' MUHAMMAD AFZAL LONE, J.--Mr. Muhammad Rafiq Mir is the Printer and Publisher of Urdu Daily "Musawat". When the Martial Law was in force, on 12-12-1979, Martial Law Administrator Zone 'A', in pursuance of the powers vesting in him under paragraph 2(b) of the Martial Law Regulation No,49, prohibited the publication of the Daily and use of "Musawat" Printing Press, with immediate effect.
The petitioner did not agitate in the matter, during the currency of the Martial Law but after issuance of "proclamation of withdrawal of Martial Law" published in the Gazette of Pakistan, Extraordinary, Part-I, dated 30th December, 1985, he sent letter dated 12th January, 1986, (An nexure 'C') to the District Magistrate, Lahore, informing him that on the enforcement of the Constitution, the prohibition on the publication of the Daily and the use of the printing press, under Martial Law Regulation No,49, ceased to be operative. It was stated that during this interregnum, machinery of the Press was auctioned under the orders of the Banking Court, the staff of the Daily left the job and thus, it was beyond the control of the Printer and Publisher to bring the paper in circulation. The petitioner further solicited the administrative orders of the District Magistrate in the matter. This letter was followed by another letter (dated 11-2-1986 (Annexure 'D'), wherein the petitioner sought from the District Magistrate, a clarification of the declaration of the Paper. It seems that after receipt of letter Annexure 'C', the learned District Magistrate, sought advice of the Director-General Public Relations, on the petitioner's application and when the communication Annexure 'D' was served on him he issued reminder Annexure 'E' to the Director-General. As there was no response from the District Magistrate, the petitioner filed Writ Petition No,2833/86, in the course of hearing whereof the learned Advocate-General, placed before the Division Bench, seized of the case, District Magistrate's Letter No,PCPB/9470 dated 17-5-1986 (Annexure 'A') operative part whereof runs as under:-- "The Declaration of Urdu Daily " Mu sawaat" Lahore, was cancelled and the use of Musawaat "Printing Press", Lahore, was prohibited under MLR-49. The orders passed under MLR are protected under Article 270-A of the Constitution of Islamic Republic of Pakistan.
' In view of the above and as per advice of the DGPR, the previous Declarations in respect of Urdu Daily "Musawaat" Lahore and "Musawaat Printing Press", Lahore, have become void."
' The petitioner thereupon withdrew the said writ petition and filed the instant one, to assail the validity of the District Magistrate's decision Annexure 'A'.
2. We have heard Mr. Abdul Sattar Na jam, Advocate for the petitioner and the learned Advocate- General for the respondents. In the parawise comments, on the writ petition, the stand taken up by the learned District Magistrate was:-- "that the declaration of the Urdu Daily Musawaat, Lahore, was cancelled and the use of "Musawaat"
Printing Press, Lahore was prohibited, under MLR-49. The orders passed under MLR are protected under Article 270-A of the Constitution of Islamic Republic of Pakistan and that in view of the aforesaid legal position, the previous declarations in respect of Urdu Musawaat, Lahore, and Musawaat Printing Press, Lahore had become void The order dated 12-12-1979 issued by the Martial Law Administration for all intents and purposes amounted to closing down the publication of the newspaper as also the use of the printing press resulting in the cancellation of the declaration thereof."
3. On behalf of the petitioner, their learned counsel vehemently refuted the correctness of the legal position adopted by the learned District Magistrate in the parawise comments. He argued that Martial Law Administrator's order (Annexure B) was merely preventive in nature; it was issued for the purpose of Martial Law and remained alive only as long as Martial Law was in force. In his submission the effect of Article 270-A was that MLR-49 was validated and the orders made in pursuance of the power derived from the said Regulation, were immune from challenge but since the Regulation was not saved under the Chief Martial Law Administrator's Order No,107, on the lifting of the Martial Law it stood cancelled and the order Annexure 'B' which was preventive in character could not survive after the annulment of the said Regulation. He contended that Article 270-A did not at all stand in the petitioner's way, and that this Article and the order Annexure 'B' were totally misconstrued by the governmental authorities. The learned counsel pointed out that para No,4 of MLR-49 provided for the consequences of violation of order Annexure 'B', inasmuch as for its contravention the press could be forfeited to the Provincial Government and the declaration made and subscribed under the Press and Publications Ordinance also cancelled. It was submitted that the petitioner never contravened the order of the Martial Law Authorities; the occasion for taking any punitive action in terms of para. 4 ibid, therefore, never arose and thus, there was no question of cancellation of the declaration and closure of the press. The learned counsel then drew our attention to a news item published in the Daily "Jang" dated 22nd June, 1986 (Annexure F) and expressed a grievance that the then Minister for Information made a public announcement that the Daily "Musawaat" shall have to obtain fresh declaration.
