' GUL MOIrAMMAD KHAN, J--The appellant is a Producer of the motion picture `Khatarnak'. It was duly certified by the Central Board of Film Censors, Lahore (hereinafter called the Censor Board), on 17th August 1974, after excising portions of six scenes, about 43 feet in length, of the film. The certified film was exhibited on 23rd August 1974, in eleven cinemas at Lahore and at 14 cinemas in the `mofassil' districts. It is stated by the appellant that the film had a tremendous success which aroused jealousy and ill-will of other Producers, Exhibitors etc., who started nefarious propaganda campaign, saying that the film in question was full of vulgarity and obscenity and abounded in undesirable scenes of sex and crime. There was a spate of protests in the press by individuals and certain organizations. 'Representations were also made to the local authorities as well as the Central Government.
2. Mian Hamid Yasin, M. N. A. Who was a member of the Censor Board which certified the film, saw its exhibition on 27th August in Naela Cinema, in the company of Mr. Abdul Rashid, Additional Deputy Commissioner, Lahore, and Sub-Inspector of Police Post, Lower Mall, Lahore. And being convinced that the film was not exhibited in the form in which it was certified, seized the entire length of the print from the cinema and took it away. Mian Hamid Yasin then made a written complaint to the District Magistrate, Lahore, who in exercise of his powers under section 5(2) of Censorship of Films Act, 1963 (hereinafter referred to as the Act) suspended the exhibition of the film in the District of Lahore, till such time as the appropriate authority issued fresh orders. On the same day he communicated, his action to the Central Government and solicited its order under section 5(5) of the Act. The appellant challenged that order in Writ Petition No, 1602 of 1974 on which a learned Single Judge of this Court granted an interim relief by keeping in abeyance the order dated 28th August of the District Magistrate, Lahore, till such time as the appropriate authority dealt with the representation of the members of the Censor Board. It appears from the show-cause notice as well as the record of the Central Government that the film was again seen on 29th August by seven persons including Mian Hamid Yasin, four of whom were members of the Censor Board, Lahore. They also sent their report to the Central Board of Film Censors, which in turn moved the Central Government to cancel the certificate of the film under -rule 21. The Central Government, instead, issued a notice to the appellant on 5th December 1974, requiring of him to show cause as to why the certificate of the film be not cancelled. The appellant received this notice on 10th. He was allowed seven days for reply which meant that he could send his reply uptil 17th September. The Central Government, however, without waiting for the reply, cancelled the certification of the film on 12th and -informed the appellant telegraphically. The appellant assailed that order in Another Writ Petition No, 1702 of 1974 in which it was alleged that the order decertifying the film had been passed orally and had not been notified. This Court, therefore, directed that the oral order shall not be implemented. The Central Government, on the other hand, withdrew its order of the cancellation of the certificate on the same date and directed issuance of a fresh show- cause notice.
3. The matter was again taken up by the Central Government which issued a show-cause notice dated the 23rd October 1974, to the appellant. The notice stated that it was being issued on receipt of a report from the Central Board of Film Censors. It also detailed all that material that had been excised by the Central Board of Films Censor but again included in exhibition. Some other material which had not been presented before the Censor Board at the time of certification was also alleged to have been included later in the film. The Producer/appellant was thus asked to show- cause as to why the certificate of the film be not cancelled. The appellant vide his reply dated the 31st October 1974, wholly denied all the allegations and submitted that the film had been exhibited exactly in the form in which it had been certified. He also denied having added with the certified film the excised or other unauthorised material. Mala fides on the part of Mr. Hamid Yasin were also alleged. It was stated that in order to oblige a rival section of the film industry, to avenge the failure of film 'Shikar' in which he is generally known to have a share, and to justify his high-handedness of raiding the cinema in the company of the Additional Deputy Commissioner etc., he had prevailed upon the District Magistrate Lahore, to issue an order under section 5(2) of the Act. To sum up his reply, the Producer/appellant in para. 7 of his reply stated as follows:- "7. To sum up the position is that-
(a) the Press report published in the Daily Mashriq dated August 27, 1974 was false and inspired by the rival film producer ;
(b) the orders dated 28-8-74 passed by the District Magistrate Lahore was procured from him by Mr. Hamid Yasin, M. N. A. In the circumstances stated above and the said order has already been held to be illegal by an order dated 3-9-74 of Mr. Justice Dr. Nasim Hassan Shah, Judge, Lahore High Court, Lahore, and
(c) the representation by 7 signatories, which has been made the basis of show-cause notice under reply was prepared for being presented before Mr. Justice Dr. Nasim Hassan Shah in order to prejudice the learned Judge and to defeat our case in the High Court. Its contents otherwise are absolutely false and highly exaggerated.
