' This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan (1973) by Mr. Muzaffar Qadir and Mr. Hussain Naqi. Mr. Muzaffar Qadir had described himself in the heading of the petition as the 'General Manager of the Packall Printers and Printer of the 'Punjab Punch', Lahore while Mr. Hussain Naqi has been described in the heading of the petition as the 'Publisher and Editor' of the Punjab Punch. The writ petition is directed against the legality and the validity of..
(i) the warrant of search, dated 3-8-1973, whereby the District Magistrate, Lahore, ordered a D. S. P., to enter upon and search the premises of Packall Printers, Lahore and seize all documents (i,e, copies of the English Weekly called Punjab Punch) printed since 24-6-1973 or any subsequent date, as unauthorised publications, and
(ii) the legal proceedings initiated against Mr. Muzaffar Qadir petitioner by the District Magistrate, Lahore.
2. The factual background which led the present petition may be stated, briefly, for a clear understanding of the contentions raised by the learned counsel for the parties. The facts narrated below have either been stated in the writ petition or the written statement or were mentioned by the learned counsel for the parties during the arguments. The correctness of these facts given hereunder were not disputed by the parties before me.
(a) On 18-5-1970 one Sardar Mahammad Sarfraz, who owned a press called Packall Printers' in Lahore, made a declaration in Form 'A' under section 4 of the West Pakistan Press and Publications Ordinance, 1963, (hereinafter referred to as the Ordinance). Apart from Mr. Muhammad Sarfraz, the maker of the declaration that form was also signed by Mr. Muzaffar Qadir, petitioner No, 1, as the former's 'agent'.
(b) On the same day an agreement deed was executed between Mr. Muhammad Sarfraz and Mr. Muzaffar Qadir petitioner No, 1 whereby Mr. Muzaffar Qadir petitioner was employed at a salary of Rs, 1,200 p.m., to manage the affairs pertaining to the running of the printing press and to do all other acts in connection therewith, including securing business. (A photostat copy of the agreement deed is attached as Annex. '13' with the petition).
(c) About 1/ months later, on 25th of June 1970, the District Magistrate Lahore, authenticated the said declaration in exercise of his powers under section 4 (1-A) of the Ordinance and on the same day he sent a letter to Mr. Muhammad Sarfraz addressing him as the "Keeper of the Packall Printing Press" and informing him that his declaration has been authenticated (a photostat copy of this letter is attached as Annex. 'A' with the petition).
(d) Subsequently, the aforementioned Mr. Muhammad Sarfraz applied for a "Printer's Declaration" for the English Weekly called "Punjab Punch", under section 7 of the Ordinance, and submitted a declaration, in Form 'B' before the District Magistrate, Lahore. Mr. Muzaffar Qadir petitioner appeared before the learned District Magistrate as an "agent" of said Muhammad Sarfraz, which is permissible under section 7. The District Magistrate, Lahore, authenticated the said declaration on 6-3-1971, under section 12 of the Ordinance.
(e) Mr. Hussain Naqi petitioner No, 2 filed a "Publisher's Declaration," in Form 'B', for the same magazine and that too was authenticated by the District Magistrate, Lahore.
(f) Sometime thereafter Mr. Muzaffar Qadir started printing the 'Punjab Punch', in accordance with the terms of the aforementioned agreement dated 18-5-1970. The name of Mr. Muzaffar Qadir appeared on the magazine as the Printer thereof in different styles, which are mentioned in paragraph No, 7 of the Written Statement filed by the respondent. According to the petitioners, these variations in the print-line were only in respect of 'style'. The variations in question have been mentioned in paragraph No, 7 of the Written Statement as follows :-
(i) "Printed at Packall Printers",
(ii) "Printed under the management of Muzaffar Qadir at Packall Printers", and
(iii) "Printed at Packall Printers by Muzaffar Qadir".
(g) Copies of every issue were sent by the petitioners regularly to the relevant authorities as required by section 45 of the Ordinance.
(h) Some articles, severely criticising the present Government, or the head of the Government of Pakistan, appeared in certain issues of the said magazine.
(1) The Printer's Declaration under section 7 relating to this Weekly, was annulled by the District Magistrate on 12-1-1972 but was restored on 21-1-1972.
(j) Some articles containing scathing criticism of the Government were published in the issue of Punjab Punch dated 20-2-1972. These are mentioned in a copy of the charge-sheet served on Muzaffar Qadir, petitioner, when he was tried for an offence under Martial Law Order No, 89 (1) (c) and (d). On the next day, i,e, on 21-2-1972, the declaration of the said Weekly, under section 7, was again annulled.
(k) The petitioner thereupon filed Writ Petition No, 168/72, challenging the legality of the annulment.
(1) The annulment was, however, withdrawn by the Government, of its own motion, and the writ petition was disposed of as having borne fruit.
(m) Between 2-3-1972 and 2-4-1972 more articles, bitterly criticising the Government and the head of the Government, appeared in the said Weekly which (according to the petitioner), were considered objectionable by the Government and gave rise to serious resentment against the petitioners.
(n) The petitioners came to know that they were going to be arrested. They, therefore, applied for bail before arrest through a Writ Petition (No, 2860/72). The Advocate-General of Punjab, while arguing the case on behalf of the Government, is said to have stated that the apprehension of arrest was merely a "figment of petitioners' imagination."