4. There is much force in the argument of the learned counsel for the petitioner. Indeed as laid down in Full Bench judgment of this Court in the case of Malik Ghulam Mustafa Khar v. Pakistan and others (PLD 1988 Lah.49) clause (1) of Article 270-A validates all legislative measures, made between 5th July, 1977 and the date when the said Article was enforced. Further, sub-Article (2) gives protection to the orders made or purported to have been made, in exercise of the powers derived from the legal measures aforesaid. It thus follows that by virtue of Article 270-A, M.L.R.-49 was validated and the order An nexure 'B' protected. But we wonder how upon the facts of the case, the impugned decision can be supported on the rectitude of Article 270-A. There is no dispute that the order of the Martial Law Authority was not contravened by the petitioner and thus, no punitive action under paragraph 4 of M.L. R.-49 was taken against the Daily. It is in paragraph 3 of M.L.D .107 that all Martial Law A Regulations and Orders, other than those specified in the Schedule to the M .L.0 ., stood cancelled on issuance of proclamation of withdrawal of Martial Law. It is correct that under paragraph 4 of the M.L.O., the cancellation of Martial Law Regulations did not affect their previous operation and liability or punishment incurred thereunder. But the learned counsel for the petitioner has brought out true position that M.L.R.-49 was not saved and thus, on the lifting of Martial Law, it ceased to exist; and that the, order dated 12th December, 1979 warranted only a preventive measure and thus it did not endure beyond the period Martial Law Regulation remained in vogue. Even the learned Advocate-General has not questioned the correctness of these premises.
5. Section 9 of the Press and Publications Ordinance, 1963 deals with the effect of non-publication of the newspaper. Its subsection (3) lays down that in the case of a Daily, if the newspaper is not published for 16 days in a calendar month, the declaration made in respect thereof shall become null and void. But in subsection (5) it is stated that the aforesaid penalty is not attracted if the printer and publisher of the newspaper within the period specified in subsection (3) shows to the satisfaction of the District Magistrate that the publication of the newspaper is arrested for the reasons beyond his control. In his submissions before us, the learned Advocate-General did not follow the reasoning adopted by the respondents in the parawise comments but anchored his arguments wholly in Section 9 and contended that as the petitioner failed to give any intimation to the District Magistrate in terms of subsection (3) within 16 days of the issuance of the Martial Law Administrator's directive dated 12th December, 1979, the declaration became null and void.
According to him, the decision reached by the District Magistrate was in consonance with the law and thus fully justified. He heavily relied upon the Government of the Punjab v. Dr. Ijaz Hasan Qureshi (PLD 1985 SC 28). In that case the Printers and Publishers of 'Zindgi' and two other periodicals were arrested under MLRs, 16-A and 89 on 5-4-1972. On the next day the publication of these three periodicals was banned under MLO 259 which is pari materia with MLR-49. On 25th July, 1972, the Director, Public Relations informed the publishers that on account of their default to show cause to the satisfaction of the District Magistrate that the publication of the periodicals, was in terms of subsection (3) beyond their control, under subsection (5) of section 9, the declarations in question automatically stood annulled. Before the Supreme Court, the printers and publishers advanced an argument that as they were under punitive and preventive detention they were not obliged to comply with the requirements of section 9.