(d) The picture is being exhibited successfully in the form in which it had been approved by the Censor Board and the Censor Board cannot produce any evidence to disprove our statement.
' Under the circumstances the show-cause notice is wholly uncalled for and merits to be discharged."
' The appellant also stated that the ban on his film caused him a loss of rupees five lace.
4. On receipt of his reply, the Central Government, in the Ministry of Education, referred the matter to the Minister to pass a final order. It was stated in the summary put up to the Minister that quite a few complaints about its vulgarity had been received by the District Magistrate, Lahore, Censor Board Lahore, and the Central Government. It also referred to the second showing of the film on 29th August 1974, which was seen by 7 persons including Mian Hamid Yasin. The summary also referred to the fact that after the receipt of the reply of the appellant to the show cause notice, the Central Government consulted the Law Division which opined that "there is enough material on the file to show that the film contains obscene material and that its decertification under section 5(5) of the Act will be justified." The file then remained under reference and discussion with the Central Board of Films Censor and the Law Division. On 22nd January 1975, the Law Division opined that cancellation could be legally made under rule 21(1) of the Censorship of Films Rules. This action seems not to have been implemented and further reference was made to the Central Board of Films Censors and the State Films Authority for their views. Finally on the 1st May 1975, the Director- General State Films Authority remarked that Film `Khatarnak' should be decertified. This was agreed to by the Vice-Chairman, State Films Authority and ultimately agreed to by the Education Minister.
The order to decertify was then published vide Notification dated the 8th July 1975. The appellant challenged that order in Writ Petition No, 1623 of 1975 but the same was dismissed by a learned Single Judge of this Court on 2nd July 1975. He now challenges this order through the present intra- Court appeal.
5. It is contended by the learned counsel that the appellant's film had been decertified on the ground that it had been exhibited alongwith the excised portions as well as some unauthorised material which had never been shown to the Censor Board. The learned counsel read out sections 5 and 7 of the Act to say that firstly his film could be decertified only for such reasons as are given in section 7 and secondly in accordance with rule 22 of the Censorship of the Films Rules. The learned counsel for the respondent, on the other hand, submitted that as the appellant exhibited a certified film with some unauthorised material the case was governed by rule 21(1) under which action had been taken. He further submitted that rule 21(3) and not rule 22 applied to the situation and that as the appellant had been allowed a reasonable opportunity to submit a reply to the show-cause notice, the impugned action was perfectly valid and legal. Before we discuss the import of the above-noted legal provisions it will be useful to have a look at the Scheme of the Act.
The object of the Act as given in the Preamble is to provide for the censorship of the films and for decertification of certified films in the interest of law and order, in the interest of local film industry or in any other national interest. This Act extends to whole of Pakistan. It constitutes an 'authority' for achieving its objects in section 4 and provides for an appeal to the Central Government if the applicant for a certificate feels aggrieved against the order of the 'authority' refusing to certify a film. The procedure regarding decertification is provided in section 5. The District Magistrate is vested with a power to temporarily suspend a licence and refer the question to the Central Government. The Central Government can suo motu also decertify a film under section 5(5) or section 7. Section 8 provides a penalty for exhibiting an uncertified film or a certified film without the mark of an authority or which has been altered or tampered with in any way since such mark was affixed hereto or for any other contravention of the Act or the Rules. The punishment comprises of fine upto Rs, 1,000 and Rs, 100 for each day that the offence is continued. The film may also be forfeited and the licence of the Cinema granted under rule 3 of the West Pakistan Cinematograph Rules, 1962, can also be cancelled upto three months.
