IRSHAD HASAN KHAN, J.- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the order dated 3.3.1991 passed by the District Magistrate, Sialkot, whereby cinema licence of the petitioner for exhibiting the film in Nishat Cinema, Katchery Road, Sialkot; has been suspended for a period of two months.
2. The background of the case is that on receipt of numerous public complaints, a drive against obscenity and exhibition of blue prints in cinema houses was launched under the directions of the District Magistrate, Sialkot.
3. A report was called for from the District Magistrate on the averments made in the writ petition.
The District Magistrate Sialkot, in his report dated 16.3.1991 stated as under:- "On receipt of numerous public complaints, a drive against obscenity and exhibition of blue prints in cinema house was launched in the district. All the Magistrates were authorized vide order No.ALC/163 dated 6.1.1991, under rule 80 of the Punjab Cinematograph Rules 1984 (Copy placed at Annx-A) to check the Cinema Houses. On 16.12.90, Ch. Liaqat Ali City Magistrate, conducted a raid on Nishat Cinema Sialkot and found blue prints being exhibited therein. The reel of blue prints was taken into possession on the spot by the Raiding Magistrate\nd a case vide FIR No.327/90 dated 16.12.90, was got registered against the Management/Operator of the Cinema namely, Muhammad Ishaq was arrested on the spot and sent to the judicial lock up. A show cause notice for the suspension of the Cinema Licence under rule 109 of the Cinematograph Rules 1984 was duly issued to the licensee/management. Accordingly, owner of the Cinema submitted her written reply in which the allegations were denied and it was stated that the prints taken into possession was not obscene. Accordingly, District Magistrate ordered that the said blue prints be exhibited in the presence of Assistant Commissioner (Sadar) Sialkot and a representative of Film Censor Board in order to ascertain whether the prints were obscene or otherwise. On 2.3.91, the same prints were taken from the double lock and re-exhibited in the same cinema in the presence of Assistant Commissioner (Sadar) Sialkot, representative of the Censor Board and Manager of the Cinema. It was jointly reported by Assistant Commissioner (Sadar) and Mr. Masood Elahi Film Inspector, Central Board of Film Censors, that the said reel was found containing blue print (intercourse sequences) of about seventeen minutes duration (copy of the report is placed at Annx-B).
Accordingly, record was carefully considered by the undersigned and explanation tendered by the Licence Holder was also perused. The report of the representative of the Central Board of Film Censors was also examined and keeping in view all the facts of the case, impugned order under rule 109 of the Punjab Cinematograph Rules 1984, was passed whereby the Cinema was closed for two months."
4. Learned counsel for the petitioner, Sh. Ziaullah, contended that the District Magistrate, Sialkot, under rule 80 of the Punjab Cinematograph Rules, 1984 (hereinafter called the rules) authorised Ch. Liaqat 4-li City Magistrate to enter a place to be used for the purpose a cinematograph exhibition in order to satisfy himself that the provisions of section 13 of the Ordinance, the rules framed thereunder and the conditions of the licence are being complied with. It is submitted that this letter was issued on 6.1.1991 and is valid upto 31.12.1991, but the alleged action took place on 16.12.1990 i.e. 21 days prior to issuance of letter of authority in favour of Mr. Liaqat Ali City Magistrate. On these premises it was contended that fake raid was conducted on the basis of pending litigation with respondent No.3.
5. The writ petition was admitted to a regular hearing and operation of the impugned order was suspended on the sole ground that the occurrence took place on 16.12.1990 but the District Magistrate in exercise of his powers conferred on him under section 80 authorised the City Magistrate to inspect the premises of the cinema house on 6.1.1991. It may be pointed out that the learned Advocate- General submitted that at pre-admission stage, a wrong document of authorization by the Deputy Commissioner/ District Magistrate, Sialkot, in favour of the City Magistrate was annexed with parawise comments. It was argued that the actual authorization letter was annexed with the written statement as R/I according to which under the authority letter NoALC/18544 dated 3.9.1990, the District Magistrate/Licensing Authority, Sialkot, authorised Mr. Liaqat Ali City Magistrate, Sialkot, under rule 80 to enter a place to be used for the purpose of cinematograph exhibition, in order to inspect that the provisions of section 13 of the Ordinance, the Rules framed thereunder and the conditions of the licence are being complied with. This authority letter was valid upto 31.12.1990, whereas the raid was conducted on 16.12.1990. This is also specifically stated in the written statement on behalf of the respondent vide para 4 (b) which is supported by an affidavit of Muhammad Iqbal, Licence Clerk, D.C. Office, Sialkot.
