' This Constitutional petition has been filed to challenge orders dated 16-9-1998 (Annexures 'I & J') passed by the Federal Government, respondent No.1 through Secretary, Ministry of Culture, respondent No.4 rejecting the petitioner's appeal filed under section 7 of the Censorship of Films Rules, 1980. The petition was admitted for regular hearing on 16-12-1998. At the time of admission of the petition, the petitioner's learned counsel had urged that respondent No.4 did not pass a speaking order and illegally rejected the petitioner's appeal that the petitioner had submitted an application in writing on 22-6-1998 for personal hearing but without giving him an opportunity of being heard, respondent No.4 rejected the appeal vide notification dated 16-9-1998: that the petitioner was condemned unheard, hence the impugned orders were a nullity in the eye of law.
2. The petitioner wants Censorship Certificate for exhibition of the film titled "Legend of Love" imported by him in the year, 1989 after grant of N.O.C. By the competent authority. At one stage, the Special Censorship Board refused to issue the certificate. The copy of the order was not provided to the petitioner whereupon he filed W.P. No.5821 of 1994 which was disposed of with a direction to supply copies of the orders to the petitioner to enable him to avail of the remedy of appeal. The needful was done and the petitioner filed an appeal under section 7 of the Motion Pictures Ordinance, 1979 which was dismissed vide Notification dated 30-7-1995. It was challenged by the petitioner through Writ Petition No.11452 of 1995 which was allowed with a direction for deciding the petitioner's appeal afresh on merits in accordance with the provisions of rule 37 of the Censorship of Films Rules, 1980. The appeal was to be decided within a period of six months but the concerned authority took a fairly long time and dismissed the appeal vide order dated 16-9-1998.
3. The petitioner's learned counsel strenuously urged that the film was approved by the Appellate Committee for grant of Censorship Certificate; that the Government was bound to grant the Certificate accordingly and had no discretion in view of the provisions of Rule 37(6) of the Rules; that the impugned order was passed without hearing the petitioner; that the appeal was to be decided within a period of six months but the concerned authority took more than one year in deciding it; that the Government is acting with mala fide intentions and is responsible for causing great financial loss to the petitioner.
4. On the other hand, the learned Deputy Attorney-General candidly stated that it was not possible for him to defend the impugned orders because the same were passed without hearing the petitioner. He pointed out that in the comments it was mentioned in para. 10 that no date had been fixed for grant of opportunity of personal hearing to the petitioner as he had already been heard in person on 29-3-1995. The said hearing related to an earlier stage of litigation and could not have been considered for disposal of the appeal afresh after the remand order passed by this Court in W.P. No.11452 of 1995. This is a serious legal infirmity which alone is sufficient to vitiate the impugned orders. The petitioner's learned counsel desperately urged that since long the petitioner is suffering due to failure of the authorities to act in accordance with the law, therefore, this Court should finally decide the matter on merits to put an end to the petitioner's agony.
5. I am afraid, it is not possible for this Court at this stage to decide the matter on merits for more than one reason. Firstly, the Appellate Committee had made a recommendation for grant of Censorship Certificate with certain excisions of the film-scenes. After applying its own mind, the Government can suggest other excisions as well before accepting the recommendation of the Appellate Committee. For this purpose the film has to be carefully seen as a whole. This exercise is to be undertaken by the concerned State functionary. Secondly, it is not appropriate for this Court to substitute its own decision for that of the Government. Therefore, propriety demands that the Government should first give its own decision on merits.
6. The petitioner's learned counsel urged that the Federal Government was bound to accept the recommendation of the Appellate Committee and decide the appeal accordingly in view of the provisions of. Rule 37(6) of the Rules. The petitioner's learned counsel quoted the rule in these words:- "The decision of the Federal Government taken on the basis of report of the Appellate Committee shall be communicated to the appellant for compliance, to the Board."
' This rule was amended through the notification published in Gazette of Pakistan dated 5-9-1994.
Now the rule Teads as under:-- "The decision of the Federal Government taken after consideration of report of the Appellate Committee shall be communicated to the appellant for compliance, to the Board."
It clearly means that the Government has to consider the report of the Appellate Committee but is not bound by it. It can arrive at its own independent decision keeping in view the facts and circumstances of each case. Therefore, the Government may or may not agree with the recommendation of the Appellate Committee. However, if it disagrees with the recommendation it must assign reasons for the same.
7. In this view of the matter, the petition is accepted, the impugned orders dated 16-9-1998 (Annexures 'I & J') are declared to be without lawful authority and of no legal effect. The case is remanded to the Federal Government for a fresh decision of the petitioner's appeal on merits in accordance with the law after affording him a reasonable opportunity of being heard. The competent authority hearing the appeal is directed to decide the appeal within a period of four months after receipt of the order. Keeping in view the fact that the petitioner had to file Constitutional petitions before this Court repeatedly due to the failure of the Government to act in accordance with the law, respondents Nos.1 and 4 are burdened with cost of Rs.10,000 which shall be paid to the petitioner.