6. The above resume of the provisions of law leads us to infer that in spite of the fact that a Censor Board has found a picture fit for exhibition, it might be objected to in a particular local area or by the general public orA other organizations. Sections 5 and 7 take care of such a situation. In that event the film may be re-examined by the Chairman or even the Board, to satisfy itself about the exceptions taken by the objectors, at the instance of the Central Government acting suo mom or on complaints. Rules 21 and 22 deal with the cancellation of the certificates and re-examination of the film before decertification. A close scrutiny of these two rules shows that provisions as contained in rule 21(1) apply to a situation where the film is exhibited in a B form other than the one in which it was certified. This would include a case where some unauthorised material including the excised portions is exhibited alongwith the certified film. However, before an action under rule 21(1) is taken the person concerned has to be given an opportunity of representing his case to the Federal Government. Rule 22 makes it absolutely clear that if the objection is about a certified film whether it has been conveyed by the District Magistrate under section 5(4) or whether it is in view of the objection having been raised by a member of the Board or an individual or an association etc. The Central Government may direct the Chairman to examine the film. The Chairman may, in turn, if he considers it desirable, lay it before the Board for consideration. The film may then be re-examined by the Board and its opinion conveyed to the Central Government which shall pass such orders thereon as it deems fit. Sub-rule (6) of this Rule also lays down that an opportunity of representation before the Central Government shall be allowed to the applicant.
7. The objection in the case in hand was that the film in question had been exhibited alongwith the excised and some other unauthorised material. There was thus no question of re-examination of the film under rule 22 as claimed by the appellant, but only a necessity to prove the bare allegations as made in the show-cause notice. We are, therefore, of the view that sections 5 and 7 read with rule 22 do not apply to the facts of the case. The contention of the respondents that rule 21(1) was applicable is, therefore, upheld.
8. There is, however, a condition precedent to the exercise of jurisdiction under rules 21 as well as 22 that the person to be affected must be allowed an opportunity of representing his case to the Central Government before any order prejudicial to his interest is passed. Rule 21(3) reads as follows :- "21(3)-No order under this rule shall be made to the prejudice of any person unless he has had an opportunity of representing his case to the Federal Government."
What falls for determination is the scope of the phrase 'an opportunity of representing his case'.
The dimensions of this opportunity cannot be laid down with exactitude. It will depend on the facts and circumstances of each case as to whether an opportunity provided to a petitioner was adequate or not in the given circumstances. It may, however, be broadly stated that in a case involving a pure question of law, an opportunity to make a written representation would be sufficient. In another case an oral hearing or a hearing coupled with a written representation may answer the statutory requirement. In yet other cases where proof of allegations calls for a factual inquiry or where the allegations are based on oral testimony of certain persons, the person to be affected must not only be allowed to know beforehand the material that is to be used against him but he should be allowed to cross-examine the witnesses and produce evidence in rebuttal if necessary.
' We may here refer to some observations of a Division Bench judgment of this Court in Abdul Majid's case (1), with advantage :- ' . It pained us to hear an argument from the bar which is to the effect that valuable rights of citizens can be taken away without even hearing them and permitting them to test the credibility of witnesses simply because it would cause inconvenience to certain authorities. We have always been told that convenience and justice have never been on speaking terms with each other. We may say it with all the emphasis at our command that it is not possible for us to permit justice to be sacrificed at the alter of convenience. If during the dispensation of justice the giving of a fair opportunity to a person accused causes inconvenience to the accuser, then the former cannot be sacrificed at the altar of the latter. If it is a question of convenience alone, the inconvenience caused to the accused in the absence of a fair opportunity, is much greater than the so-called inconvenience caused to the accusers in producing the witnesses for cross-examination.........
17. We have, therefore, no doubt in our mind that by not informing the petitioner of the evidence that was being used against him for the purpose of finding him guilty and further by not affording him any opportunity to cross-examine such witnesses, the witnesses who made those statements, because in this particular case that was the only method by which the veracity of their statements could be tested, the Committee transgressed the basic and essential requirements of natural justice."
Lastly, every person is entitled to a legal representation, if he so chooses, unless it is expressly forbidden to him by a valid law. This right of representation is not only confined to meeting the case of the other side but also to represent his own case. In view of all that has been stated above the scope of this statutory provision may be wider but it is in no case less than the rule 'audi alteram partem'. In our view the essential requirements of this provision are that-
(a) the prospective victim must have a prior adequate notice of the case, charge or allegations that he has to meet ;
(b) he must have a reasonable opportunity to answer the case against him and put his own case ;
(c) the decision must be made only on the allegations and the material of which the notice had been given;
(d) he must have an unbiased and a fair hearing.
