' T A NZIL-UR-REHMA N, J.--This is a Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by one Abdullah son of Ramzan.
2. The facts giving rise to this petition, as alleged, are that the petitioner, his father Haji Muhammad Ramzan and brother Liaqat Ali reside in one and the same house as a joint family. The licences for VCR and TV sets for commercial purpose valid upto June, 1988 have been issued by the Government of Pakistan to Shoukat Ali and Haji Muhammad Ramzan, the brother and father of the petitioner respectively. As averred in the petition, all the said persons are jointly running business in the said hotel excepting Shoukat Ali. The petitioner is running the TV and VCR business for exhibiting the Pakistani films for the customers on the basis of the said licences. It is averred that the respondents have been harassing the petitioner, from time to time by taking actions under several provisions of the Pakistan Penal Code, which were challenged by his father and brother being subject-matter of several Constitutional Petition Nos. D-101/85, D-104/87 and D-30/88 (Muhammad Ramzan v. Superintendent of Police, Sukkur). The said petitions were, however, dismissed as withdrawn. It is further averred that the respondents having been annoyed due to filing of the aforesaid Constitutional Petitions, continued to harass the petitioner's father and the brother. His brother, Liaqat Ali was challaned in the Court of Additional City Magistrate, Sukkur in Criminal Case No,166 of 1987 under section 292 P.P.C. Alleging therein that he was exhibiting blue film on VCR in his hotel. He was later on acquitted under section 249-A Cr.P.C. The petitioner was also challaned under section 292 P.P.C. In the Court of Assistant Mukhtiarkar and Second Class Magistrate but he was also acquitted under section 249-A Cr.P.C. Lastly on 21-1-1988 at 2.30 P.M, the police raided the hotel of the petitioner, which is adjacent to his house, and unlawfully dragged the petitioner and forcibly took away the aforesaid licenced VCR and TV and also the of Pakistani Picture "Hong Kong Ke Sholey"( and the petitioner was challaned in Crime No,5/88 of 'C' Section Police Station, Sukkur which led him to file the above petition praying for the following reliefs:-- "The petitioner therefore humbly prays that the Hon'ble Court may be pleased to order that in view of the Article 18 r/w Article 4 of the Constitution of Pakistan 1973, he is entitled to do the business of exhibiting the films on V.C.R. It the present premises of hotel or elsewhere without any obstruction and malacious prosecution started from time to time by the respondents and other police agencies.
(b) to order that the prosecution initiated on F.I.R. No,5 of 1988 dated 21-1-1988 of 'C' Section Police Station, Sukkur against the petitioner by Respondent S.H.O. 'C' Section Police Station, Sukkur is illegal, without jurisdiction, in contradiction to the legal provisions which are in conflict with the fundamental rights of petitioner and as such may be declared as without lawful authority.
(c) to pass any other order that may be deemed proper in the circumstances of the case.
(d) to award cost of the petition."
3. Learned counsel submitted that the petitioner has got a fundamental right to do the business and trade of exhibiting films under Article 18 of the Constitution, under the licence obtained by him from the Government of Pakistan. It was further submitted that the petitioner could only be dealt with according to law, in case there has been any violation of the provisions of section 18 of Motion Pictures Ordinance, 1979, he cannot be challaned under section 292 P P C. The action, according to him, on the part of the respondents amounts to obstructing the petitioner from carrying on his business which is a violation of Article 18 of the Constitution. The respondents have thus acted in excess of their jurisdiction by stopping the profession & trade lawfully allowed to the petitioner by the Constitution, the counsel added.
4. At the outset, it was noticed that the petitioner's father had also filed a Constitutional Petition No,30/88 against as many as 18 respondents including Government of Sind, Senior Superintendent of Police, Sub-Divisional Police Officer, S.H.O. 'A' Section, S.H.O. 'B' Section, S.H.O., C Section, S.H.O., P.S Abad, Inspector C I A against the same crime No,5 of 1988 which was dismissed in limine by order dated 13-3-1988 passed by this Court, which reads as under:-- "The grievance of the petitioner is that he is being continuously harassed by the respondent police officials by registration of various cases against the petitioner. However, the main grievance of the petitioner now is that a case under F.I.R. No,5 of 1988 has been registered against the ,son of the petitioner namely Abdullah. The petitioner, consequently, prays ' for quashing of such proceedings which are presently pending before the S.D.M. Sukkur. He has also prayed for restraining the respondent police officials from harassing the petitioner further.
Reference has also been made by the petitioner to some cases, which have earlier been registered against the petitioner but were later disposed of under section 249-A, Cr.P.C.
