' NASIM HASAN SHAH, J.-This order will dispose of Letters Patent Appeals bearing Nos. 148, 149, 150 and 159 of 1972, as they raise common questions of law and facts.
2. The facts, which form the background of these appeals, may be shortly stated as follows : Dr. Ejaz Hassan Qureshi was the Printer and Publisher of a weekly magazine, known as "Zindagi". He had made and subscribed under section 7 of the West Pakistan Press and Publications Ordinance, 1963 (hereinafter called the Ordinance) a declaration in the prescribed Form "B' before the District Magistrate, Lahore, for printing and publishing of the said weekly. The declaration was duly authenticated by the District Magistrate under section 12 of the Ordinance.
3. Dr. Ejaz Hassan Qureshi was also the Printer of a monthly magazine, known by the name of "Urdu Digest". Its publisher was Mr. Altaf Hussain Qureshi, who was also its Editor. They had made and subscribed under section 7 of the Ordinance a declaration before the District Magistrate, Lahore, in the prescribed Form 'B' for the printing and publishing of the said monthly, which was duly authenticated by him under section 12 of the said Ordinance and the said magazine was being published for the last about 12 years.
4. At about 9 p.m. On 5th April, 1972, Dr. Ejaz Hassan, Printer and Publisher of the weekly "Zindagi", Mr. Mujib Shami, its Editor, as also Mr. Altaf Hussain Qureshi, Editor and Publisher of the monthly "Urdu Digest" were arrested under the orders of the Governor/Martial Law Administrator, Zone 'C', Lahore, for offences under Martial Law Regulations 16(a) and 89. On the next day, the Martial Law Administrator, Zone 'C', also promulgated a Martial Law Order 259, whereby printing and publishing of the weekly "Zindagi", the monthly "Urdu Digest" and another weekly "Punjab Punch" was banned.
Habeas corpus petitions were filed in the Lahore High Court to challenge the arrest of the said journalists, but while they were still pending, all of them were convicted by a Summary Military Court at Lahore on 13-4.1972 and sentenced to R.
1. For one year. In the event, however, they were released by the Provincial Government before the expiry of the said period on 8-6-1972. The last issue of the weekly "Zindagi", before the arrest of its Editor, Printer and Publisher, was the issue bearing No, 32 dated April 3-9, 1972. On their release, the printing and publishing of the weekly "Zindagi" was resumed and an issue bearing No, 33 for the period 17/23 July, 1972, was published. Similarly, before the Editor, Printer and Publisher of the monthly "Urdu Digest" were arrested, they had published issue bearing No, 6 dated April 1972. On their release an issue No, 7 was published on 2-7-1972 for the month of July 1972.
5. The Director Public Relations, Lahore, on 25-7-1972 sent a memorandum, informing the Printer and Publisher of the weekly "Zindagi" that as they had failed to print and publish the weekly for two weeks in a calendar month within the period from 10th April to July 16, 1972, therefore the declaration made and subscribed under section 7 and authenticated by the District Magistrate under section 12 of the Ordinance had become null and void. It was added that such an effect could have been avoided by recourse to the provisions of subsection (5) of section 9 of the Ordinance, but as recourse was not had to its provisions within the period contemplated the declaration automatically stood annulled. He further intimated that "no further publication could have been made except by having submitted a fresh declaration and on having got the same authenticated under section 7 and section 12 of the Ordinance". On the same date he also addressed a memorandum to Dr. Ejaz Hassan, Keeper of the "Urdu Digest" Printers, that no issue of the monthly "Urdu Digest" was published within May and June 1972. He went on to add that "there being default of publication for two months by virtue of subsection (3) of section 9 of the Press and Publications Ordinance, 1963, the declaration of the Monthly has already become null and void."
Separate replies to these communications were sent on 27-7-1972 in which it was maintained that the declarations were intact and that the Printers and Publishers had the right to continue the printing and publishing of the weekly "Zindagi" and the monthly "Urdu Digest".
6. On 31st July, 1972, the Sub-Inspector, New Anarkali, Lahore, raided the Press of the weekly "Zindagi" and the monthly "Urdu Digest" on the authority of the search warrants issued by the District Magistrate, Lahore, to seize the printed material, which might have been printed with regard to the weekly "Zindagi" and the "Urdu Digest" on or after 28th July, 1912. The said action was taken after the above-mentioned advice, given by the Director Public Relations had been ignored, on the ground that the "Newspapers" in question had become "unauthorised newspapers" and the above action could be taken against them in view of the provisions of section 37 of the Ordinance. Aggrieved by the said action, the Printer and Publisher of the weekly "Zindagi" filed a writ petition before this Court (W. P. No, 1385/72). Similarly, the Printer and Publisher of the monthly "Urdu Digest" also challenged this action by a writ petition (W. P. No 1064/ 72). In both the writ petitions, it was prayed that it be declared that the declaration was intact and operative and that the respondents had no authority to stop the printing and publication of the weekly "Zindagi".