6. Mr. Ziaullah learned counsel for the respondent has objected to the authority of the said document. I have, however, perused the relevant despatch register in which the letter in question has been duly entered. Even otherwise presumption of regularity is attached to official acts. It am, therefore, inclined to hold that the District Magistrate did issue the letter of authority in favour of Ch. Liaqat Ali Chaudhry, City Magistrate, Sialkot, on 3.9.1990, as contended by the learned Advocate General. It may be observed that the impugned order is open to appeal before the Commissioner of the Division, but since the vires of the rule are under challenge, I propose to dispose of the writ petition on merits.
7. Sh. Ziaullah, learned counsel for the petitioner contended that rule 80 of the Punjab Cinematograph Rules, 1984 contained in Chapter III of the rules deals with a situation where the premises are to be inspected for the purpose of compliance with the rules before the grant or renewal of the licence and it has nothing to do with a situation where the allegation against the cinema holder is that an uncertified film had been exhibited in his/her cinema and thereby the provisions of the Ordinance, the Rules framed thereunder and the conditions of licence had been violated. This rule is ultra vires of section 8 of the Ordinance. By virtue of sub-section (4) of section 8 it is only the Board which can authorise by an order in writing such person as it may deem fit for such area as may be specified in the order. Sub-section (5) of section 8 of Ordinance also provides that the Board or any person authorised by in this behalf or the District Magistrate could depute only a police officer not below the rank of an Inspector to enter in a place licensed for exhibition of film in which there is reason to believe that the Him has been exhibited, raid it and seize the film and projection equipments. The authorisation within the meaning of sub-section (5) of section 8 of the Ordinance must be preceded by the belief that the film has been or is being exhibited in contravention of the Ordinance, the rules framed thereunder or the conditions of the licence. It is contended that in the present case, there is no such order passed by the District Magistrate to show that at the time of authorising Mr. Liaqat Ali Chaudhry such a belief was entertained by the District Magistrate. In this view of the matter, it was contended that the criminal case registered on the basis of raid proceedings conducted by Mr. Liaqat Ali Chaudhry and on the basis of which the impugned order had been passed are nullity in the eye of law. It was also argued that the Magistrate took along with himself certain police officials of his own and not under the authority of any of the specified officers and that too of the rank lower than the rank of Sub Inspector. In support of the contention reliance is placed on Saboor Khan vs. District Magistrate, Gujranwala (PLD 1981 Lahore 495). In the precedent case rule 111 (1) of the Punjab Cinematograph Rules, 1976, was found to be inconsistent with the provisions of the Ordinance N0.XLIII of 1979 on the following reasoning:-- "A reference back to sections 13 and 18 of the Motion Pictures Ordinance would show that whereas the power of revocation of licence is given to a District Magistrate under section 18 (4) as a delegate of the Licensing Authority the action can be taken only after conviction is recorded by a competent Court.
I6. It is thus evident from the above, that while the District Magistrate, may inspect or cause a cinema to be inspected, yet he being not the Licensing Authority or its delegate, cannot exercise authority conferred on him under rule 11 (1). Para 11 above shows that no power to grant a licence has been delegated to him by the Provincial Government, under section 13 of the Motion Pictures Ordinance, 1979. Thereafter, though he has the power to authorise any officer to inspect any cinema in his district, under rule 81 yet he cannot himself revoke or suspend a licence under rule 111 (1), for breach of any rule or from the power of revocation delegated to him under section 18 (4).
8. The controversy raised in this petition turns on the interpretation of certain provisions of the Ordinance and the rules made thereunder. It, therefore, seems appropriate to briefly survey the Motion Pictures Ordinance, 1979 (hereinafter called the Ordinance). It has been promulgated to provide for the censorship of films and the regulation of the exhibition of film by means of cinematographs, and for matters connected therewith or incidental thereto. The Censorship Board is constituted under section 3 for the purpose of examining and certifying films for public exhibition.