' We are afraid, this petition is completely misconceived. As far' as the cases earlier registered against the petitioner are concerned, they were disposed of by the concerned Courts on their own merits. As far as the present proceedings against the petitioner's son namely: Abdullah are concerned., first of all no quashment of the same can be sought through a Constitutional petition as there is an adequate remedy provided under the Cr.P.C. For the purpose. Furthermore, admittedly, the proceedings presently pending are not against the petitioner but against his son who is not a petitioner before us. In any case, the petitioner cannot be an aggrieved person as far as the proceedings pending against his son are concerned. As regards the contention of the petitioner that he is being continuously harassed by the respondent police officials, it may be pointed out that the allegations require taking of evidence which is not possible in the exercise of jurisdiction vesting in this Court under Article 199 of the Constitution. Consequently, we find no force in the petition and the same stands dismissed in limine."
5. In view of the dismissal of the earlier petition No,30/88, Mr. Muhammad Hanif Mangi, learned counsel for the petitioner was asked as to how the second petition on the same grounds and prayer was maintainable. In reply to it, he made a statement to withdraw the second prayer mentioned in clause (b). He, however, insisted on the first prayer.
6. Mr. Syed Zawar Hussain Jafferi, learned A.A.-G. Took a preliminary objection as to the maintainability of the petition as the persons in whose names the licences were issued are not before this Court. Moreover, the said licences have since expired, the relief cannot be granted. The petitioner's counsel, with permission of the Court, produced the renewed licences but had no reply to meet the objection raised by the learned A.A.-G. That the persons in whose favour the licences have been issued or renewed are not before this Court. Learned A.A.-G. Further submits that the licences have been issued for the places mentioned therein whereas the films were being exhibited at the hotel which is a place other than the places mentioned in the licences. Counsel for the petitioner submits that the hotel is situated on the same place which has been mentioned in the licences. We are afraid, this being a pure question of fact cannot be gone into in a Constitutional Petition. It is however, manifest from the VCR licence issued in the name of Shoukat Ali that the address mentioned is House No,C-575 Water Works Queens Road, Sukkur whereas address shown on T.V. Licence is plot No,571, near Municipal Road, Sukkur. There is no mention of a hotel there.
These two licences appear to have been issued for two different places, and unless V.C.R. And T.V.
Under the said two licences are used together the film canno be exhibited on the T.V. Therefore, there seems to be force in the submission of the learned A.A.-G. That the aforesaid two licences have been issued for two different places and not the hotel where the film was being exhibited on the T.V. Set.
' There seems to be an attempt on the part of the petitioner to mislead the Court. He does not appear to approaching the Court with clean hands. We would have dismissed the petition on that ground alone but in view of the several petitions repeatedly filed by the counsel appearing in the above petition, as referred to above, and the point being of general importance, we feel inclined to consider the plea of the petitioner's alleged right to run his business, exhibiting films and decide the petition on merits.
7. As for the petitioner's alleged right of exhibiting films" any where", it seems necessary to examine, in some detail, the relevant provisions of several enactments relating to exhibition of films, on commercial basis, and matters connected therewith, namely;
(1) The Cinematograph Act, 1918,
(2) The Wireless Telegraphy Act, 1933,
(3) The Wireless Telegraphy (Possession) Rules, 1933.
(4) The West Pakistan Cinematograph Rules, 1962.
(5) The Television Receiving Apparatus (Possession and Licensing) Rules, 1970.
(6) Motion Pictures Ordinance, 1979.
(7) The Censorship of Films rules, 1980.
(8) The Video Recording or Reproducing Apparatus (Possession and Licensing) Rules, 1984.
8. The Cinematograph Act, 1918: In this Act, unless there is anything repugnant in the subject or context, "cinematograph" includes any apparatus for the representation of moving pictures or series of pictures; and "place" includes also a house, building, tent or vessel (Section 2). The licensing authority having power to grant licences under this Act is the District Magistrate; provided that the Provincial Government may, by notification in the official Gazette, constitute for the whole or any part of a province such other authority as it may specify in the notification to be the licensing authority for the purposes of this Act. Under Section 5, the licensing authority is not supposed to grant a licence under this Act, unless, inter alia, it is satisfied that:-
(a) the rules made under the Act have been substantially complied with; and
(b) adequate precautions have been taken in the place in respect of which the licence is to be given to provide for the safety of person attending exhibitions therein.
(2) A condition shall be inserted in every licence that the licensee will not exhibit in or permit to be exhibited, such place any film other than a film which has been certified as suitable for public exhibition by an authority constituted under the Censorship of Films Act, 1963, and which exhibited, displays the prescribe mark of that authority and has not been altered or tampered with in any way since such mark was affixed thereof.
' Section 6 provides for punishment for contravention of this Act and Rules made thereunder.