7. Dr. Ejaz Hassan Qureshi also instituted a third writ petition in this Court (W. P. No 1136/72) alleging that under certain general search warrants issued by the District Magistrate, Lahore, in favour of Station House Officer, New Anarkali Police Station, Lahore, the said respondent was making repeated searches and by the aforesaid writ petition prayed that the general search warrants issued by the District Magistrate, Lahore, in favour of the S. H, O. Police Station, New Anarkali, which he was using for repeated searches, be declared as being null and void and of no effect.
8. The third newspaper, whose case is before us, is the weekly "Punjab Punch". Mr. Hussain Naqi was its Publisher and Editor while Mr. Muzaffar Qadir states that he was its Printer ; although according to the respondents, the record shows that once Sardar Muhammad Sarfaraz was declared to be the Printer of the Paper. Both Mr. Hussain Naqi and Mr. Muzaffar Qadir were arrested on 5-4-1972 for offences under Martial Law Regulations 16(a) and 89 and the publication of the weekly "Punjab Punch" was banned, alongwith the weekly "Zindagi" and the monthly ''Urdu Digest" through Martial Law Order 259. This detention was challenged by them by filing Writ Petition No 404/72 before this Court, but while this petition was pending, Messrs Hussain Naqi and Muzaffar Qadir were convicted and sentenced by the Summary Military Court to one year's R. I. And to a fine of Rs, 2,00,000 each They were, however, released on 28-6-1972. After being released from jail, they addressed a letter to the Government of the Punjab with a copy to the Director Information, Punjab, on 3-7-1972 to the effect that in view of their having been released under the order of the President and that Martial Law being no more in force, the Government had by implication lifted the ban on the publication of their Newspaper and it was proposed to go ahead with the publication of the Newspaper, if nothing to the contrary was heard from them, by 7th July, 1972. As no reply was received to the said letter, the publication of the printing and publishing of the weekly "Punjab Punch" was resumed and it is stated that between 10th and 29th July, 1972, four issues of the weekly were published.
9. However, on 25th July, 1972, the Director Public Relations, Government of the Punjab Press Branch, addressed a memorandum to Mr. Hussain Naqi, the Publisher of the "Punjab Punch", similar to the one addressed by him to the weekly "Zindagi" and monthly "Urdu Digest" drawing attention to the fact that after the issue of the "Punjab Punch" dated April 2, 1972, the next issue that was published was for the period from July 9, 1972 and, thus, no issue of the weekly was published between April 3 to July 8, 1972. He pointed out that as there was default of publication for more than two weeks during this span of three calendar months by virtue of subsection (3) of section 9 of the Ordinance, the declaration of the weekly had already become null and void. A reply was submitted to the said letter wherein it was pointed out that failure to publish weekly was for reasons beyond the control of Printer and Publisher and that this fact was already in the knowledge of the District Magistrate and, therefore, the declaration of the Newspaper could not be held to have lapsed.
Nothwithstanding this reply, the police raided the Press of Mr. Muzaffar Qadir on 29-9-1972 and collected all copies printed and semi-printed of the "Punjab Punch", purporting to act in exercise of the powers under section 37 of the Ordinance. Mr. Hussain Naqi, Publisher and Editor and Mr. Muzaffar Qadir claiming to be the Printer, questioned this action by a writ petition in this Court bearing Writ Petition No, 1048/72 asserting that the seizure and confiscation of the "Punjab Punch" was bad in law and the impugned action taken by the respondents was liable to be declared as illegal. It was further prayed that it may be declared that the declaration of the "Punjab Punch" was valid and that the respondents had no right to interfere with the printing and publishing of the said weekly.
10. Section 37 of the Ordinance under which the impugned action was taken is, to the extent relevant as follows : "37.-(1) Any Police Officer, or any other person empowered in this behalf by the Government, may seize any unauthorised news-sheet or unauthorized newspaper, wherever found.
(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 unauthorized news-sheets or unauthorized 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 unauthorized news-sheets or unauthorized newspapers.
' The definition of an "unauthorised newspaper" is contained in Cl. (p) of section 2 and it provides, to the extent relevant, as follows : "unauthorised newspaper" means-
(i) 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 ;"
' Reference in the above definition is to section 7 of the Ordinance, which is to the following effect "The printer and the publisher of every newspaper shall appear in person or by agent authorised in this behalf in accordance with the rules, 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 or in such other form as may be prescribed."
' In the memorandum issued by the Director Public Relations Punjab, reference was made to subsections (3) and (5) of section 9. These provisions, so far as relevant, provide as follows
(3) Where a newspaper having been published is not published-
(i) in the case of a weekly newspaper, for two weeks in a calendar month.
(ii) in the case of a monthly newspaper, for two months.