' After going through the record and hearing the learned counsel for the parties, we are of the view that the requirements of (a), (b) and (c) above hay not been fulfilled. The show-cause notice was initiated by Professor M. Iqbal Glll, Assistant Educational Advisor at the report of the Central Board of Film Censors which stated that the appellant had exhibited film Khatarnak' alongwith unauthorised material as detailed in the notice. In his written reply the appellant objected to the validity of notice by saying that the Federal Government alone was competent to issue such a notice and that Mr. Gill was not competent to do so. This objection has not been reverted to and even the Government record is silent. In any case, even if we have to accept
(1) PLD 1970 Lah. 416 ' that it was a valid notice, it made it clear to the appellant that the Central Government wanted to take action for the acts of commission as detailed in the notice and none else. The summary placed before the Minister shows that his attention had been invited to material other than the one on which show-cause notice had been based. The material referred to the Minister in the summary comprised the following:-
(a) Reports of the District Magistrates, Lahore, Lyallpur and Hydera bad ;
(b) Reports of Mian Hamid Yasin and other persons who had seen the film on 29th August ;
(c) Complaint of the Secretary, Pakistan Film Producers Association ;
(d) Press cuttings and other complaints.
' A perusal of the record shows that the items at (a), (b) and (d) above migh have attracted application of sections 5 and 7 read with rule 22. The appal lent thus was not apprised of the case that was being considered by the. Minister and, therefore, could not be expected to make an effective representation. In Annamunthodo v. Oil Field Workers' Trade Union (1), a member of the Union was charged with breaking four of its rules, for breach of which there was no powers to expel.
He attended the hearing which was adjourned, but chose not to attend the adjourned hearing. At that hearing he was proceeded against under another rule, breach of which did involve expulsion, and he was expelled. It was held that the expulsion was void as it was without giving notice of it to him. In Ridge v. Boldwin (2), the House of Lords ruled that a man is entitled to have the chapter and verse quoted against him and a full opportunity to rebut the allegation. In R. v. Industrial Injuries Commissioner Ex parte Howarth (3), the Minister had referred to a tribunal, a question as to the assessm ent of H's medical condition. The tribunal gave its decision on-another point altogether, which was annulled, as a new point had been taken, without bringing it to H's notice and without allowing him an opportunity to rebut. Another case which might bear some resemblance to the case in hand, was that of Errington v. Minister of Health (4). In that case the Minister, on a slum clearance order made by a local authority, heard the objections and made an inquiry before confirming the order. After the close of the inquiry there were various official communications and meetings between officials of the Ministry and of the authority as to the condition of the houses, which were inspected by them. No notice of these matters was given to the objectors. The Court of Appeal set aside the order of the Minister on the ground that consideration by the Minister of the material other than the one produced during inquiry, was against the rules of natural justice.
Similarly in R. v. Deputy Industries Inquiries Commission Ex parte Jones (5), a difficult medical question arose during the hearing, with regard to a claim of benefit made by Jones. The Commissioner sought the assistance of a medical specialist. He sent him the case papers and read to him his notes of evidence without the knowledge of the parties. The Commissioner then passed an order on the advice of the medical specialist. It was held that the Commissioner was not entitled to continue privately to obtain evidence without notifying it to the parties so as to give them an opportunity of having:,
(1) (1961) 3 All E R 621 (2) (1953) 2 All E R 66
(3) (1968) 4 K I R 621 (4) (1935) 1 K B 249
(5) (1962) 2 Q B 677 a further hearing or at least of commenting on the evidence. Precisely the similar view was taken by our Supreme Court in University of Dacca v. Zakir Ahmad (1).
' Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the 'elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and `to correct or controvert any relevant statement brought forward to his prejudice.' Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words, 'in order to act justly and to reach just ends by just moans' the Courts insist that the person or authority should have adopted the above 'elementary and essential principles' unless the same had been expressly excluded by the enactment empowering him to so act.
But even so, we find it difficult to accept the contention that they must also be freed from the necessity of acting in a manner which excludes every reasonable possibility of unfair action being taken. This can only be achieved by observing certain formalities which have been designed to assure the minimum essential principles of justice and fairness, by at least telling the person sought to be punished or condemned what are the allegations against him and by giving him a fair opportunity to correct or contradict any relevant statement to his prejudice..........
(The above underlining is by us).
The conclusion to be drawn from the above is that the person deciding a case-must inform the person of the allegations against him. He cannot act on undisclosed material or advice and that to validate his order he must inform the parties of all that material or evidence on which he would act.
The facts given above show that the notice referred to above did not comply with these requirements and that in fact no show-cause notice was given by the authority competent to pass the order.