(o) On this, the petitioners amended the writ petition, with the permission of the Court, and certain contentions were added which converted the writ petition into one of quo warranto, challenging, inter alia, the capacity of the then President of Pakistan, to hold the office of Chief Martial Law Administrator.
(p) Martial Law was, however, lifted shortly thereafter and the Interim Constitution came into force.
The above-noted contentions raised in the quo warranto petition, therefore, no longer required decision and the writ petition became infructuous.
(q) During the pendency of the writ petition, however, a case under Martial Law Order Nos. 89 and 16(a) was registered against the petitioners on 5-4-1972. Mr. Hussain Naqi was arrested on the same day, while Mr. Muzaffar Qadir was arrested on the next day.
(r) On 6-4-1972 (i,e, on the next day) Martial Law Order No, 259 was promulgated, which prohibited the publication of the Punjab Punch as well as two Urdu magazines known as Zindgi and Urdu Digest (which, too, had published articles criticising the Government). The printing or publication of these periodicals was also made a penal offence.
(s) The Printers and Publishers of all the three magazines challenged the ban imposed upon their publications by Martial Law Order No, 259, through separate writ petitions filed in the High Court, which were, however, heard together. The present petitioners filed Writ Petition No, 404 of 1972 on 10-4-1972.
(t) The charge-sheet sent by Military Court to Mr. Muzaffar Qadir petitioner in the case under Martial Law Orders Nos. 89 and 16(a) mentions him as the 'Printer of the Weekly Punjab Punch'.
(u) Since Writ Petition No, 404 of 1972 filed by the petitioners was still pending before it, the High Court passed an order expressing "hope and desire" that the Military Court would not convict and sentence the petitioners for the offences under the Martial Law Orders Nos. 89 and 16(a) during the pendency of the writ petition. The Advocate-General, Punjab, is said to have given an undertaking that the "hope" expressed by the High Court shall be honoured. The Military Court, however, went ahead with the trial and passed an order convicting the two petitioners on 13-4-1972 and sentencing them to 2 years' R. I. And a fine of Rs, 1,00,000 each on each count. Similarly the Printers and Editors of Zindgi and Urdu Digest were also convicted and sentenced under the same Martial Law Regulations. On the next day (i,e, 14-4-1972), Mrs. Shamim Qadir, the wife of petitioners No, 1 filed a habeas corpus application (Criminal Miscellaneous No, 190/H of 1972), for production of the petitioners and the suspension of the sentences were suspended by the High Court. Mr. Muzaffar Qadir also filed an application praying for the institution of contempt proceedings against the President of the Summary Military Court.
(v) Martial Law was lifted on 21-4-1972.
(w) Muzaffar Qadir petitioner was let off by the Government of its own motion on 28-4-1972.
(x) A Full Bench of the High Court, consisting of five Judges, delivered the judgment in Writ Petition No, 404 of 1972 on 8-7-1972 and held, inter alia, that the detention of the petitioner under orders of the Military Court was illegal (for non-compliance) with certain procedure laid down by the Army Act).
' The Government filed an appeal against the decision of the Full Bench, which was accepted.
According to the petitioners' counsel one of the reasons for the same was that the Supreme Court was assured by the Advocate-General that the Government did not intend to carry out the sentence awarded to the petitioners.
(y) After their release the petitioners wrote a joint letter to the Governor of Punjab on 3-7-1972 saying that since they had been released by the Government of its own motion, they assumed that the embargo on the publication of their papers had also been removed. It was also added that if they did not hear anything to the contrary from the Government they will assume that the Government had granted them permission for starting the publication of the said Weekly. A copy of this letter was also sent to the Director of Publications. This letter is said to have been received by the latter on 6-7-1972. A reply to it was however sent by the Director of Publications, Punjab, on 25- 7-1972. The reply did not touch the petitioners' contention and, instead stated that since the petitioners had not printed the Weekly magazine for more than two weeks during the period between 3rd April 1972, to 8th July 1972 (while petitioner No, 1 was under detention for the offences under Martial Law Orders Nos. 89 and 16(a), their declaration (under section 7 of the Ordinance), had lapsed.
(z) On 27-7-1972, the District Magistrate, Lahore, issued Search Warrants under section 37(2) of the Ordinance and the publication was seized.
(aa) The petitioners then filed another writ petition (No, 1048/72), which was dismissed by the learned Chief Justice sitting in Single Bench.
(bb) The petitioners thereupon filed a Letters Patent Appeal No, 148 of 1972 which was accepted by a Division Bench of this Court on 22-6-1972.
(cc) The Government filed a petition for Special Leave to Appeal against the judgment of the Division Bench which was accepted but the Supreme Court did not suspend the judgment of the High Court in the L. P. A., according to which declaration under section 7 relating to the Punjab Punch had not been annulled. The main appeal is still pending before the Supreme Court.
(dd) In the meanwhile, on 25-8-1973, the District Magistrate, Lahore again issued Search Warrants under section 37(2) of the Ordinance authorizing the D. S. P. Named therein to search the premises of the Packall Printers and seize any document which, in his opinion, were unauthorised publications, printed since 24th June 1973, or any subsequent issues. The D. S. P. Thereupon conducted the search and seized a number of copies of the Punjab Punch lying therein, as 'unauthorised publications'.