(iii) the declaration made in respect of that newspaper shall become null and void, and the printer and the publisher shall make and subscribe a fresh declaration under section 7 before further printing or publishing the newspaper, and to every such fresh declaration the provisions of the two foregoing subsections shall without prejudice to the provisions of this subsection apply.
(5) Nothing in subsection (1) or subsection (3) shall apply in the case of a printer and publisher who within the period stated in those subsections and applicable to the particular case, shows to the satisfaction of the District Magistrate that the newspaper has not been or cannot be published for reasons which are beyond their control."
' In the Ordinance, the word "newspaper" means "any periodical work containing public news or comments on public news, and includes such other class of periodical works as the Government may, by notification in the official Gazette, declare to be newspaper". (See section 2(g) of the Ordinance).
11. All the above writ petitions were heard together by a learned. Single Judge of this Court. After examining the matter at full length, his Lordship reached the conclusion that under the provisions of the Ordinance, no order was to be passed by any authority to the effect that the declarations of a Newspaper had become null and void. This result was achieved automatically by operation of law. This conclusion appears from the following observations appearing in the judgment of the learned Single Judge : "It is admitted that the petitioners did not publish the Weekly Papers, namely, "Punjab Punch", "Zindagi" for two weeks in the calendar month of April and similarly failed to publish the same for two calendar weeks each in the months of May, June and July 1972 and that the monthly "Urdu Digest" was also not published for the months of May and June 1972. It is conceded that the petitioners as printers and publishers did not apply within the period stated, i,e,, in the month of April in case of the two Weekly Papers and in the months of May and June in case of the monthly "Urdu Digest", to the District Magistrate to show to his satisfaction that the newspapers could not be published for reasons which were beyond their control. On the plain reading of the statutory provision it is clear that if a newspaper is not published for the period stated in subsection (3) of section 9, its declaration becomes null and void. No order is needed in such a case. The provisions of this subsection operate automatically. If one wishes to save himself from the operation of the said provision, the only course open to him is to apply under subsection (5) of section 9 to the District Magistrate. He may, if satisfied on such application or representation, hold that the declaration under subsection (3) has not been rendered null and void."
12. As for the contention that the writ petitioners could not satisfy the District Magistrate that the publication of their newspaper was beyond their control, as they were, during the relevant period locked up in jail, the learned Single Judge observed : "The only point, therefore, which needs examination is whether it was beyond the petitioners' control, while in the jail, to have communicated with the District Magistrate to explain their inability to publish their newspaper. Under rule 548 of Ch. XXIII of the Punjab Jail Manual, a prisoner can address communications to "Government" "or any other Government Officer in their official capacity with a view to the redress of a grievance". Vide rule 555 of Ch. XXIII ibid, the jail authorities are under a statutory obligation to supply writing materials, including service post-cards to any prisoner who is permitted to write a letter. It is thus abundantly clear that if a prisoner intends to address a letter to any Government functionary in his official capacity there is no restriction on him to do so. In the instant case, it is not the case of the petitioners that they had, in fact, addressed any communication to the District Magistrate informing him that since they were "Aged in jail it was not within their control to publish their respective newspapers."
13. An argument was raised in one of the writ petitions that the provisions of subsection (3) of section 9 are directory and not mandatory. This was also negatived and it was held that the words that the declaration shall become "null and void" used in subsection (3) of section 9 left no room for doubt as to the scope of this provision, and that on the failure to publish the newspaper within the period stated, the declarations become null and void. Therefore, there was no question of a direction or mandate in this behalf. The provision operated automatically.
14. In conclusion, it was observed that subsection (3) of section 9 of the Ordinance did not operate permanently so as to debar a Printer and Publisher from subscribing and making a fresh declaration and they were not left without remedy inasmuch as under subsection (3) of section 9 itself, they could still "make and subscribe afresh declaration". It was further observed that their case was not prejudiced in any way in view of the said provisions of subsection (3) on account of the fact that their declaration stood annulled by operation of law. On this view of the matter all the writ petitions were found to be without merit and by the order dated 23-8-1972 were dismissed.
These four appeals are directed against the said order and judgment. L. P. A. No, 148/72 is against the order passed in respect of W. P. No, 1085/72 whereby the writ petition of the weekly "Zindagi" was dismissed ; L. P. A. No, 149/72 is against the order passed in W. P. No, 1064/72 whereby the writ petition of the monthly "Urdu Digest" was dismissed ; L. P. A. No, 150/72 is against the order passed in W. P. No, 1136/72 by the Keeper of the "Urdu Digest" Printers to prevent the authorities from carrying out repeated searches of "Urdu Digest" Printers ; while L. P. A. No, 159/72 is against the order passed in respect of W. P. No, 1048/72 whereby the writ petition of the weekly "Punjab Punch" was dismissed.