' The moment they were released from the prison, they started the publications and in any case the situation of impossibility with which they were confronted absolved them from showing cause to the satisfaction of the District Magistrate. But the Supreme Court did not accept this explanation and maintained: - "Martial Law Order 259 issued on 7th of April, 1972. It banned the printing and publication of all the three periodicals. It prohibited the respondents from printing or publishing it. It also gave the power to Government to lift the ban imposed as and when "it deems fit". Article 280(3) of the Interim Constitution repealed this Martial Law Order as from 21st April, 1972. The prohibition was there for a fortnight only. It did not in any manner either preclude the publication of these periodicals after 21st April or prevent the respondents from showing to the satisfaction of the District Magistrate their continued inability to publish the same."
6. The learned counsel for the petitioner has criticised the orders of the District Magistrate also on another ground that he was not given any opportunity of being heard, before passing the same and therefore, he could not explain his position and show cause that his failure to publish the newspaper was caused by inevitable circumstances. After examining the available record in the light of the contentions of the parties, we do not feel inclined to entertain the learned Advocate- General's arguments founded on section 9. It seems to us that this plea has been raised for the first time in the High Court. The parawise comments amply demonstrate that in the opinion of the learned District Magistrate the operation of M.L. R.-49 itself resulted in cancellation of the declaration to which blanket coverage has been given by Article 270-A. The impugned order does not give any indication that section 9 was present to the mind of the learned District Magistrate much less to examine and process the petitioner's case on the basis of this provision of law.
Evidently, the petitioner could not explain his case to the Tribunal below in the context of subsections (3) and (5) of section 9.
7. A statutory obligation was cast on the learned District Magistrate to satisfy himself that the Daily could not be published for the reasons on which the Publisher had no control. He had to pass a speaking order manifesting application of mind in accordance with C law, to the issue before him.
But while examining the question of subsistence of the declaration the only provisions of law attended to by him were Martial Law Regulation 49 and Article 270-A. We have already found that his this approach is wholly illegal. The petitioner's learned counsel has referred to us his letter Annexure 'C' to state that it constitutes an application to the District Magistrate within the meaning of subsection (5) of section 9. He further endeavoured to differentiate the Supreme Court's judgment in Government of the Punjab v. Dr. Ijaz Hussain Qureshi, but we need not scrutinise these arguments, for, the learned District Magistrate never took notice of these points, not to speak of application of mind objectively thereto. E Such an illegal decision can be corrected under Article 199 of the Constitution.
8. It is discernible from the impugned order and the District Magistrate's letter Annexure 'E' that before taking the decision he obtained the advice of the Director-General Public Relations. In this connection Mr. Najam has raised another formidable objection and argued that the learned District Magistrate did not apply his own independent mind to the controversy before him and acted under the dictates of the Director-General, Public Relations.
9. There should be no doubt that when a public functionary has to be satisfied with regard to the existence of a certain thing and exercise his discretion, he must not fetter the discretion but apply his own independent mind to the merits of the case before him and act in an objective manner. But the learned District Magistrate seems to have dealt with the petitioner's case under the compulsive influence of advice of the Director-General, Public Relations. Though it is not possible to gauge the extent of this influence but it is certain that his mind was sufficiently swayed by the advice. He was required to act fairly and render a decision with an open mind but his order unfortunately creates an impression that he acted under the advice, not authorised by the statute; thus imposed fetters on the exercise of his authority and stifled the declaration unlawfully. Needless to state that right of freedom of Press is guaranteed by Article 19 of the Constitution. All instrumentalities of State are, therefore, supposed to act in a manner which may be conducive to promotion of the object of the Constitution. We find that there is nothing on the record to show that the Minister's statement Annexure 'F' came to the notice of the learned District Magistrate or otherwise it dominated over the exercise of his discretion. It, therefore, cannot have any bearing on the validity of the impugned order. But as regards the advice of the Director-General Public Relations, it cast limitation on the decision making authority of the District Magistrate and invalidates the impugned order. In the circumstances of the case we are constrained to hold that there is no proper disposal of the motion made by the petitioner vide Annexure 'B'.
' For all these reasons this writ petition is accepted, the impugned order declared to have been passed without lawful authority and of no legal effect. The motion made by the petitioner vide his letter Annexure 'B' shall be treated as pending, to be disposed of afresh expeditiously and in accordance with law. The petitioner shall be at liberty to place his view point before the learned District Magistrate within the framework of law. The parties are left to bear their own costs.
Or der accordingly.