Section 4 prohibits exhibition of uncertified films and lays down the manner for seeking a certificate. Section 5 relates to certificate of films. Section 6 lays down principles of guidance in certifying films. Section 7 provides for appeals in the matter of refusing to grant a certificate or granting only a restricted licence or directing the applicant to carry out any excisions. Section 8 provides for a power to suspend exhibition of films in certain cases and enumerates the authorities or officers to do so. Sub-section (1) of section 8 empowers the Board to suspend the exhibition of the film for such period as may be specified in the order if it has reasons to believe that a film is being exhibited in contravention of any of the conditions or the certificate granted in respect thereto under section 5. Sub-section (2) empowers the District Magistrate to suspend the exhibition of the film for a period not exceeding one month in case any film which is being publicly exhibited and is likely to cause breach of peace. Sub-section (3) provides that where an order is passed undersection (1) or sub-section (2) in respect of a film, the same shall be deemed to be uncertified film during the period the order remains in force. Sub-section (4) provides that for the purpose of inspecting the exhibition of films and the proper enforcement of the provisions of the Ordinance relating to such exhibition, the Board may authorise such persons as it may deem fit for such area as may be specified in the order. Sub-section (5) provides that "where a film in respect of which no certificate has been granted under this Ordinance is exhibited or a film certified as suitable for restricted public exhibition is exhibited otherwise than as certified, or a film is exhibited in contravention of any of the other provisions of this Ordinance, any police officer not below the rank of Inspector may, upon a report in writing made by the Board or by a person authorised by it in this behalf or under the orders of the District Magistrate, enter any place licensed for the exhibition of films in which there is reason to believe that the film has been or is being exhibited search it and seize the film and projection equipment." Under subsection (6) an order passed under sub- sections (X) and (2) together with a statement of reasons thereof is to be forwarded to the Federal Government. Section 9 invests revisional power with the Federal Government to call for record of any proceeding in relation to any film which is pending or has been decided by the Board. Section 10 relates to information and documents to be given to the distributors and exhibitors with respect to certified films. Section 11 empowers the Federal Government or the Board for requiring any film to be exhibited before it or before any person specified by it in this behalf. Section l2 provides that vacancies, etc shall not invalidate its proceedings. Section 13 relates to licensing of place of exhibition of films. Sub-section (1) provides that no person shall give a public exhibition by means of cinematograph elsewhere than in a place licensed under the Ordinance or otherwise than in compliance with any conditions and restriction imposed by such licence. Sub-section (2) provides that the authority having power to grant licence under the Ordinance, hereinafter referred to as the licensing authority, shall be the Provincial Government. By virtue of the proviso to sub-section (2), the Provincial Government may by notification in the official gazette for the whole or any part of the province such other authority as it may specify in the notification to be the licensing authority for the purpose of Chapter III relating to regulation of exhibition by means of cinematograph. Sub- section (3) provides that the licensing authority shall not grant a licence unless the rules made under Chapter III have been complied with an adequate precautions have been taken in regard thereto. Sub-section (4) provides that subject to the foregoing provisions of section 13, the licensing authority may grant a licence under this chapter to such applicant as it deems fit and on such terms and conditions and subject to such restrictions as it may determine. Sub-section (5) provides that decision of the licensing authority shall not be invalid mainly by reasons of existence of a vacancy or defect in the constitution of the said authority. Section 14 relates to directions given by the Federal or Provincial Government as to screening of documentaries etc. Section 15 provides that the Federal Government may delegate all or any of the powers exercisable by it to such authority or person as may be specified in the notification. Under section I6 certain persons are deemed to be public servants. Section 17 relates to bar of legal proceedings. Section 18 relates to penalties and procedure in respect of contravention of the provisions of the Ordinance or the rules made thereunder or of the conditions and restrictions upon or subject to which a licence has been granted under the Ordinance. Section 19 empowers the Federal Government to make rules for carrying out purpose of the Ordinance. Section 20 empowers to Federal Government to grant certain exemptions. . Section 21 repeals the Cinematograph Act (No.11 of 1918) and the Censorship of Films Act (XVIH of 1963) and saves orders, proceedings, actions etc. Undertaken under the provisions of the said Act if not consistent with the provisions of the Ordinance.
9. In exercise of the powers conferred by section 19 read with subsection (4) of section 13 of the Ordinance, the Government of Pakistan framed Punjab Cinematographic Rules, 1984.
10. Rule 80 Provides that:- "The Licensing Authority or any officer authorised by him in this behalf may, at any time, enter a place which it or he has been reasons to believe is being used or is intended to be used for the purpose of cinematograph exhibition, in order to satisfy itself or himself that the provisions of section 13 of the Ordinance, the Rules framed thereunder and the conditions of the licence? Are being complied with."
11. Rule 109 relates to suspension or cancellation of licence and reads as under:-- "Suspension or cancellation of licence.- (1) The District Magistrate may at any time, for reasons to be recorded in writing, revoke or suspend a licence granted by a licensing authority for any breach of these rules or the conditions of the licence; provided that a hearing is afforded to the cinema management before passing such orders.
