' The petitioner was a member of the Senate of Pakistan on the day the Martial Law was proclaimed on 5th of July, 1977. He hold degrees of M.A. And Bachelor of Laws. He was a Post Graduate from the Institute of Social Studies the Hague, the Netherlands. He was a poet and an author and amongst other of his literary works the following was the literary composition of the petitioner:--
(i) Sat Gowachay Lok (Seven Lost Persons)
(ii) Ik Maray Banday Di Kahani (Story of a deadman)
(iii) Wangaar (The Challenge)
(iv) Kanso Wailey Di (The intimation of time)
2. A news item appeared in daily Pakistan Times, Lahore in its issue dated 8-6-1978, the source being, Associated Press of Pakistan that the aforesaid books were forfeited by the Punjab Government under section 39 of the West Pakistan Press and. Publications Ordinance, 1963 as the books contained obscene material. The petitioner got issued a notice through his counsel to Secretary, Home Department, Government of the Punjab, Lahore on 11-6-1978 which was replied to by Home Secretary, Government of the Punjab, Lahore on-17-6-1978 and the extracts of the alleged obscene excerpts from the books were supplied to the petitioner who challenged the action of the Government through the present petition.
3. The books were printed and published by Ali Aziz Art Press Lahore. Ali's Printing Press, Liberty Market, Lahore and Ashraf Press, Lahore. The following para. In the legal notice got issued by the petitioner is relevant:-- "That neither my client nor the printer nor for that matter the publisher of 'the aforesaid books have been served with any notice or information regarding the particulars of the allegedly offending matter in the said books. My client-has learnt all the same that on instructions of your department book sellers and news agents are being advised to desist from the sale of my client's books. It needs no gainsaying that this is an infringement of the right of my client's' freedom of expression.
He disputes both the criterions as well as the concepts that you niay have put to use. Since, however, my client is wholly unaware of the measure or yardstick of 'obscenity' that you may have purported to apply, he requires you to specify the particulars of the matter that allegedly offends the provisions of section 39 of the aforesaid Ordinance.
' I might hardly add that my client is a Poet and Author of distinction and repute and the unspecific charge against his writings creates an unfounded and unnecessary impression that his writings are obscene."
4. Although specific plea was taken by the petitioner that no notice before ordering forfeiture of the books was issued to him, the reply dated 17-6-1978 contained no denial of the same.
5. I have heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the respondents.
6. The learned counsel for the petitioner quoted extensively the excerpts from the opinions/critical analysis by eminent men of letters like Faiz. Ahmad Faiz, Sharif Kunjahi, Munir Niazi, Sajjad Haider, Amin Mughal, Prof. Sajjad Haider Malik, Hussain Shahid, Salim Khan Gimmi, Amrita Preetam, Dr. Laiq Babri, Aizaz Ahmad Azar, Ata-ul-Haq Qasmi, Mustansar Hussain Tarar, Yusuf Kamran, -Muhammad Mansha Yad, Dr. Harbhajan Singh, Dr. Attar Singh, Dr. Karnail Singh Thind, Dr. Rashid Anwar, Prof. Akhtar Jaffery, Bashir Manzur, Jagtar, Mansur Qaiser, Zulfigar Ahmed Tabish, Rahat Nasim Malik, Mtilitaq Singh, Prof. Sarfraz Hussain Qazi, Dr. Abdus Salam Khurshid, Prof. Malik M. Zamurrad, Prof. Ashfaq Sarwar and Muhammad Idrees and stated that the petitioner was a literary man of eminence and his books were not only published much before the forfeiture but were also included .In the syllabus of Pakistan Studies, Quaid-e-Azam Open University, Islamabad and Sindh University. He also quoted various other literary composition with reference to objectionable material submitted that the same was not obscene as bringing to forth of the social evils and pointing them out to the literate persons of the society who were not more than 20% was a service rendered to the society so as to awake them from the slumber and apathy motivating to take remedial measures in this behalf. He also contended that the impugned order of forfeiture was against the provisions of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 inasmuch as the petitioner was condemned unheard and was not treated in accordance with law and the order was also a violation of. Fundathental rights as guaranteed under Article 19 of the Constitution, 1973.