Sections 8 and 9 give powers to Provincial Government to make rules under the Act and power to exempt.
9. The Wireless Telegraphy Act, 1933: It regulates the possession of Wireless Telegraphy apparatus in Pakistan. It defines "Wireless Telegraphy Apparatus" as any apparatus, appliance, instrument or material used or capable of use in wireless communication and includes any article determined by rule made under section 10 to be wireless telegraphy apparatus but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under section 10 not to be wireless telegraphy apparatus. Section 3 provides that save as provided by section 4, no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act. Section 6 provides for offence and penalty. Section 6 also provides that whoever possesses any wireless telegraphy .Apparatus in contravention of the provisions of section 3 shall be punished and on conviction the apparatus may be confiscated. Section 7 gives the power of search to a Magistrate. Section 10 gives power to the Central Government to make rules.
10. The Wireless Telegraphy (Possession) Rules, 1933, under rule (2)(b) 'Dealer' means any person, who deals in or manufactures for gain wireless telegraphy apparatus defined in the Wireless Telegraphy Act, 1933. Rule 4 provides for application for a licence. Rule 9 provides that the licences issued under these rules shall not be transferable. Rule 11(1) provides that every person licensed under these rules shall keep the wireless telegraphy apparatus possessed by him at the premises specified in that behalf in the licence. Rule 13 provides that every dealer shall maintain a register of wireless telegraphy apparatus and shall cause to be entered therein-- - (a) the details of all such apparatus in his possession together with the dates on which the apparatus came into his possession and the sources from which he obtained it;
(b) the name and address of every person to whom he sells or otherwise transfers a complete wireless set with the date and other particulars of transaction, and, except as provided in rule 12, the particulars of the licence specified in that rule.
' Rule 15 provides for penalty for breach of these rules, other than a breach which is an offence punishable under section 6 of the Act.
11. West Pakistan Cinematograph Rules, 1962: These Rules provide in detail, for the matters relating to cinematograph and exhibition of films.
12. The Television Receiving Apparatus (Possession and Licensing) Rules, 1970 have been framed under Wireless Telegraphy Act (XVII of 1933). The "Television Receiving Apparatus" has been defined in Rule 2(i) of the above Rules as any apparatus which is capable of being used for receiving the telecasts, of the Corporation either by itself or with the addition of electric power, aerials, valves or similar other devices, and includes any appparatus which is temporarily incapable of being so used by reason of a defect in its component parts or in the electric wiring. A person being in possession of a Television Receving Apparatus (holder) may keep the same on payment of prescribed fee and obtain a licence for keeping such apparatus.
13. Motion Pictures Ordinance, 1979: This Ordinance extends to the whole of Pakistan. It provides for the censorship of films and the regulation of exhibition of films by means of cinematographs.
Section 2(c) of the said Ordinance defines "Cinematograph" as "any apparatus for the reproduction of moving pictures or series of pictures". Section 3 provides for a Censorship Board.
Section 4 provides that "no person shall make or arrange a public or private exhibition of a film by means of cinematograph unless the film has been duly certified for public exhibition by the Board.
Section 13 provides for licensing of places for 'exhibition of films and says that "save as otherwise provided in Chapter III, no person shall give a public exhibition by means of- cinematograph elsewhere than in a place licensed under this Ordinance or otherwise than in compliance with any condition and restriction imposed by such licence. Section 18 provides for penalties and punishments against a person who exhibits or causes or permits to be exhibited in any place or abets the exhibition of any film, which has not been certified by the Board and fails to comply with the provision of section 5 regarding certification of films. Section 20 empowers the Federal Government which "may, by order in writing, exempt, subject to such conditions and restrictions as it may impose, any film or class of films or cinematograph exhibition or class of cinematograph exhibitions from all or any of the provisions of the said Ordinance or Rules made thereunder".
14. The Censorship of Films Rules, 1980: These Rules have been made by the Federal Government under section 19 of the Motion Pictures Ordinance, 1979. The Rules define "licensed place" in respect of which a licence has been granted under subsection (1) of section 13 for giving of public exhibition by means of cinematograph, certified under the Ordinance and the Rules made thereunder.