(ee) Moreover, a news-item appeared in the 'Pakistan Times' of 19-8-1973 stating that the District Magistrate, Lahore had also initiated proceedings under sections 54 and 56 of the Ordinance against Muzaffar Qadir petitioner No, I (A photostat copy of the same is attached as Annex. 'E' with the petition).
The petitioners have, therefore, filed the present writ petition challenging the legality and validity of the aforementioned Search Warrant issued by the District Magistrate on 25-8-1973, as well as the institution of proceedings under sections 54 and 56 of the Ordinance by him against the petitioners.
3. Mr. M. S. Baqir and Dr. Khalid Ranjha, Advocates appeared on behalf of the petitioners and Mr. Abdus Sattar Najam, Assistant Advocate-General (II), appeared for the State (respondent). I have heard the learned counsel for the both sides at length. The case had, however, to be adjourned a number of times due to the fact that certain important habeas corpus matters were pending before different Judges of this Court and sometimes the learned counsel for the parties were busy in some of these cases and while on some other dates they conceded that the habeas corpus matters, pending with me, took precedence over their case and agreed to an adjournment. The case was therefore, heard piece-meal.
4. Before discussing the contentions raised by the learned counsel for the parties on the main questions in issue I may mention two developments that took place during the hearing of the writ petition. The first of these is that on 2-10-1973 Dr. Khalid Ranjha, Advocate who appears to have replaced Mr. M. S. Baqir as the counsel for the petitioners, filed an affidavit sworn by petitioner No, 1 containing a number of facts with regard to the background of the case. Six documents were also appended with this affidavit. The learned A. A.-G. (II) objected that no document which was in the possession or power of a party on the first date of hearing of the petition, but had not been produced by him by that date, should be received at any subsequent stage and relied on :-
(a) Allah Ditta v. A. F. Ahmad PLD 1954 Lah.
608.
(b) Ghulam Muhammad v. Shah Wall PLD 1956 Lah.
756.
(c) Lahore Improvement Trust v. Karamat Ali PLD 1959 Lab.
597.
' This contention is based on Order XIII, rule 2 of the Civil Procedure Code. For a proper understanding of this contention rules 1 and 2, Order XIII, C. P. C. May be reproduced here in extenso :O. XIII, r. 1, C. P. C.
(1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power; on which they intend to rely, and which has not already been in Court, and all documents which the Court has ordered to be produced.
(2) The Court shall receive the documents so produced. Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
' No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof ; and the Court receiving any such evidence shall record the reasons for so doing.
It is now well settled that writ petitions (under the Constitution) are not strictly governed by the procedure prescribed in the Civil Procedure Code or the Orders and Rules contained in the First Schedule thereto, but the broad rules of the said Code may be applied to writ petitions as well. Refs.
Nawabzada Muhammad Amir Khan v. Controller of Estate Duty (1).
' The object of the aforementioned Orders and rules is to exclude forged documents and they are not meant to exclude genuine documents. If there be no doubt as to the authenticity of a document (and its admission is not likely to delay the trial of the suit or hearing of the writ petition as the case may be), its reception even at a late stage is not barred by the afore-mentioned provisions. Refer Lahore Improvement Trust v. Messrs Khuda Bakhsh Meraj Din (2).
' The authorities cited by the learned Assistant Advocate-General (II) do not, in any way, detract from this principle. In any case, they are not applicable, because I am not inclined to accept or receive any of the documents appended by Dr. Khalid Ranjha, Advocate, with the affidavit of petitioner No, 1 and, as such the provisions of Order XIII, rule 2 are, therefore, not attracted. However, the objection raised by the learned Assistant Advocate-General does not apply to the affidavit itself, which is not the document within the meaning of Order XIII, rule 2, C. P. C. And contains nothing more than the details of the background of the case, many of which have already been mentioned in the writ petition and were admitted in the written B statement, filed on behalf of the respondent. This affidavit can be treated either as an amendment of the writ petition, made by the new counsel, to which there is no bar, or it can be treated as a 'Replication' filed by petitioner' No, 1, in answer to the paragraph No, 3 of the Preliminary Objection in the Written Statement of the respondent, wherein it is stated that "the allegations of mala fide are not expressed and detailed."
In the first place the petitioner has the right to furnish these details by way of replication and secondly the facts mentioned therein are borne out by the record of the various writ petitions and other applications filed by the petitioners or the respondents {{FOOT NOTE}}
(1) PLD 1957 Lah. 706 (2) PLD 1956 Lah. 252 {{FOOT NOTE}} ' in this Court, or before the Supreme Court, and have not, in fact, been denied by the respondents through a counter affidavit or otherwise. In this view of the matter the objection raised against receiving the affidavit is not sustainable.
' The second development which took place during the hearing of this writ petition was that on 4- 10-1973 the learned Assistant Advocate-General (II) produced a file containing certain documents.
Those were :-
(a) A letter dated 15-9-1973 by Muhammad Sarfraz addressed to the District Magistrate, Lahore saying that he had sold some machinery of the press to "Shamim Publications."
(b) A declaration in Form 'A' (under section 4 of the Ordinance), submitted with regard to a press and some other machinery, by one Sikandar Hayat, as "Keeper of the Press" and is accompanied by an authority letter signed by one "Shamim Qadir", the proprietress of the press, saying that Sikandar Hayat is authorised to file the aforementioned declaration.