Provided further, that the licensee may within thirty days of the communication of such decision to him, appeal against it to the Commissioner of the Division whose decision shall be final.
(2) The District Magistrate may issue such directions or instructions to the licensee as may be considered necessary to prevent any obstruction, inconvenience, annoyance, risk, danger or damage to the premises or for the maintenance of public safety and public order.
(3) In the event of any out break or apprehended outbreak of an epidemic, the District Magistrate may, after consulting the District Health Authorities direct:
(a) the total closure of any licensed premises for specified number of days:
(b) a reduction in the scale of accommodation prescribed for licensed premises under rule 17 or 97 as may be applicable; and
(c) the adoption of special measures for the disinfection of the licensed premises, including spraying and fumigation."
12. There is no force in the argument that rule 80 deals with inspection of the cinema premises only for the purpose of compliance of the rules before the grant or renewal of licence. A bare perusal of rule 80 shows that the Licensing Authority or any officer authorised by it is competent to inspect a place which is being used for the purpose of cinematographic exhibition or is intended to be used for the said purpose to ensure that the provisions of section 13 of the Ordinance, the rules framed under the Ordinance and the conditions of licence are being complied with. The wording used in rule 80 is clear and unambiguous and by no stretch of imagination it can be held that rule 80 does not deal with a situation where the allegations is that the conditions of the licence are being violated. This rule is intra vires of section 13 (4) of the Ordinance and is in no way violative of the provisions of section 8 of the Ordinance, which deals with a different subject matter. Under section 8 (1), the Board is empowered to suspend the exhibition of a film in respect of which certificate has been granted by it under section 5 or contravention of any of the conditions subject to which it has been certified. The District Magistrate is also competent to suspend the exhibition of a certified film for a period of not exceeding one month if any such film which is being publicly exhibited is likely to cause breach of peace. Here the impugned action has not been taken against the petitioner under section 8 (2) of the Ordinance, but for violation of the conditions of the licence, which is covered under rule 109 and suffers from no invalidity merely because certain police officials also accompanied the Raiding Magistrate. Be that as it may, even in terms of section 8 (5) of the Ordinance, any person authorised under the orders of the District Magistrate can enter any place licenced for the exhibition of film in which there is reasons to believe .That the Him has been exhibited in contravention of any of the provisions of the Ordinance. Here the District Magistrate under rule 80 authorised the City Magistrate, to conduct surprise raid as he had reason to believe on receipt of numerous public complaints that obscene films and blue prints were being exhibited in the cinema houses in the District. Viewed from this angle as well rule 80 is intra vires of section 8 of the Ordinance.
13. The case of Saboor Khan (supra) does not help the petitioner. The basis of the said decision was that no power to grant a licence had been delegated to the District Magistrate by the Provincial Government under section 13 of the Ordinance and, therefore, he had no power to suspend it but was competent to revoke it only upon conviction of the licensee under section 18 (5) of the Ordinance. The judgment in the precedent case was delivered on 2.5.1981. Subsequently, vide notification dated 14.3.1983, the District Magistrate of the District has been specified as Licensing Authority in respect of his District for the purposes of Chapter III of the Ordinance. Clearly, the District Magistrate on the basis of this delegation in the capacity of a Licensing Authority has now been invested with the powers and jurisdiction to suspend or cancel the licence if the licensee commits breach of the rules or any of the conditions of the licence.
14. There can be hardly any dispute that under section 21 of the General Clauses Act, 1897 and section 20 of the West Pakistan General Clauses Act, 1956, the authority that has the power to make an order has the power to. Undo it subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual such an order cannot be withdrawn or rescinded to the detriment of those rights. Refer Pakistan v.
Muhammad Himayatullah Farukhi (PLD 1969 SC 407). Here the District Magistrate is clothed with the power to grant/renew a licence and therefore, by necessary implication has power to suspend or cancel it on breach of any of the rules or the conditions of the licence. It is an admitted fact that the licence of the petitioner was renewed by he District Magistrate, Sialkot. This being so, he was fully competent to suspend the same for any breach of the rules or the conditions of the licence after providing an opportunity of being heard to the cinema management, for such period as he may deem fit. It cannot be disputed that the petitioner under the licence granted to her was not permitted to exhibit blue or obscene films in the Islamic Republic of Pakistan which came into being to enable the Muslims to order their lives in the individual and collective spheres in accordance with the teaching and requirements of Islam as set out in the Holy Quran and Sunnah.