9. Rule 21(3) does provide that the person to be affected must be given an opportunity of representing his case to the Central Government. This is different from meeting the case that has been put up against him. The reply to the show-cause notice was, therefore, not such a representation and it could not exclude a hearing which is the requirement of the rule of natural justice. The Chief Justice Burger of the United States Supreme Court in Goldberg v. Kalley (2), held that an opportunity to submit a statement in writing was not enough, the right to be heard means the right to be heard in
(1) PLD 1965 SC 90 (1) (1970) 39 U S 254 *Moro in italics] person. In Breen v. Amalgamated Engineering Union (1). Lord Denning suggested that a person is entitled to a hearing if he has some right, interest or legitimate expectation of which it would not be fair to deprive him without hearing him, whereas he need not be given a hearing if he is merely seeking a privilege, or, a privilege to which he has no particular claim. However, in another case Duravappah v. Fernando (2), a different approach was suggested. In that case a Minister who was so empowered under the law, dissolved a council on finding that it was not competent to perform its duties. This was done without affording the council an opportunity of being heard. The rule laid down by the Court was that a body vested with a discretionary power may be under an implied duty to observe rules of natural justice if the impact of its decision or act will be particularly severe on the legally recognized interests of the person directly affected i,e, it deprives him of liberty, property, status or livelihood or imposes a heavy penalty on him or casts a serious slur on his reputation. Precisely the same view had been taken by our Supreme Court since 1959. Their Lordships observed in University of Dacca case as follows t- "This Court has already had occasion to point out in at least three cases, namely, in the case of the Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45), Faridsons Limited v. Government of Pakistan PLD 1961 SC 537 and Abdur Rahman v. Collector and Deputy Commissioner, Bhawalnagar and others PLD 1964 SC 461 that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting 'the person or property or other right of the parties concerned.' This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.
' From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case."
The rule is based on Qur'an and Sunnah and its origin can be traced back. The indication by the learned Judges who decided the case of Cooper (3), about the opportunity given by God Almighty to Adam is not supported by any text. The Holy Qur'an at various places has disclosed that each and every deed of every person, howsoever minor or insignificant, is being recorded by the Guardian Angels. Though there could be no doubt about
(1) (1971) 1 All E R 1148 (2) (1967) 2 All E R 152 (3) (1863) 14 C B N S 180 the correctness of that record, yet the scrolls so prepared shall be given to each and every person on the Day of Judgement and they shall be asked if they have anything to say against it. Reference may be made to Verses 13-14 of Sura Bani Isra'il :- "13. Every man's fate We have fastened on his own neck : On the Day of Judgement We shall bring out for him a scroll, which he will sea spread open.
14. (It will be said to him) 'Read thine (own) record : Sufficient is thy soul this day to make out an account against thee'."
' In Sura Namal, Verses 20-21 the following is referred to Prophet Salaiman (Solomon) 1- "20. And he took a muster of the Birds : and he said : 'Why is it I see-not the Hoopoe?
Or is he among the absentees?
21. I will certainly punish bim with a severe penalty, or execute him, unless he brings me a clear reason (for absence)'."
' Even the Satan was given this opportunity when he refused to prostrate before Adam. The same rule was applied by the Holy Prophet to Hazrat Hatib's case. Hatib had sent a letter through a woman named Sara to the Koreish of Mecca divulging information about the preparations being made by the Muslims for the intended invasion of Mecca. This act of Hatib was revealed to the Holy Prophet through.a Divine message. Hazrat Ali and two other companions were, therefore, sent to get the letter back from Sara who was on her way to Mecca. The letter was recovered from her and produced before the Holy Prophet. The offence stood proved and, therefore, Hazrat Umar sought the permission of the Holy Prophet to kill Hatib but he was forbidden to do so as the Holy Prophet wanted to hear him first before taking any action. It appears that Hazrat Hatib was later excused on his furnishing explanation for his objectionable act (See Sura Mumtahana, V. 1-Tofheem-ulQur'an by Abul 'Ala Maududi, Vol. V, page 425(5). This rule is so firmly established in our system of law that in Abdus Saleem Khan v. Karachi University (1), our Supreme Court held that the maxim 'audi alteram partem' shall be read into every statute unless specifically excluded and that a tribunal shall act fairly and justly.
' This rule is now recognized throughout the civilised world by all the-Courts. The rule has been made applicable to judicial as well as administrative bodies as held in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (2),. In Ikram Bus Service's case (3), it was held that even an administrative body such as R. T. A. Is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law.