(c) An affidavit dated 17-9-1973 by the aforementioned Sikandar Hayat, saying that he has never been involved in any criminal case.
5. The learned Assistant Advocate-General (II) contended that the new facts and circumstances disclosed by these documents render the writ petition infructuous because Muhammad Sarfraz, having sold his Press, was no longer the owner of the Press and consequently did not remain a 'Printer' either. He argued further that as a result, Mr. Muzaffar Qadir petitioner No, 1, automatically ceased to be the 'Manager' of the Press.
' The learned counsel for the petitioners however controverted this contention and submitted that Muhammad Sarfraz had not sold his entire Press and has sold only some machinery (even though it may constitute a Press in itself) ; that as such, was still in possession of a Press within the meaning of the expression as defined in clauses (k) and (m) of section 2 of the Ordinance, because books, newspapers and news-sheets etc. Can still be printed with the machinery left with him ; that the 'Printer's Declaration' of Muhammad Sarfraz has, therefore, not lapsed, and that Mr. Muzaffar Qadir, petitioner No, 1, still continues to be his 'Manager' for the purpose, inter alia, of printing the Punjab Punch.
6. It will be noticed that the machinery mentioned in the aforementioned letter of Muhammad Sarfraz, as having been sold to `Shamim Publications' includes the machinery, that was mentioned by him in the Declaration, in Form 'B', submitted by him to the District, Magistrate Lahore, under section 7 of the Ordinance. From this it can be argued that Muhammad Sarfraz has in fact sold the entire Press, on the basis of which he had obtained the authentication of his declaration under section 12. But a study of Form 'B', as prescribed in the Schedule to the Ordinance, would show that a person making a Declaration in that Form (under section 7), is not required to give the details of the machinery of which his Press consists, as there is neither any separate column, nor space, provided for giving such details. Therefore in the first place, it cannot be said with any certainty whether the machinery mentioned by Muhammad Sarfraz, in the Declaration (in Form `B') submitted by him, was his total machinery and, secondly, it cannot be said that after having sold the machinery mentioned by him, in the said Form (Form `B'), no other machinery, which may, by itself, constitute a Press, is left with him. I am of the view that an authenticated Printer's Declaration under section 7 is valid as long as the person concerned owns or keeps a 'Press', irrespective of the nature or the identity of that Press, because otherwise it would have been made obligatory for the declarant to specify in Form 'B' (prescribed by the Government under section 7), the details of the machinery of which the press in question (with regard to which authentication of the declaration is sought), consists.
7. The result is that in the circumstances of the present case it cannot :C be said that the authenticated Printer's Declaration (under section 7) obtained by, or issued in favour of, Muhammad Sarfraz came to an automatic end on the sale of the machinery mentioned by him in the said declaration and, consequently, the agreement between him and Muzaffar Qadir petitioner No, 1 also cannot be said to have terminated, or come to an automatic end. I am, therefore, of the view that the aforementioned papers produced by the learned A. A.-G. (II) do not affect the maintainability of the present writ petition.
8. In this view of the matter I proceed to consider on merits the contentions raised in respect of the two prayers made in the writ petition. The first question to be considered is whether the Search Warrant issued by the District Magistrate, Lahore, on 25-8-1973, is legal and valid. In other words, was it made with lawful authority and had legal effect.
' Before expressing any view on this question it will be useful to reproduce the relevant portion i,e, subsections (1) and (2) of section 37 of the Ordinance, which provide for the issuance of Search Warrants empowering the seizure of newspapers and news-sheets.
' Section 37 (1).
"Any police officer, or any other person empowered in this behalf by the Government, may seize any unauthorised news-sheet or unauthorised newspaper, wherever found.
' Section 37 (2).
Any District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class may, by Warrant authorise any police officer not below the rank of Sub-Inspector to enter upon and search any place where any stock of unauthorised news-sheets or unauthorised 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 unauthorised news-sheets or unauthorised newspapers."
(The underlining* is mine).
' It would be noticed that these provisions empower the seizure only of "unauthorised" news-sheets or news-papers. The definition of the words `News Papers' and News-sheets' is given in section 2
(g) and (h) respectively. It would also be noticed that 'Newspapers' and 'News-sheets' are dealt with or governed by different provisions of the Ordinance. 'News-sheets' are governed by section 36 which occurs in Part V of the Ordinance, while 'News papers' are governed by the provisions in Part III of the said Ordinance. From a reading of the definitions in clauses (g) and (h) of section 2 of the Ordinance it is clear that the Punjab Punch is a `News-paper'. I shall, therefore, confine myself to provisions in the Ordinance relating to 'Newspapers' only. As already mentioned above 'Newspapers' are dealt with in Part III *[Here in italics] *[Here in italics) ' of the Ordinance, beginning with section 5. Section 7 also falls in this part. It would be useful to reproduce the provisions of section 7 :- Section 7. .
"The printer and the publisher of every newspaper shall appear in person or by agent authorised in this behalf in accordance with the rule before the District Magistrate within whose local jurisdiction such newspaper shall be printed or published, and shall make and subscribe, in duplicate originals, a declaration in Form 'B' or in such other form as may be prescribed."