15. The Video Recording or Reproducing Apparatus (Possession and Licensing) Rules, 1984: These Rules have been framed under section 10 of the Wireless Telegraphy Act, 1933 by the Federal Government. Under these rules 'dealer' means any person who deals, in video recording or reproducing apparatus or manufactures or assembles or imports such apparatus for sale. [Rule 2 (c)]. 'Licensing Authority' means the Chairman of the corporation or a person authorised by him in this behalf [Rule 2(g)] and "video recording or reproducing apparatus" means any apparatus which is capable of being used for recording or reproducing image and sound of a television programme or motion picture or series of motion pictures either by itself or with the addition of electric power, aerial valve or similar other device, and includes any apparatus which is temporarily incapable of being so used by reason of defect in its component parts or in the electric wiring. [Rule 2(h)] Rule 3(2) provides that a holder shall make an application for licence immediately after he comes into possession of a video recording or reproducing apparatus, and the validity of the licence issued to him shall commence from the date he comes into such possession and shall expire at the end of the year as specified by the holder in the application. On the expiry of the period of its validity, the holder shall have the licence renewed in such manner and within such period as may be specified by the Licensing Authority and shall continue to do so as long as he has the video recording or reproducing apparatus in his possession. Rule 3(3) provides that every application under sub-rule (1) shall be accompanied by a fee--
(a) if the holder is a person who is not a dealer and does not maintain the video recording or reproducing apparatus for commercial purposes, two hundred rupees per year; and
(b) if the holder is a dealer or a person who maintains video recording or reproducing apparatus for commercial purposes,, four hundred rupees per year; ' Rule 4 prescribes certain forms for issuing licences on the said forms. A licence is to be issued in Form-III to a holder other than a dealer, and in Form II to a dealer. Rule 5 provides that a licence issued under these rules shall not be transferable. Rule 7(1) inter alia, provides that a licence shall authorise the licensee to keep one video recording or reproducing apparatus in the building specified therein. Rule 10(1) provides that every dealer shall maintain a register of video recording or reproducing apparatus and shall cause to be entered therein the following information and such other information as may be required by the Licensing Authority from time to time, namely:--
(a) the details of all video recording or reproducing apparatus in his possession together with the dates on which such apparatus comes into his possession and the source from which he obtained them; and
(b) The name and address of every person to whom he sells or otherwise transfers a video recording or reproducing apparatus with the date of the transaction.
' Rule 13(2) provides for cancellation of licence issued under these rules to any person for breach of these rules or an offence punishable under section 6 of the Act
16. In the light of the various foregoing provisions of the several enactments relating to exhibition of film the contention of the counsel that the petitioner being a licence holiter of T.V. And Video- cassette Recording apparatuses for "Commercial purpose" is entitled to run his "business of exhibiting films" is entirely misconceived. Although the term "commercial purpose" has not been defined in either of the Acts or Rules, referred to above, but the definition of "dealer" for the sake of 'interpretation of "commercial purpose" may be invoked in aid which provides that a "dealer" is a person who deals in video-recording or reproducing apparatus or manufactures or assembles or imports such apparatus for sale. Thus, the commercial purpose may mean the manufacturing, assembling and importing of television and video-recording or reproducing apparatus for sale.
Therefore, by no stretch of imagination the scope of the commercial purpose can be extended to running the business of exhibiting films to the public on the basis of the licences issued to the persons named therein in derogation of the provisions laid down in the other statutes, particularly, the provisions of Wireless Telegraphy Act, 1933, Motion Pictures Ordinance, 1979 and Rules made thereunder.
17. Reference may also be made to the case of Ghulam Haider v. S.H.O. And others partly reported in August Part of PLD 1988 Quetta 52. A copy of the full judgment was obtained through Additional Registrar of this Court from Baluchistan High Court. On going through the said judgment, we find ourselves in respectful agreement with the following observations of the learned Judges of the Division Bench: "Another aspect meriting the attention is that by its very definition in rule 2(h) the apparatus is defined as one used for recording or reproducing sound of T.V. Programme or motion pictures or series of motion Pictures. One interpretation can be that only such programmes and motion pictures can be recorded and reproduced as are telecast on television but permission to record and produce such programmes in any case does not mean that they are allowed public exhibition of other films, and thus defeat provisions of other laws."
18. Our considered view therefore is that a licence issued for use of apparatus for recording or reproduction cannot be treated as a general licence for public exhibition of films etc in utter disregard to the relevant provisions of other Acts, Ordinances and Rules referred hereinabove. The petitioner or for that matter the licence-holders with the petitioner, on the basis of the abovesaid licences, cannot be allowed to run their business of exhibiting films illegally and to the apparent loss of public exchequer.
19. Counsel has also referred to Article 18 of. The Constitution 1973, which reads as under:-- "18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade, or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government or by a Corporation controlled by any such Government of any trade, business, industry or service, to the exclusion, complete or partial of other persons."
20. The right guaranteed by the above Article is not absolute. It can be subjected to reasonable restrictions and regulations as may be prescribed by law. The right is not unfettered. Reliance placed by the counsel on Article 18 of the Constitution is entirely misconceived.
21: These are the reasons for our short order dated 11-10-1988 dismissing the petition in limine with costs at the conclusion of the hearing.