Therefore, in view of the law laid down by the Supreme Court in the University of Dacca-case and observations made in other cases, the appellant had a right to know the nature of allegations against him. He should have been allowed an opportunity to 'correct or controvert any relevant statement brought forwards to his prejudice'.
(1) PLD 1966 SC 536 (2) PLD 1959 SC (Pak.) 45
(3) PLD 1963 SC 564
10. Even the last essential as set down in para. 8 above was not complied with as there was no fair consideration of the case put forth by the appellant in his written reply to the show-cause notice.
The allegation against the appellant was that he was exhibiting the certified film with unauthorised material. It was based on the report of Mr. Hamid Yasin and others, who allegedly saw the film again on 29th August. The report reached the Central Government before 5th September when the first show-cause notice was issued. The Central Government thus maintained on 5th September as well as on 23rd October 1974, when it issued the second show-cause notice, that the appellant had been exhibiting his film alongwith excised and other unauthorised material. In his reply the appellant categorically denied the allegations about exhibiting any unauthorised material, putting the Censo Board and the Central Government to prove it. He further submitted that portions mentioned as i(a), 11(n) and ii(d) had actually been shown to the Censor Board which duly certified them for exhibition. (It is to be noted that there I no item like 11(n) in the show-cause notice). The entire length of the objectionable material was in the possession of the District Magistrate after it was seized by the A.D.C. (G) in the company of Mian Hamid Yasin. The excised portions were also available with the Censor Board at the relevant time as provided by rules 14(8) and 14(10). The certificate also carried at it back the description of the excised portions. The Central Government thus had no difficulty to compare the seized film with the excised portions, in its K possession, to prove the allegations. It may be important to note here that there was a time gap of about 10 months between the first show-cause notice and the decision given on 8th July 1975. The learned counsel for the respondents have not referred to any report or other document to say that the Central Government did compare the seized film with the excised material to satisfy itself about the allegations against the appellant. The summary may have been merely initialled by the Education Secretary and the Education Minister but no opinion of any sort had been recorded. In the circumstances, we have no option but to hold that the Central Government did not apply its own mind to the case before it and, prima facie, acted mechanically in accepting the allegations as contained in the report. It was held in Muhammad Iqbal v. Chief Settlement & Rehabilitation Commissioner (1), that acceptance of a report mechanically without applying mind was unlawful.
The following observations of a Division Bench of Karachi High Court in S. A. Haroon v. Collector of Customs, Karachi (2), may also be reproduced below with advantage:- ". . . .To my mind, to decide a case and the evidence of which no notice is given to the persons proceeded against, would amount to doing an act in disregard of the principles of natural justice as the person has been denied his natural right to explain and controvert what is said against him, and what is treated as a proof of his guilt. . . ."
' In Muhammad Bakhtayar v. The Province of West Pakistan (3), their Lordships of the Supreme Court observed as follows:- "It is entirely incorrect to suggest, as was suggested in the writ petition, that Mr. Jafri's order was 'nothing but the reproduction of the entire C. I. D. Secret report'. If that had been the case, and the appellant not having been offered an opportunity of challenging the correctness
(1) PLD 1970 Lab. 780 (2) PLD 1957 Kar. 576 (3) 1970 SCMR 473 of the C. I. D. Reports, there would no doubt have been substance in his contention that the order of Mr. Jafri being of a quasi-judicial nature was vitiated by violation of a basic principle of justice. But, we find that the order is adequately and strongly grounded on a number of other considerations and that it received support from clear admissions by the appellant himself. In the circumstances, the order of the High Court dismissing the writ petition would appear to be correct."
' Their Lordships of the Supreme Court in Ghulam Mohyuddin's case (1), in a similar situation observed :- . ..In these circumstances, we are of the opinion that it behoved the Chief Settlement Commissioner to apply his own independent mind to the questions raised before him in accordance with law. By merely countersigning on the note of the Settlement Commissioner (Policy), we are clearly of the view, the Chief Settlement Commissioner bad not exercised the jurisdiction vested in him in accordance with law and that there was no proper disposal of the revision petitions filed before him."