' As is clear from the above-noted provisions, section 7 requires the Printer and/or the Publisher of every 'newspaper' to make and subscribe a declaration in Form 'IB', which is then to be authenticated by the relevant District Magistrate, under section 12 of the Ordinance.
' A reading of subsections (1) and (2) of section 37 (reproduced above), would show that for the purposes of the case, the interpretation of these provisions section 37(1) and (2) would turn on the meaning of the word "unauthorised newspaper." This expression has been defined in section 2(p) of the Ordinance. That also may be reproduced for facility of reference. Section 2(p).
"Unauthorised newspaper" means-
(1) any newspaper in respect of which there are not for the time being valid declarations under section 7 and
(ii) Any newspaper in respect of which security has been required under this Ordinance, but has not been furnished as required."
(The underlining* is mine).
' Clause (ii) above is obviously not applicable to the present case. As such what has to be seen is whether the Punjab Punch was an "unauthorised newspaper" within the meaning of the expression as defined in section 2(p) (i) of the Ordinance. It would be noticed that according to the said definition every newspaper in respect of which there is for the time being, a "valid declaration" under section 7 of the Ordinance, is an authorised newspaper. The question to be resolved therefore is as to whether or not, on 25-8-1973, a valid declaration under section 7 existed in respect of the Punjab Punch. It has been admitted by the respondent himself in his Written Statement that he had authenticated the Printer's Declaration in respect of Punjab Punch in the name of Muhammad Sarfraz. The exact words used in paragraph No, 6 of the respondent's Written Statement are as follows "The D. M. Authenticated a Printer's declaration in the name of Sardar Muhammad Sarfraz in respect of the Punjab Punch and not in that of Mr. Muzaffar Qadir.............. If (A copy of the said declaration has been attached with the written statement as Annex. `R/2', which carries a note by the District Magistrate that the same has been authenticated).
' It has not been alleged on behalf of the respondent that the Printer's Declaration (under section 7) issued in the name of Muhammad Sarfraz has been cancelled. As a matter of fact it was conceded before me by the learned A. A.-G. (II) that the Government admitted the existence of an authorised declaration in favour of Muhammad Sarfraz. In my view, as already mentioned in paragraph No, 4 above, even the new circumstance of sale by Muhammad Sarfraz of some machinery, constituting a press, to `Shamim Publications' does not effect the validity of Printer's Declaration of Muhammad Sarfraz.
9. It follows therefore that on 25-8-1973, when the District Magistrate, Lahore passed the impugned Search Warrant, a valid declaration under section 7, in the name of Muhammad Sarfraz, did exist in respect of the Punjab Punch. In other words, on that date Punjab Punch was not an "unauthorised Newspapers" within the meaning of the said expression as defined in section 2(p)(i). Admittedly the respondent District Magistrate could not, issue a Search Warrant for the seizure of an authorised newspaper or publication. That being so, the impugned Search Warrant was obviously passed in contravention of the provisions of section 37 (1) and (2). Consequently, I am of the view that the impugned Search Warrant was without lawful authority and of no legal effect, and all acts done in pursuance thereof were also without lawful authority.
10. Arguments were also heard with regard to the second prayer in the writ petition, namely, that the legal proceedings initiated by the District Magistrate Lahore against Mr. Muzaffar Qadir under sections 54 and 56 of the Ordinance be quashed as being without lawful authority. The learned A.
A.-G. (II) indicated during the course of his arguments that even section 53 would be applicable to the petitioners' case. All three of these sections may therefore be reproduced here for facility of reference :- ' Section 53.
"Whoever shall print or publish any book or paper in contravention of the provisions of section 3 shall be punishable with fine not exceeding two thousand rupees, or with simple imprisonment for a term not exceeding six months, or with both."
' Section 54.
"Whoever shall keep in his possession any printing press without making a declaration as is required by section 4 shall be punishable with fine not exceeding two thousand rupees, or with simple imprisonment for a term not exceeding six months or with both."
' Section 56.
"Whoever shall edit, print or publish any newspaper in contravention of the provisions of this Ordinance or whoever shall edit, print or publish or shall cause to be edited, printed or published, any newspaper, knowing that the said provisions have not been observed with respect to that newspaper shall be punishable with fine not exceeding two thousand rupees, or imprisonment for a term not exceeding six months, or with both."
11. According to the learned A. A.-G. (II) all the said sections are attracted to the case of petitioner No, 1, as his name appeared as the 'Printer' on print-line of the Weekly in question although he was not the Printer. The learned counsel for the petitioners vehemently argued that Mr. Muzaffar Qadir was in fact, the Printer of the Punjab Punch because he had "subscribed" the Declaration under section 7. He dwelt on the meaning of the word "subscribe" and referred to 'Stroud's Judicial Dictionary' in this connection. An official of the Information Department showed me the original declaration in Form 'A', under section 4, made by Muhammad Sarfraz, the owner of the Printing Press. The petitioners' counsel pointed out that Mr. Muzaffar Qadir petitioner No, 1 had also signed the document. He argued therefore that this was sufficient "subscription" within the meaning of section 4. No signature of Mr. Muzaffar Qadir petitioner No, 1 was however found on original Form 'B', which was also shown to me by the same official. The petitioners' counsel asserted that there was a Form 'B' under which Mr. M Muzaffar Qadir had also signed as an agent, but alleged that it had been removed from the file by the officials of the department. His contention was that since Mr. Muzaffar Qadir petitioner No, 1, had also signed the two forms, he too had become the 'Printer' because section 4 as well as section 7 of the ordinance require 'subscription' by the printer.