15. Mr. A. K. Brohi has appeared in support of L. P. As. Nos. 148, 149 and 150 of 1972, while Dr. Khalid Ranjha, Advocate, has appeared on behalf of the appellants in L. P. A. No, 159/72.
16. Mr. A. K. Brohi has contended that the learned Single Judge has erred in not reading subsections
(3) and (5) of section 9 integrally. According to him, it is the combined operation of the said two subsections, which defines the extent of the power and the circumstances in which it will operate.
Mr. Brohi argued that the provisions of subsection (5) of section 9 laid down the conditions to be satisfied before the provisions relating to the automatic lapsing of the newspapers' declaration contained in subsection (3) of section 9 could come into effect. He submitted that it was true, as held by the learned Single Judge, that the law did not require that any order was to be passed by any authority pronouncing that the declaration of a newspaper had lapsed but submitted that this question would arise when action was commenced under section 37 on the ground that the printer was publishing an "unauthorised newspaper", namely, a newspaper in respect of which for the time being there is no valid declaration under section 7. Thus, when the District Magistrate initiates action under section 37 and authorises a Police Officer to search and seize copies of an "unauthorised newspaper", it pre-supposes that he has reached the conclusion that no valid declaration is subsisting in favour of the said newspaper. While doing so, he will have to consider all the provisions contained in section 9. Thus, he cannot merely rely upon the provisions of subsection
(3) of section 9 and confine himself merely to seeing if the newspaper has not been published for the periods contemplated in subsection (3) of section 9. He must also see whether during the aforesaid periods, the said newspaper has not shown to his satisfaction that it was not published for reasons which were beyond its control. The provisions of subsection (3), it is submitted are in fact controlled by the provisions of subsection (5). As the said provision is designed to afford an opportunity to the Printer and Publisher to be able to demonstrate before the District Magistrate that the failure to publish the newspaper was for reasons beyond their control so as to prevent the automatic lapsing of the declaration. The provisions of subsection (3) cannot come into effect unless the contingency visualised in subsection (5) of section 9 has not been satisfied. It is pointed out that subsection (5) of section 9 is a non obstante clause and its provisions are of an overriding character. Taking into consideration all these factors it was suggested that the true import of section 9 would appear if it was to be read as follows : "Section 9.-(1)
(2) Where a newspaper having been published is not published-
(i) in the case of a weekly newspaper, for two weeks in a calendar month.
(ii) in the case of a monthly newspaper for two months.
' The declaration made in respect of that newspaper shall become null and void. Subject to the Printer and Publisher showing to the satisfaction of the District Magistrate that the non-publication of the newspaper was for reasons which were beyond their control."
' Learned counsel states that the provisions of subsections (3) and (5) of section 9 would become meaningful only if they are to be read in the above manner.
17. Explaining his point further, learned counsel submitted that the law does not contemplate the performance of impossibilities (lex non cogit ad impossibilia). Thus, if it becomes impossible for the Printer and Publisher to exercise the privilege allowed by law under subsection (5) its result will be that the penal provisions contained in earlier subsection (3) will also not apply because the two provisions are to go together. Accordingly, the provisions of subsection (3) cannot be said to provide for automatic lapsing of a newspapers' declaration but provide only for its contingent lapsing. The contingency being the existence of the possibility for the printer and publisher to satisfy the District Magistrate that the printing and publishing of the newspaper for the periods contemplated under subsection (3) was beyond their control. Accordingly, if the said contingency becomes impossible to avail of, or is reduced to a vanishing point by, for example, depriving the Printer and Publisher of their liberty, the question of lapsing of the declaration would not arise because the condition precedent for the application of the provisions relevant to lapsing has not been satisfied.
18. In support of L. P. A. No, 159/72, Dr. Khalid Ranjha, Advocate, submitted, inter alia, (a) that section 9 of the Ordinance was not at all attracted to the present case ; (b) that even if section 9 was attracted, the declaration of the appellants was saved by the provisions of subsection (5) of section 9 ; (c) that the expression "null and void" in subsection (3) was to be read as voidable ; and
(d) that the provisions of the Jail Manual did not provide adequate opportunity of satisfying the statutory authority, within the contemplation of subsection (5) of section 9. Learned counsel also submitted that the action taken against the appellants was on account of mala fides.
19. In support of his arguments that the provisions of section 9 were not applicable, be referred to the provisions of Martial Law Order 250, promulgated on 6-4-1972 and drew attention to the provisions of section 3 of the Order, which provides that it will "take effect notwithstanding anything to the contrary contained in any other law for the time being in force". "Any other law", according to learned counsel, includes the West Pakistan Press and Publications Ordinance, 1963, and overrode the provisions that were contrary to the provisions of the said Martial Law Order. He then drew attention to the provisions of section 7 of the Order, whereby the Publisher and Printer of the periodicals mentioned in it were forbidden to publish or print their newspapers. He submitted that the newspaper could not be published in view of the terms of this overriding law as a result of the said provisions the condition contained in section 9(3) of West Pakistan Press and Publications Ordinance requiring the Printer and Publisher to publish the newspaper with regularity become impossible of compliance. In fact, the provisions of subsection (3) were rendered nugatory by it and consequently the provisions of subsection (5) also became irrelevant.