11. The contents of the rules do not show if a copy of certified film is retained by the Censor Board.
The only material that the Board has in its possession is three typed or printed copies of the synopsis of the film and of full text of the songs, if any, in respect of the locally produced or vernacular films as supplied to it under rule 12(5). At the back of certificate there has to be an indication of the material that had been excised. It would the appear that if an exhibitor is showing unauthorised material, other than the one excised under the rules it will be very difficult for the Board to prove from any documentary evidence that that material did not form part of the certified film. This might constitute a very serious omission in the law, requiring an immediate attention of the Legislature, but we are not concerned with it in this judgment. However, to prove an allegation that a person had exhibited some unauthorised material, the accused shall have to rely only on the memory of the members of the Censor Board, who saw the film at the time of certifying it. What weight can be attached to such an evidence is beyond the scope of this judgment? Anyhow in para. 5 of his reply, the appellant unequivocally asserted that portions of the film, as mentioned a serials i(d), 11(n) and ii(d) of the show-cause notice, bad been duly shown to the Censor Board before certification and that they had approved those. In his view, therefore, those portions could not be termed as unauthorised material. In such a situation it was incumbent on the Central Government either to have accepted as correct the stand taken by the appellant and resorted to rule 22 or it should have insisted on strict proof of the allegations. It appears that the Central Government was not even conscious of the objection and it was never attended to. In the circumstances the appellant was right in saying that the representation made by him was never considered and that he had been denied the protection as provided in rule 21(3).
12. As said above, the Central Government gave no reasons for the decision it made. The show- cause notice proceeded on material other than what was referred to the Central Government for its decision. The appellant categorically denied all the allegations. The decertification, however, can be ordered only for those reasons as are given in the Act or the Rules. Lack of (1)PLD 1964 SC 829 reasons would also make it impossible to say as to what material was considered by the Central Government and which one accepted or rejected and why? The absence of reasons in such a situation casts a cloud on the plea of fair hearing. Further, it is only the reasons which would show if the Central Government did apply its mind. Admittedly there is no specific requirement of law that the Central Government must give its reasons while taking an action under rules 21 or 22. It was however, held in R. v. Sykes (1), that the Court recognised the existence of an implied duty of the licensing justices to give reasons for refusal to grant a license. In Breen v. Amalgamated Engineering Union. Lord Denning observed that the giving of reasons is one of the fundamentals of good administration and that where there Is a right to be heard, there is a right also to reasons for the decision. In Padfield's case (2), the Minister gave reasons, for his decision not to refer the case to the Committee. On the legality of the decision being questioned the Minister took up the plea that as he was not called upon to give reasons, he should not be put in any worse position if he gave the reasons. The House of Lords rejected the argument with the observation that 'it may be if circumstances warrant it that a Court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion' and quash the order. No case has been brought to our notice wherein the Suprem Court may have in so many words laid down that statutory functionarie must give the reasons for their decision. However, the rule 'conscious application of mind' laid down by the Supreme Court in so many cases does, to our mind, cast a duty on every tribunal to give reasons for their decisions. The rule is that the record must show that the tribunal did consider the questions of law and fact arising in the case before it gave its decision. I means that the order of the tribunal must be a speaking order and it should hold out that its maker was conscious of the questions to be considered and decided and that he did apply his mind to them. In Muhammad Farooq Imam v. Claims Commissioner (3), the Claims Commissioner had two provisions of law available to him to interfere with the order before him. In an ordinary case he could act within 90 days whereas under the other he could do so at any time. The Claims Commissioner, however, did not state which particular power he was exercising. It was held that the Claims Commissioner had to apply his mind to reach a conclusion that the circumstances did justify his acting beyond the ordinary period of limitation. Similarly in Azmat Ali's case (4), it was observed by their Lordships that there was nothing in the order of the Settlement Commissioner to show that he was even conscious that the question of limitation arose. In Tufail Muhammad's case (5), their Lordships looked for the same situation to know if the Claims Commissioner was conscious of the need for recording a finding as to the existence of sufficient cause. In Jamal Shah v. Election Commission (6), their Lordships observed as follows:- ' There may be error apparent on the face of the record which may be due to an oversight; or the tribunal may not have properly applied its mind to an aspect of the matter before it. There is duty cast on every judicial tribunal to properly apply its mind to questions of fact and of law. If there be any failure in the proper application of the mind the High Court can always quash the order and direct that the case be decided afresh in accordance with law. . . ."
I) (1875) 1 Q B D 52 {3) PLD 1964 SC 585
(5) PLD 1965 SC 269
(2) (1968) 1 All E R 694 (4) PLD 1964 SC 260 (6) PLD 1966 SC ' The Code of Civil Procedure applies to the Constitutional proceedings before a High Court in view of Hussain Bakhsh v. Settlement Commissioner (1). According to Order XLIX, rule 3, C. P. C. The provisions as contained in Order XX, rules 1 to 8 and Order XLI, rule 35, C P. C. Do not apply to a High Court. The net result of the above is that a High Court is not obliged to give reasons for its decision.