12. I have carefully considered these contentions. The word "subscribe" no doubt means (in the context of sections 4 and 7 of the Ordinance),-"to sign" but these sections require that the declarant should make, as well as subscribe, the declaration in Forms 'A' and I noticed that petitioner No, 1 had made his signatures only on Form 'A' (under section 4), and that too as n 'agent' of the maker of the declaration. He (petitioner No, 1) may h ye signed the form in the bona fide belief that by doing so he too would become a 'printer', but on a careful study of the relevant provisions, together with the wording of the Forms 'A' and `B' as prescribed in the Schedule to the Ordinance, I feel that mere subscription, or signing underneath the Forms, submitted (or 'made), by someone else does not appear to be sufficient. The above-noted contention of the petitioners' counsel has, therefore, no force.
13. In the alternative the learned counsel for the petitioners argued that since petitioner No, 1 had been appointed as his 'agent' by Mr. Muhammad Sarfraz, through a registered Agreement Deed, according to the terms of which he was to run and manage the Press as well as the business side thereof, he was keeping and running the press as a person duly authorised by the owner who, admittedly, had a Printer's Declaration, as such he (i,e, petitioner No, 1) was "in substance" the Printer of the Punjab Punch (Refer Paragraph No, 10(c) of the writ petition, wherein this assertion is made). The counsel contended further that although the Punjab Punch was being published since quite some time and carried similar 'Print Lines' and copy of the Weekly was being regularly sent to the Information Department, as provided by section 45 of the Ordinance, yet the relevant authorities did not raise any objection on that score, till now.
' In this connection it would be pertinent to mention that till the sale of some machinery of the Press to Shamim Publications the learned A. A.-G. (II) admitted that the Government acknowledged Muhammad Sarfraz as the `Printer' and agreed that the authentication of his declaration in Form 'B' as well as Form 'A' continued to be valid till 4-10-1973. Only objection raised on behalf of the Government was that Mr. Muzaffar Qadir had wrongly named himself as the printer and it was admitted by the learned A. A.-G. (II) if Muhammad Sarfraz was to be mentioned as the printer, in the print-line there would have no objection.
' The learned counsel for the petitioners submitted further that being authorised by Muhammad Sarfraz in that behalf it was Mr. Muzaffar Qadir petitioner No, 1 who was, in actual fact, and lawfully, running the Press and printing the Weekly in question, and that even the Summary Military Court bad tried and convicted petitioner No, 1 as the 'Printer' of the Punjab Punch.
' He argued that in view of the Military Court's judgment, which could not be challenged in any Court the Government stood committed to treat him as the printer of the said Weekly.
' The learned Assistant Advocate-General (II) argued that no one can plead an estoppel against a Statute and that petitioner No, 1 could claim to have become the printer even though he did not satisfy the definition as given in the Press and Publications Ordinance, 1963. I agree with the legal position taken up by the learned A. A.-G. (II), but I feel that even though petitioner No, 1 can plead estoppel against a Statute yet, the above-noted facts are sufficient to have raised a bona fide belief in his mind that his status as the printer of the Punjab Punch had been accepted by the authorities, which had ordered his prosecution and trial under Martial Law Order No, 89 etc. ' As to the offence under section 56 of the Ordinance, the petitioners' counsel submitted that the main ingredient of that offence consists of having the knowledge, inter alia, that some provision or provisions of the Ordinance were being contravened and since petitioner No, 1 was acting under the bona fide belief that he was either a Printer or was a Printer 'for all practical purposes' he had therefore not 'knowingly' contravened any provision of the Ordinance, including those of section 3, and that he cannot therefore be held guilty of the said offence for the lack of mens rea.
14. There is indeed some substance in the contentions (mentioned in paragraph No, 13 above) and petitioner No, 1 could, probably, urge with some force inter alia, that in view of his special status, as the duly authorised agent of Muhammad Sarfraz, he had the right to run the press (and consequently to print the Weekly in question and he genuinely considered himself to be the Printer thereof ; that the mens rea, required in every criminal case, was therefore missing and that as such he was not liable under section 53, 54 or 56 of the Ordinance.
But, I am afraid, all these contentions shall have to be raised at the trial or in an application for quashment under section 561-A, Cr. P. C., or a writ petition, after the investigation is complete and the challan has been filed because, admittedly, the matter. Is still in the investigation stage and, as F is now well settled, this Court cannot interfere in the investigation, unless of course the allegations alleged against an accused person even if believed, do not constitute an offence. Refer Shahnaz Begum v. Hon'ble Judges of the High Court of Sind & Baluchistan (1) and Khawaja Nazir Ahmad v.
State (2), Neither party has produced before me a copy of the F. I. R. To enable me to see what exactly are the allegations against the petitioners. The facts mentioned in the news-item in the Pakistan Times of 19th August 1973, are too brief. Moreover a legal decision cannot be based on the basis of a news-item appearing in a daily paper. It is, therefore, not possible for me to determine as to whether or not, if believed, the facts alleged against the accused petitioners in the F. I. R.