20. Counsel further argued that, according to subsection (3) of section 9, the declaration of a newspaper could become null and void by not publishing the newspapers for the periods contemplated in the following situations : (a)voluntary failure of the newspaper ; (b)physical impossibility, like breakdown in the electric power house, etc. ;
(c) failure to comply with certain stipulations contained in the statute ; and (d)legal prohibition.
' Its was submitted that the provisions of subsection (5) of section 9 could be taken advantage of in the first three situations, viz. Voluntary failure, physical impossibility and failure to comply with the stipulations of the Statute on account of certain conditions but where the failure to publish the newspaper was on account of a legal prohibition, such as, the promulgation of a superior law, prohibiting the publication of the newspaper, compliance with the provisions of the Ordinance, such as, subsection (3) of section 9 would become impossible and the provisions of subsection (5) would also not be attracted.
21. In support of the argument that the expression "null and void" in subsection (3) of section 9 was to be read as voidable, reliance was placed on Jardine v. Attorney-General for New Found land (1).
22. Counsel also pointed out that after the release of Printer and Publisher, they had written to the Governor informing him of their intention to resume publication and also pointing out that, in case, no reply was received to their letter, they would consider that the Government had no objection to this course. As no reply was received, publication was resumed and three issues were published thereafter without any objection and the fourth issue was under print when the impugned action was taken. In this background, it was submitted that the authorities must be deemed to have accepted the position that the declaration was intact. It is further submitted that a declaration granting permission in publication of a newspaper was something in the nature of a licence. As the Ordinance was an enactment of a regulatory character and not an enactment of prohibitory nature, the Government had the option to waive any default which had taken place and the situation showed that they had waived it.
23. In support of his last argument, counsel submitted that the provisions of the Jail Manual did not confer an untramelled right to the prisoner to communicate with outside authorities because it was necessary to obtain permission from the Jail Authorities before an outside authority could be addressed. Hence, it was not correct to say that the appellants had the opportunity to satisfy the District Magistrate that the newspaper was not published for reasons beyond their control.
(1) 1932 A C 275
24. Mr. Saeed-ur-Rehman, the learned counsel appearing on behalf of the respondents, did not seriously contest the contention raised by Mr. A. K. Brohi that unless an opportunity is available to the Printer and Publisher of a newspaper to satisfy the District Magistrate that it was beyond their control to publish the newspaper, as provided for in subsection (5), the provisions of subsection (3) would not be attracted. According to him, the provisions of subsection (5) of section 9 were in the nature of an option clause, in the sense that once the newspaper suspended publication either voluntarily or on account of compulsion, it was for it to make up its mind whether it would like to resume publication after the said interruption in its publication. If it was so minded, it could approach the District Magistrate for condoning the default that has occurred in failing to publish and print the newspaper. The District Magistrate was not expected to know if a publisher or printer was desirous of availing the concession provided in subsection (5) of section 9 of the Ordinance or if it was so minded, before resuming publication, to make and subscribe a fresh declaration under section 7 and its convenience without bothering to show cause why he was unable to print and publish the newspaper. Hence, it was for the printer and publisher to take the initiative, within the prescribed period, to show to the satisfaction of the District Magistrate that their newspaper had suspended publication due to circumstances beyond their control implying thereby that they would resume publication as soon as those circumstances were overcome. The District Magistrate could not proceed suo mote to condone the default even if he was aware of the reasons for the suspension of publication in the case of a certain newspaper, without some indication from the printer and publisher of the newspaper that they desired to continue the printing and publishing of their newspaper. In such an event, advantage could not be taken of the provisions of subsection (5).
25. On the point of availability of opportunity to satisfy the District Magistrate, the counsel submitted that the Editors, Printers and Publishers of the periodicals/journals could contact a legal adviser and could also inform the District Magistrate about the discontinuation of the publication of their newspapers through their relatives and friends who came to visit them. Attention was drawn to paras. 548 and 555 of the Jail Manual which lay down: "548. Prisoners may be permitted to address communications to Government, the Inspector- General or any other Government Officer in their official capacity with a view to the redress, of a grievance. Such communications should be to the point and not contain any offensive or irrelevant matter. Communications from one prisoner on behalf of another or joint memorials or petitions are not permitted."
"555. Writing materials, including service post-cards shall be supplied to any prisoner permitted to write a letter and all letters shall be written at such time and place as the Superintendent may appoint. One day in the week, preferably Sunday, shall be set apart for letter writing. Service postage stamps at Government expense shall be provided for prisoners' letters."