The same view was taken in Ibrar Asghar v. District Magistrate, Gujrat (1984 CLC 3361), which I respectfully follow. The relevant portion reads thus:- The District Magistrate in capacity of a Licensing Authority was possessed of the powers and jurisdiction both to suspend or cancel licence if the licensee proved to have committed breach of conditions governing continuance of licence or had in any manner violated Rules Authority having power to grant licence was also possession of powers to suspend and revoke licence subject to establishment of conditions rendering suspension or cancellation necessary Licence under schedule of conditions was not permitted to put on screen an uncertified film."
15. Sh. Ziaullah next relied on Shahid Javid Malik v. Board of Intermediate and Secondary Education (PLD 1980 Lahore 176), to contend that the impugned order has been passed without holding an inquiry and without giving an opportunity of being heard to the petitioner and therefore, the same was violative of the principles of natural justice. The contention is devoid of any force. A show cause notice was issued to the petitioner on 1,1.1991 whereby an opportunity was granted to her to explain her position as to why her licence be not suspended for exhibiting blue prints in a cinema, which were taken into possession as a result of surprise visit on the cinema premises on 16.12.1990. The licensee denied the allegation and took the plea that the prints taken were not obscene.
Consequently, the disputed prints were re-exhibited in the presence of the Manager of the petitioner cinema and it was found that it contained blue prints. It, therefore, cannot be said that sufficient opportunity of being heard was not afforded to the petitioner and the rule of natural justice was denied in any manner. Be that as it may, an adverse finding of fact on this question has been recorded by the District Magistrate and the same is not open to challenge in these proceedings. The case of Shahid Javid Malik (supra), does not help the petitioner. It relates to punishment for unfair means at the examination. The grievance in that case was that the candidate not having been shown any material at the time of so-called personal hearing could do nothing more but to state that he had nothing to say in the matter. The Board of Intermediate and Secondary Education took the plea that the material was shown to him. The learned Single Judge observed "this is a disputed question of fact and I will not make any further comment on it. But one thing is certain that in spite of the petitioner having made a plea of total denial, the Discipline Committee did not, nor it Js claimed, hear the Superintendent in support of the three-line report he had made while filing the form". Here the films was not only re-exhibited, but the petitioner was provided an adequate opportunity by the District Magistrate to defend her case. The material place before this court does not show that the petitioner made a request to the District Magistrate for the supply of copy of the joint report submitted by the Assistant Commissioner (Sadar) Sialkot and the Inspector of the Central Board of Films Censor and the same was declined.
16. It is next contended that the entire proceedings were conducted mala fide, in that, respondent No.3 was inimical towards the petitioner. I am afraid the petitioner has not been able to establish this plea in these proceedings. The vague allegations by the petitioner do not satisfy the test of mala fide laid down in the case of Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151).
17. Now' I turn to the contention that the power of revocation given to a District Magistrate under section 18 (4) of the Ordinance as a delegate of the Licensing Authority, the action can be taken only after conviction is recorded by a criminal court. Suffice it to say that the District Magistrate has not passed any order of revocation of licence under section 18 (4) on the basis of conviction but suspended the licence in the exercise of his power under rule 109, which was competently framed by the Governor of the Punjab in the exercise of the powers conferred on him by section 19 read with section 13 (4) of the Ordinance. Needless to say that section 18 occurs in Chapter IV of the Ordinance, which creates offences, provides penalties for such offence and prescribed the procedure for the trial thereof but in no way controls the provisions of rule 109 which envisages departmental action against the holder of a licence for breach of the rules or conditions of the licence. The power vesting with the Licensing Authority under sub-section (4) of section 18 of the Ordinance is in the nature of additional penalty which may be enforced after conviction, but does not control the jurisdiction of the Licensing Authority to suspend or revoke the licence as a result of departmental proceedings initiated against the licensee under rule 109.
For these reasons I have come to the conclusion that the District Magistrate, Sialkot, acted in accordance with law by suspending the licence of the petitioner for two months vide impugned order dated 3.3.1991. Even otherwise in the facts and circumstances of this case, I am not inclined to exercise my discretionary constitutional jurisdiction in favour of the petitioner.
The result is that the writ petition is dismissed with costs of Rs.5000/-. The period during which the operation of the impugned order remained suspended vide interim order dated 20.3.1991 passed by this court during pendency of the writ petition, shall be excluded while computing the period of two months in terms of the impugned order.