Constitute an offence. For the above-noted reasons I refrain from interfering as far as the second prayer is concerned.
15. It may be mentioned that one of the points pressed by the learned counsel for the petitioners was that the impugned Search Warrant as well as the institution of criminal case against Mr. Muzaffar Qadir petitioner No, 1 was mala fide. He argued that although the Punjab Punch was being printed since February 1972, yet, no objection had even been taken by the information Department or the District Magistrate against it. But after certain {{FOOT NOTE}}
(1) PLD 1971 SC 677 (2) AIR 1945 P C 18 {{FOOT NOTE}} ' articles, written by Mr. Muzaffar Qadir appeared in the Punjab Punch, which were unpalatable for the Government, the concerned authorities focused their entire attention on the petitioners and the Punjab Punch. Action after action was taken, either to stop the publication by one means or the other, or to punish the petitioners personally. In that connections the petitioners' counsel made a pointed reference to the fact that they were ordered to be tried by a Summary Military Court under M. L.
0. Nos. 89 and 16(a), instead of an ordinary criminal Court, under the ordinary law and the extraordinary haste with which the Summary Military Court proceeded to convict and sentence the petitioners. The council also referred to the provisions of Martial Law Order No, 259, which, according to him, was enacted with the sole purpose of prohibiting the publication of the Punjab Punch, and two other magazines, which were also severely criticising the Government. He urged that it was apparent from the facts given in paragraph No, 2 above, that the petitioners had to go to the Courts a number of times to seek relief against Government actions but each time they (the petitioners) were successful, the concerned authorities proceeded to take some other action against them, or against their publication.
' If the facts given in paragraph No, 2, above, are read in the light of the above-noted allegations levelled by the petitioners' counsel, it would appear that there is considerable substance in the allegations of mala fides because if, in any particular case, the executive authorities take successive actions against the same person (or his property or publications), within a short span of time, after that person has done something to annoy the authorities, one is likely to draw an inference that the actions are mala fide and that person in question is being unduly harassed, under the cloak of law. The learned Assistant Advocate-General (II) however, pointed out that the question of mala fide has been discussed by the Supreme Court of Pakistan in number of cases. He referred West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (1) wherein the Supreme Court has considered the nature of mala fide actions and it was held that :- "The real question, to my mind, in every case of mala fide: Did the authority or officer concerned reasonably believe that his duty as such officer required to act as he did? A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore, is one where there are no grounds, or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner."
' According to this dictum of their Lordships, one has to see whether the District Magistrate, could, reasonably, have come to the conclusion that the publication in question was an 'unauthorised' one, on the ground that Mr. Muzaffar Qadir petitioner No, 1 was not the printer of the Punjab Punch and that action under section 37 as well as sections 54 and 56 of the Ordinance was therefore, called for.
' The question as to whether or not Mr. Muzaffar Qadir is the Printer of the said Weekly magazine is not so simple as it would appear to be, at first {{FOOT NOTE}}
(1) PLD 1969 SC 14 {{FOOT NOTE}} ' sight. This is evident from the fact that the learned counsel for each of the parties argued for many hours, on this point alone, and brought out fine distinctions in the relevant provisions of the Ordinance in support of their respective stands. The respondent District Magistrate could not, therefore, be expected to come to an uncontrovertible conclusion in this respect, considering the short time at the disposal of an administrative officer, I therefore, think that a reasonable officer could come to a conclusion (as to whether or not petitioner No, 1 was the Printer of the Punjab Punch ; whether or not the said weekly was being printed by him unauthorisedly and, consequently, whether orders under section 37 (2) could he passed, or actions under sections 54 and 56 could be taken, against him), which the District Magistrate Lahore did in this case. As such, even though his conclusions may not be absolutely correct, yet, in the light of the above-mentioned dictum of their Lordships of the Supreme Court, he cannot be said to have acted mala fide, in considering the Weekly in question to be an unauthorised publication and consequently in issuing a Search Warrant under section 37 in respect to the publication and ordering the petitioners' prosecution under sections 54 and 56 of the Ordinance. The petitioners can, however, press their point with regard to bona fides or mala fides of the concerned authorities if similar action or actions, which cannot be justified by the test of 'reasonableness' laid down by their Lordships of the Supreme Court in Shorish Kashmiri's case, continue to be taken against them.
15. It may also be mentioned that the learned Assistant Advocate-General urged that in fact it is the actions of the petitioners which are mala fides because the articles written by petitioner No, 1 and published by petitioner No, 2, against the Prime Minister (i,e, the then President) of Pakistan and the Governor of Punjab, savour of personal animus. I am afraid I have never had the opportunity of reading this particular Weekly magazine. Nor have any of the parties, to this writ petition filed any copies thereof with the writ petition or the Written Statement. As such, I am not in a position to Judge the correctness or otherwise of this allegation. However, on reading the observations of two of the learned Judges in the judgment delivered by their Lordships in Writ Petition No, 404 of 1972, pointed out by the learned Assistant Advocate-General (II) one gains the impression that the Weekly in question has no respect for the code of journalistic ethics and has exhibited an extremely low standard of journalism. The observations in question may be reproduced here :- ' Per Mr. Justice Muhammad Afzal Cheema at pages 144-45 of the judgment printed by the Government.
