish the newspapers would come to an end. If the declarations had been suspended or cancelled under the said order, there would have been a provision in the order itself for their revival.
Since there is no such revision, it is clear that the declarations notwithstanding Martial Law Order No. 259 remained intact. If the petitioners could not, on account of the ban, publish their papers, they should have applied to the District Magistrate, and if the latter, not--withstanding the circumstances of their case had passed an adverse order, the same would have been justiciable.
20. Learned counsel argued that the petitioners having been lodged in Jail could not apply under subsection (5) for two reasons, firstly that they had to appear personally, and secondly that they had not been afforded the necessary facilities to communicate with the District Magistrate in this connection. It is nowhere contemplated in subsection (5) of section 9 that the printer and the publisher should appear personally before the District Magistrate in order to explain the cause for their'' failure to publish their newspaper. The petitioners, in the circumstances, could apply in writing stating the reasons for their failure to publish their papers, or they could approach the District Magistrate through some representative or agent.
The only point, therefore, which needs examination is whether it was beyond the petitioners' control while in the jail, to have communicate with the District Magistrate to explain their inability to publish their newspapers. Under rule 548 of Chapter XXIII of the Punjab Jail Manual, a prisoner can address communications to "Government" "or any other Government officer in their official capacity with a view to the redress of a grievance"-Vide rule 555 of Chapter XXIII ibid, the Jail authorities are under a statutory obligation to supply writing materials, including service post-cards, to any prisoner who is permitted to write a letter. It is thus abundantly clear that If a U prisoner intends to address a letter to any Government functionary in his official capacity there is no restriction on him to do so.
In the instant case, it is not the case of the petitioners that they had, in fact, addressed any communication to the District Magistrate informing him that since they were lodged in Jail it was not within their control to publish their respective newspapers. On the other hand Dr. Khalid Ranjah and Sh. Saeed Akhtar, learned counsel for the petitioners have conceded that the petitioners old not take any steps to communicate with the District Magistrate at any time from 21st of April 1972 till they were released from the Jail.
21. Sh. Saeed Akhtar, learned counsel appearing on behalf of the editors, printers and publishers of Weekly "Zindagi" and Monthly "Urdu Digest" admitted that the Weekly "Zindagi" had not been published for two weeks in a calendar month, and also that "Urdu Digest" had also not been published for two months. He also admitted that they had not approached the District Magistrate, within the period stated in subsection (5) of section 9, to save themselves from the rigorous of subsection (3) of section 9. He did not invoke the principle of grounds norm or Article 16 of the Interim Constitution of the Islamic Republic of Pakistan to challenge the vises of section 9. He, however, adopted the other arguments of Dr. Khalid Ranjha, and further contended (a) that the provisions of subsection (3) of section 9 are directory and not mandatory and; therefore, in a case where the printer and publisher has not committed any default or was not negligent, his failure to publish the newspaper, being for, reasons beyond his control, does not render the declaration null and void under subsection (3) of section 9(b) that it is only the declaration which becomes null and void under subsection (3) of section 9, but it does not render the authentication of the declaration which is made under section 12 to be void, and (c) that even if it becomes void, the publisher can submit a fresh declaration under section 7 and without the authentication may publish the newspaper, Mr. Muhammad Akhtar, Advocate, appearing in Writ Petition No. 1138 of 1972 adopted the argu--ments of Sh. Saeed Akhtar.
So far as the first contention is concerned, I am unable to accept that the provisions of subsection
(3) of section 9 are directory and not mandatory. The words "shall become null y and void" used therein leave no room for doubt as to the scope of this provision because on failure to publish the newspapers within the period stated, the declarations become null and void. There is no question of a direction or mandate in this behalf. The provision operates automatically. Learned counsel relied on Rana Muhammad Jamil v. Punjab Road Transport Board, Lahore (PLD 1957 Lah. 1), where it was held "Generally speaking, when the provision charges some public authority with a duty and no express or clearly implied indication is given by the Legislature that the failure to conform to the letter of the law would entail the drastic consequences of invalidation and further such invalida-- petition would result in unmerited injustice or serious general incon--venience to members of the public or other persons to be specially affected, the public or those persons having no effective control over the actions of the authority concerned, the provision is construed as carrying a directory rather than a mandatory connotation." It is clear from the tenor of subsection (3) that no order is to be passed by any authority and, therefore, the question of any member of the public to suffer on account of an action of a public authority does not arise. It is only when some order is passed under a provision which is couched in the imperative form, that tile question may arise whether the provision is directory of mandatory. Here subsection (3) of section 9 applies without the intervention, or an order, of any public authority.
So far as the contentions that only the "declaration" becomes null and void under subsection (3) of section 9, and that a person by making a fresh declaration may publish the newspaper because the "authentication" is already intact, are concerned, the same do not arise in these proceedings because none of the petitioners has put in any fresh declaration.
I, however, do not see eye to eye with the learned counsel for the reason that although it is said in subsection (3) that "the declaration made in respect of that newspaper shall become null and void, and the printer and the publisher shall make and subscribe a fresh declaration under section 7", but the subsequent part of the same paragraph, viz., "to every such fresh declaration the provisions of the two foregoing subsections shall, without prejudice to the provisions of this subsection, apply" is significant, and since subsection (1) is applicable the authentication is necessary even of such a declaration. It is laid down in subsec--petition (1) that "if a newspaper in respect of which a declaration has been made under section 7 is not published within three months of the date on which such declaration is authenticated under section 12, the declaration shall become null and void". The Declaration bas to be submitted under section 7. Under sub-- section (1) of section 9 the newspaper has to be published within three months of the date on which such declaration is authenticated. Thus the authentication of such a declaration is also necessary.
It may also be noted that the declaration subscribed under section 7 has to be authenticated under section 12 by the signature and official seal of the District Magistrate before whom the said declaration is made. If the declaration becomes void under subsection (3) of section 9 it is inconceivable that the authentication under section 12 would still remain operative. The authentication being of the declaration, when there is no declara--petition, the authentication must also come to an end. It loses its existence when the declaration becomes null and void.
Therefore, if a person submits a declaration under section 7, after his previous declaration has become null and void, it must again be authenticated in terms of section 12 without which a printer and a publisher cannot publish a newspaper, in view of the provisions of section 5 of the Ordinance, which clearly lays down that "no newspaper shall be printed or published except in conformity with the provisions of this Part and unless there subsists an authenticated declaration in respect thereof".
I may also observe that the Legislature was quite conscious of the facts and circumstances under which a declaration may become null and void and those under which it could be annulled. A declaration becomes null arid void under subsection (3) of sec--petition 9 for reasons already given, and it also becomes null and void under section 11 if at any time the printer or the publisher leaves Pakistan for a period exceeding three months and he also does not inform in writing the District Magistrate about It. The declaration of a printer can be annulled by the Government under section 24(3) of the Ordinance in certain given circumstances. Section 9(3) and section 11 operate automatically while action under section 24(3) is by the act of the Government.
22. Before parting with the case, I would like to observe that subsection (3) of section 9 of the Ordinance does not operate permanently so as to debar a printer and a publisher from subscribing and making a fresh declaration. They are not left without a remedy inasmuch as under subsection (3) of section 9 Y itself, they can still "make and subscribe a fresh declaration" and their case cannot, fn any way, be prejudiced, in view of the said provisions of subsection (3), by the fact that their declaration stands annulled by operation of law.
23. For the foregoing reasons, I find no merit in these petitions which are hereby dismissed with no order as to costs.