In spite of all this their Lordships of the Supreme Court insisted in Mollah Ejahar Ali v. Government of East Pakistan (2), that the High Court must pass a speaking order manifesting that it applied its mind to the resolution of the issues before it. It will be useful to reproduce the relevant observations hereundert- "To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately purfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying 'there is considerable substance in the petition which is accepted.', should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached. In this case the learned counsel naturally criticised the High Court's order for its utter barrenness but be was definitely at an advantage in presenting the various aspects of his argument without any hindrance offered by the ineffectiveness of the impugned order."
In spite of the unambiguous provisions of law as contained in Order XLIX, C. P. C. Referred to above, their Lordships of the Supreme Court thought it necessary for the High Court to give its reasons for the order, as it could be subject of an appeal before it. The same reason would apply to a Tribunal whose orders are open to judicial review by the High Court under its Constitutional jurisdiction. The conclusion that we draw from the law laid down by the Supreme Court in the cases referred to above is that all the Courts and tribunals who are required to apply their mind to facts and law in order to reach a decision in cases before them, must give their reasons for the decision. All Courts and tribunals are bound to follow the law laid down by the Supreme Court in view of Article 189 of the Constitution. We, therefore, hold that a tribunal, empowered to pass orders, which may mean depriving a person of his liberty, property, status or livelihood or impose a penalty or cause a slur on his reputation, must give its reasons for the order.
(I) PLD 1970 SC 1 (2) PLD 1970 SC 173 We may, however, not be understood to mean that the tribunals should write elaborate judgments as is done by the Courts of law but what we are trying to say is that there must be something on record showing that they had considered the questions raised before them and did apply their mind to them before coming to a: conclusion. The judgments as referred to in para. 10 above also fortify us in our views. There is, however, nothing on record showing that the Central Government applied its mind in this case. The impugned order, therefore, cannot be condoned.
13. There is yet another important aspect of the case. The allegation against the appellant, if proved, may form the basis to initiate proceeding for conviction under section 8 of the Act. A Court seized of the case on complaint made by an authority authorised under section 9 may impose fine upto a sum of Rs, 1,000 for each offence and an additional fine of Rs, 100 per day if the offence is continued. The Court passing the above sentence may also order that the film shall be forfeited to the Central Government. Licence of the cinema wherein the illegal exhibition was made may also be suspended for a period upto three months. In view of these severe penalties, the proceeedings to be taken under rule 21 are quasi-criminal proceeding with regard to which strict proof as envisaged in criminal proceedings is required. The observations of their Lordships of the Supreme Court is Muhammad Saeed v. Election Petition Tribunal West Pakistan (1) applicable to such a situation, read as follows:- ' But if the Tribunal has made no honest effort to arrive at a correct conclusion or has come to a decision which no reasonable body could ever have come to or has, on no evidence, recorded findings which have deprived persons of important constitutional rights the exercise of which is the very basis on which the whole constitutional fabric rests, this Court will be acting in betrayal of the Constitution if on any such ease being made out it did not interfere with the verdict of the Tribunal."
' Another portion at page 103 is as under :- "A charge of a corrupt practice is a quasi-criminal charge and, as the Tribunal has stated in its report, the great volume of authority in the corpus, of election law is to the effect that such an allegation must be treated, for the purposes of evidence, on the principles applicable to the trial of criminal charges. One such principle is that in a case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person ' The punishment under the criminal charge of corrupt-practices could be imposed not by the election tribunal but on a complaint by a Court. The observations in the case would apply to the present case as well with full force. It was, therefore, necessary for the Central Government to have applied the same standard to the evidence before it as is applicable in the criminal cases.
' For the reasons given above, this appeal is accepted and the order dated 2nd July 1975, passed in Writ Petition No, 1623 of 1975 is set aside. The notification dated 8th July 1975, decertifying the appellant's film 'Khatarnak Is, therefore, declared to be without lawful authority and of no legal effect. This order, however, shall be no bar to the Central Government to proceed
(1) PLD 1957 SC (Pat.) 91 again in the matter in accordance with the law and to pass such order with regard to the allegations against the appellant as may be deemed proper. The respondent shall pay the costs of this appeal as well as the writ petition.