"Before parting with these cases I would like to observe that while, prima facie, the criticism of President Zulfikar Ali Bhutto and his Government offered in Zindgi and Urdu Digest though expressed in a forceful and vigorous style does not smack of personal animus and is by and large confined to official acts and policies, on the other hand it is difficult to avoid an impression to the contrary in the case of Punjab Punch, which appears 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 any standards. Most of the Articles apparently contain scurrilous personal attacks on the President couched in intemperate and even obscene language at times or verging on pronography. No doubt, in Islam, even the highest in 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 if 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."
' Per Mr. Justice Muhammad Afzal Zullah at pages 316-17:- "On the other hand, it was pointed out that at least, in the case of `Punjab Punch', the journal published by another set of de tenus, it contained most objectionable language which, it was asserted, no civilized society would accept or permit..
' Some of the issues of 'Punjab Punch', which are on one of the 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."
' From a reading of the above-noted observations it appears that the journalistic standard exhibited by the petitioners through their Weekly Publication, the 'Punjab Punch' is lamentably low and that some of articles criticising the heads of Central and Provincial Government contained malicious and even scandalous attacks, which were sometimes couched in obscene language. If that is so, it is most reprehensible, to say the least, and I can only reiterate what my learned brother Mr. Justice Muhammad Afzal Cheema has observed in much more forceful and eloquent language namely, that where criticism goes beyond the limits of reasonableness or savours of malice, the ordinary law of defamation is always available to protect the dignity, honour, and reputation of the humblest, as well as the highest of citizens of this country. Even in England, from where the concept of freedom of speech and press has been taken by us, such excesses by the press are controlled by invoking the ordinary laws of the land. I am quite sure it would prove equally efficacious here.
16. Before parting with the case I may also mention that on 31-8-1973 the learned counsel for the petitioners prayed that the petitioners should be granted interim relief by way of permission to publish the Punjab Punch which was due to come out on the next Sunday as the declaration (under section 7) with respect to it had not been cancelled. The learned Assistant Advocate- General appearing for the Government admitted that the Declaration of the Punjab Punch had not been cancelled but stated that if it was printed by any person other than the one authorised by the District Magistrate in that behalf, the District Magistrate would be at liberty to seize the same. Since the question of the existence or otherwise of the right, in law, of Mr. Muzaffar Qadir petitioner No, 1 to print the said Weekly was disputed and was yet to be decided, I ordered only that each side could do to what it was entitled under the law to do. On the next date of hearing i,e, 7-9-1973, the petitioners again submitted that they feared that if the said Weekly paper is not brought out on Sunday, the 9th September 1973, the Government may take up the position that the declaration with regard to it stood annulled by virtue of the operation of section 9 of the Ordinance and they (the petitioners) would thereby suffer an irreparable loss. They requested, therefore for an order permitting them to publish the said Weekly. During the arguments the petitioners also pointed out that even earlier, when the petitioners were arrested and detained for the alleged violation of Martial Law Orders Nos. 89 and 16(a) for a period of about two months, and were unable to bring out some issues of the Punjab Punch, the Government had taken the stand that the declaration of the said Weekly stood automatically annulled by virtue of the operation of section 9 of the Ordinance. They (the petitioners) said that they had to file a writ petition (No, 1048/72), and then an L. P. A. (No, 548/72) to get a verdict from this Court that the publication of the said Weekly during the period of their aforementioned detention was beyond their control and that therefore, the declaration under section 7 of the Ordinance, did not stand annulled. They submitted that if the arguments in the present case are prolonged and the petitioners are not allowed to publish the magazine during the pendency of the writ petition, the respondent is, again, going to declare that their declaration (under section 7), in respect of Punjab Punch stands annulled under section 9, for non-publication for more than two weeks. The learned Assistant Advocate-General of course objected to the passing of an order permitting the publication of the Punjab Punch till the decision of the writ petition. He conceded however that if more than two successive issues of the magazine are not brought out during the pendency of this writ petition, the Court would take up the stand that the declaration with respect to the Punjab Punch is automatically annulled by virtue of the operation of section 9 of the Ordinance.
' After considering the pros and cons of the matter, I did not accede to the petitioners' request and did not pass an order allowing the petitioners to print or publish the Punjab Punch, during the pendency of the writ petition. The result was that it was no longer within their control to bring out any further issues of the said weekly. I, felt however that if the question with regard to the 'annulment' of its declaration, by virtue of the provisions of section 9, was not clarified at that stage, it may result in unnecessary complications. I, therefore clarified that any delay (in the publication of the Punjab Punch) due to the pendency of this writ petition shall not adversely affect any of the parties and the declaration (under section 7) even if it is in someone else's name (i,e, in the name of Muhammad Sarfraz), would not stand annulled, because in the circumstances of the case the delay or the default in printing or publishing the Weekly shall not be wilful or deliberate. Since the judgment has now been written, it must be clarified once again that, for the reasons given above, any default or delay in the publication of the Punjab Punch during the pendency of this writ i,e, from the date of its filing till the date of announcement of its judgment shall not have the effect on the annulment of the Declaration, (under section 7), in respect of the said Weekly.
17. With the above observations the petition stands disposed of as partly accepted.