7. The learned counsel for the respondent submitted that no notice was required for ordering forfeiture and that the petitioner had an alternate remedy by filing an appeal under, section 48 of the West Pakistan. Press and Publications Ordinance, 1963 and as the petitioner had not taken recourse to the filing of appeal the writ petition was not maintainable. It was further contended that the forfeited material was decidedly obscene and the order of forfeiture was absolutely justified.
June, 1978 was the supra-Constitutional period and the exercise of authority was made by Martial Law Authorities directly or indirectly. The petitioner was admittedly, a Senator and Member of a political party which was overthrown by the Martial Law Authorities and as such the petitioner was justified in assuming that no relief would be granted to him as the order was made out of prejudice and no regard was shown to the fact that the forfeited books were published much before the order of forfeiture and were available in the market and were prescribed in syllabus and were available in the international market. In such circumstances I am of the view that the petitioner was justified in filing directly a writ petition in this Court. More so, the writ petition was admitted by this Court on 14-10-4978 and the objection has been taken at too late a stage. The objection regarding maintainability is repelled.
8. The literary composition was property of the petitioner which entitled him and is assigned to all use of profits of the compositions to which no independent right is, through any act or omission on his part, vested. In another person. The exclusive right of the petitioner to possess, use and dispose of the intellectual production were the literary property of the petitioner. The petitioner could not be deprived of his property except in due course of law.
9. The impugned order suffered from legal infirmity inasmuch as no notice was issued to the petitioner before the order of forfeiture, was passed nor the same was communicated to him directly; the printers and publishers of forfeited books were also not served with such notice; non- issuance of notice and not affording an opportunity of being heard to the petitioner before passing the impugned order.
10. Memo. Of Government of the Punjab dated 17-6-1978 does not allege that the petitioner was served through a show-cause notice. It has not so been contended before this Court during the hearing of the present petition and as such it can be safely assumed that no notice prior to the passing of the order of forfeiture was issued to the petitioner. The doctrine of audi alteram partem is recognized. By the superior Courts of this country on the principle of natural justice in the case of "Muhammad Ishaque v. Dr. Saiduddin Swaleh and another" PLD 1959 Karachi 669. It was laid down that each case will have its own facts. If the statutory provisions of notice be of mandatory nature then an order without any notice would be wholly void; but if there be no such provision or if the provisions be merely of directory nature then wherever a violation, of a principle of natural justice is alleged, the Court may call upon the parties alleging the same to prove prejudice' before it and in case the party proves the same the Court shall set aside the order. It was further held that such prejudice would obviously not be there if it was found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made.
11. The same view was taken by the Hon'ble Supreme Court in Syed Abul 'Ala Moudoodi etc. v.
Government of West Pakistan etc. PLD 1964 SC 673, Commissioner of Income Tax, East Pakistan v.
Fazlur Rehman" PLD 1964 SC 410; Atta Muhammad Qureshi v. Settlement Commissioner, Lahore Division and 3 others PLD 1971 SC 61, The University of Dhaka v. Zaka Ahmad PLD 1965 SC 90, Syed Zulfiqar Bukhari v. Muhammad Hasan and others PLD 1971 Lahore 108 and Abdul Latif Niazi v.
Government of Pakistan PLD 1962 SC 62, Mansab Ali v. Amir Ali PLD 1971 SC 124. The above view was followed by the Supreme Court in Aman Ullah Khan v. Federal Government PLD 1990 SC 1092.
12. As discussed above I am of the view that a prejudice was caused to the petitioner due to non- issuance of show-cause notice. The order of forfeiture under section 39, Press and Publications Ordinance, 1963 whereby "Sat Gowachay Lok, Ik Maray Banday Di Kahani, "Wangaar", "Kanso Wailey Di," authored by the petitioner is accordingly declared an act of mala fide and against all canon of natural justice and infringed upon the rights of the petitioner under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 and was also a violation of fundamental right of the petitioner as secured under Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 and all subsequent acts of the respondents are declared to be of no legal and without lawful authority.
13. The writ petition succeeds and the respondents are burdened with a costly of Rs,1,000. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.