' Counsel pointed out that none of the appellants had ever complained that they had not been provided with the facility to communicate with the District Magistrate. In these circumstances, he submitted that it could not be said that it was impossible for them to avail of the provisions of subsection (5) of section 9.
26. After giving our anxious consideration to the submissions of learned counsel for the parties, we have reached the conclusion that these appeals must succeed. According to section 5, no newspaper shall be printed or published, except in conformity with the provisions of Part III of the Ordinance and unless there subsists an authenticated declaration in respect thereof. The procedure for obtaining authentication of declaration is laid down in sections 7 and 12 of the Ordinance. Section 7 provides that the printer and publisher of the newspaper shall appear in person or by an agent authorised in this behalf 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 and section 12 is to the effect that where the printer and publisher satisfies the conditions laid down in the provisions of subsections (2) and (3) of section 12, the District Magistrate shall authenticate the declaration made before him.
27. Section 9, as its marginal note shows, deals with the effect of non-publication of a newspaper.
According to clause (1) thereof, the declaration shall become null and void if the newspaper is not published within three months of the date on which the declaration is authenticated. Clause (3) thereof provides for similar effect that if the newspaper having started publication fails to publish it for the periods specified in its various sub-clauses. However, clause (5) thereof is of an overriding nature and declares that the provisions of clauses (I) and (3) of section 9 will not come into effect if the printer and publisher is able to show, within the periods stated in the said clauses, to the satisfaction of the District Magistrate, that the newspaper has not been or cannot be published for reasons which are beyond their control." It appears, therefore, that the provisions of automatic laps provided in clauses (1) and (3) of section 9 presuppose that the printer and publisher will be present before the District Magistrate in order to satisfy him that newspaper has been or cannot be published for reasons which are beyond their control. In other words, reading of the provisions of clauses (1), (3) and (5) of section 9 together would yield the result that the provisions o clauses (I) and (3) thereof shall take effect subject to the condition that the printer and publisher are enabled to show that the non-publication was beyond their control.
28. This conclusion becomes irresistible if the purpose intended to be served by the various provisions contained in section 9 is kept in view. The purpose of these provisions manifestly is to ensure that only such newspapers, as will take their obligation of printing and publishing the newspaper seriously are to be allowed to continue to publish and print their newspapers. The provisions of section 9, in fact, constitute a complete code and its various provisions are organically inter-related. Thus, a newspaper, whose declaration has been authenticated, must start publishing it within three months of the date of such authentication (vide clause (1) of section 9); otherwise the declaration shall become null and void. Again the declarations made in respect of those newspapers which have started publication but do not publish it regularly shall become null and void if they interrupt the publication for periods longer than is permissible (vide clause (3) of section 9). However, in case, the printer and publisher can show to the satisfaction of the District Magistrate that the newspaper has not been or cannot be published for reasons beyond their control within the periods specified in clause (1) and clause (3) the normal penalty which follows for non-publication of the newspapers will be obviated (vide clause (5) of section 9). The Scheme of the section is, therefore, quite clear. It casts certain obligations on printers and publishers, who have obtained authenticated declarations, to publish their newspapers with regularity and that if they fail to do so, it provides that their declarations shall become null and void. However, the law is conscious of the fact that there may be reasons which render it impossible for the publisher to print the newspaper and in such an eventuality the effects of non-publication stipulated under clauses (1) and (3) are not to apply. A closer examination reveals that the provisions of clauses (I) and (3) of section 9 are not to be read in isolation, but together with the provisions of clause (5) thereof. The two constitute inter-dependent parts of one integrated Scheme. Thus in a case where it is not possible to give the printer and publisher the opportunity contemplated in one part of the provisions of section 9, namely, that contemplated by the provisions of clause (5) it will also not be possible to apply the provisions of the other part, viz., the provisions of clauses (1) and (3) thereof.
29. The above thinking can be illustrated by an example. Suppose major civil commotions and disturbances break out in a district which result in the imposition of curfews for the better part of each day and this situation continues for weeks. The normal civic life of the city is suspended and the District Magistrate of the City is so greatly pre-occupied with his duties relating to the maintenance of law and order that it is impossible for him to attend to his normal office work or to allow anyone to see him except those concerned with the maintenance of law and order. In this crisis it is neither possible for the printer and publisher to print and publish the newspaper nor is it possible for them to communicate with the District Magistrate. If the view that the declaration of a newspaper automatically becomes null and void, irrespective of the circumstances, by operation of law, is correct, then a daily newspaper which may have been publishing its paper with complete regularity for decades must lose its declaration because under section 9(3)(ii) it is laid down that the declaration of a daily newspaper which is not published for sixteen days in a calendar month, shall become null and void. It is difficult to impute the Law Maker with such an unjust intention. Not only would it work serious injustice to persons who have no control over the circumstances, but will also not promote the objects underlying the said provisions, namely, that no newspaper should interrupt its publication for longer than the prescribed periods unless this can be demonstrated to be for reasons beyond their control. In a somewhat different context, it was held in Mayre v. Harding
(1) that where the condition for the exercise of jurisdiction cannot be complied with for reasons beyond the control of a party, the said condition can be waived. In that case section 2 of the Summary Jurisdiction Act, 1857, (c. 43) made the transmission by the appellant of a case stated by justices to the superior Courts within three days from receiving it a condition precedent to the hearing of the appeal. As the Court was closed during the three days and compliance with the condition was impossible the condition was held dispensed with. In the case before us, the appellants were confined in prison. Hence it was impossible for them to print and publish their newspapers. It was also not possible for them to appear before the District Magistrate so as to satisfy him why they could not do so. In these circumstances, the condition about printing and publishing the newspapers contained in subsection (3) of section 9 for this period on the same analogy must be held to be dispensed with.
30. It was argued that the appellants could have addressed a communication to the District Magistrate apprising him of the reasons why they were (1) 1867 LR2QB 410 not in a position to print and publish their newspapers, and in this connection the provisions of the Jail Manual were relied upon. Apart from the fact that so far as the appellants in two appeals are concerned, namely in the cases of the weekly "Zindagi" and the monthly "Urdu Digest", such letters could not possibly reach the District Magistrate within the stipulated period in so far as they were in the custody of the Military authorities from 5th April to 13th April and were sent, after their conviction by the Summary Military Court on 13-4-1972, to jail and, therefore, even if they had written letters to the District Magistrate on the Sunday falling after the 13th April and giving allowance for the time to be taken by the Jail Authorities to scrutinise the letters for seeing that they did not contain any offensive or irrelevant matter, before forwarding them to the Government Officer concerned, the two weeks' default in the case of the said two weeklies would have already occurred ; the more fundamental question is whether mere addressing a letter to the District Magistrate amounts in law to availing of the opportunity to satisfy the District Magistrate with regard to the default, which is allowed by the provisions of such subsection (5) of section 9.
31. Under the provisions of subsection (5) of section 9 the Printer and Publisher can show to the "satisfaction" of the District Magistrate that the newspaper has not been or cannot be published for reasons which are beyond their control. The word "satisfaction", when used for the purpose of judicial determination necessarily implies a mental state of relief and contentment on the part of the Presiding Officer resulting on the clarification of a doubt or uncertainty. When it is said that a person has been satisfied, it implies that he has been convinced and has become contented. In this background, it is to be seen if the facility provided to address a communication to the District Magistrate can be considered as sufficient compliance of the privilege allowed by subsection (5) to show to the satisfaction of the District Magistrate their inability to print and publish the newspaper. We do not think so. A communication will merely contain the version of the addressor.
Not being aware of the thinking of the authority who has to decide the matter, no reference may be made in it to the matters which may be creating the doubt or uncertainty in his mind. It follows, therefore, that the privilege envisaged in subsection (5) of section 9 to show to the satisfaction of the District Magistrate necessarily implies the right of personal appearance, the Printer and Publisher before the District Magistrate, in order to show to his satisfaction why they were unable to publish and print the newspaper during the contemplated periods. In Queen Empress v. Pohpi etc.
(1) Mr. Justice Mahmood has made some observations in connection with the right of an appellant who has preferred an appeal from Jail, while considering the scope of the provisions of sections 420, 421, 422 and 423, Cr. P. C., which are of some relevance in the present context. While construing the language of section 423, Cr. P. C., he opined that the words "if he appears" make it a condition precedent to the disposal of an appeal under the said section that the appellant is heard or at least has the choice of appearing. The actual words used by him while discussing this question are noteworthy. After referring to the provisions of section 427, Cr. P. C. Which prescribe that when an appeal is presented under section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it or any Subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal, he observed that by "dint of this power the High Court may make it impossible for the appellant to avail himself of the notice by taking very good care to imprison the person, far away from (1) 1 L R 13 All. 171 any Court House " And went on to add, "it is no use tying a person by the leg, making it impossible for him to appear, and then saying to him we are to hear you if you appear, when all the while we know that we have made his appearance impossible." He then went on to make the following forceful observation ''. In the first place, by dint of my writ to order a person to be imprisoned and tied by a chain, then in the next place to require the mockery of giving him notice, the mockery of asking him to attend, when I, by dint of the exercise of my own power have made it impossible for him to attend, and then have solemn mockery of having his name called out ; if this is the law of British India, I hope the sooner it is abrogated the better."
' Although in the said judgment his was then a lone voice his opinion later on prevailed and has been cited with approval even by this Court in the recent case of Abdul Majid v. State (1). In fact, our own Supreme Court has now clarified beyond any doubt that the maxim audi alteram partem is applicable to all proceedings that affect the rights of any person and even an administrative authority will not be held to have exercised its jurisdiction lawfully where it acts to the detriment of a party without affording him with the right of personal hearing. Our conclusion, therefore, is that unless al proper opportunity of hearing is afforded to the Printer and Publisher and no impediment exists in their way to appearing before the District Magistrate in person with a view to satisfying him of the grounds for their inability to print and publish their newspaper, the provisions of subsection
(5) of section 9 cannot be held to have been complied with. Merely because the Printer and Publisher could address a letter to the District Magistrate, which might or might not have reached him within the contemplated period and even if it did, may not by itself have been sufficient to clear the uncertainties and doubts that he may be entertaining, cannot be regarded as a sufficient compliance with the nature of the privilege that has been allowed by subsection (5) of section 9.
We cannot agree, therefore, with the view urged before us on behalf of the respondents that as the appellants could have addressed letters from the Jail to the District Magistrate, they were in a position to avail of the provisions of subsection (5) of section 9 of the Ordinance.
32. It was also suggested that the Printers and Publishers would not have suffered any particular harm even if their declaration were held to have become null and void because they can always make and subscribe a fresh declaration under section 7. The matter, however, is not so simple. As has been pointed out by the learned Single Judge himself if a person submits a declaration under section 7, after his previous declaration has become void, it must again be authenticated in terms of section 12, in view of the provisions of section 5 which lays down that "no newspaper shall be printed or published and unless there subsists an authenticated declaration in respect thereof." A reference to section 12 shows that the District Magistrate shall not authenticate the declaration unless he is satisfied inter alia that "the printer or the publisher was not convicted of an offence involving moral turpitude within five years before the date of his making and subscribing a declaration under section 7." The conviction of the appellants under Martial Law Order 259 could possibly be construed as bringing them within the mischief of this clause. Moreover, under the provisions of subsection (3), added to the Ordinance, by the amending Order XXI of 1964, "the District (1) PLD 1973 Lah. 448 Magistrate shall refuse to authenticate the declaration of a printer or publisher about whom the Government is satisfied that he is likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan, or public order, or public safety in the Province . . . . . . ." Thus, if the Government was of the opinion that the declaration should not be authenticated, the District Magistrate would have no option but to refuse to authenticate. Thus, the authentication of the declaration would not be an automatic affair, it may not be granted even though made and subscribed by a newspaper whose declaration, for no fault of its own becomes null and void on the interpretation contended for by the respondents. The view that as a fresh declaration can easily be authenticated and that the interpretation about declarations lapsing automatically does not result in any grave harm to a newspaper, overlooks the above important aspects of the matter.
33. Another grave prejudice which a newspaper would suffer by being required to get a new authenticated declaration is that, he will be treated as a new-comer under the Newsprint Control Ordinance, 1971. Thus, Printer or Publisher of any newspaper, who was already printing or publishing it, before the Ordinance came into force, i,e, on 25th April 1971, will be allowed his quota of newsprint from an approved dealer as there to fore However, the newspaper, which starts publication after the commencement of the Ordinance will get it only with the prior permission in writing of the Central Government. Thus, if the appellants are obliged to get fresh authenticated declarations for their newspapers, they would be treated as newspapers who have started publication after the coming into force of the Newsprint Control Ordinance, which will cause them serious inconvenience and great loss. We consider, therefore, that if no other interpretation on the provisions of section 9, except the one that is being contended for by the respondents can possibly be placed on its provisions it is only that the said interpretation should be accepted. However, as discussed by us at length above, another interpretation on the provisions of section 9, viz. That unless a proper opportunity to satisfy the District Magistrate of their inability to publish and print the newspaper is available the provisions relating to the automatic lapsing of the declaration do not become attracted, is not only possible but, in fact, more in harmony with the purposes and the object of the legislation.
34. We hold, therefore that the provisions of subsection (3) of section 9 of the Ordinance did not come into play during the period when the appellants were deprived of their liberty, i,e, from the 5th April, 1972, to 28th June, 1972. As they published the next issue of their newspaper within the contemplated period-excluding the aforesaid period of their incarceration-the declarations of their newspapers did not become null and void and that the declaration of the weekly "Zindagi" was still intact when it published its issue for the period 17/23rd July, 1972 ; the declaration of the monthly "Urdu Digest" was also intact when it published its issue of July 1972 on 2-7-1972 ; and the declaration of the weekly "Punjab Punch" was also intact when it published its issue of 10th July, 1972. The action taken against the appellants under section 37 of the Ordinance was, therefore, contrary to law and was without lawful authority. The appellants are, therefore, found entitled to the declarations prayed for by them in their writ petitions namely, that the authenticated declarations issued in favour of their newspapers are intact and operative and that the respondents have an authority to stop the printing and publication of the aforementioned newspapers.
35. The result is that these appeals are allowed in the above terms, but in view of the difficult question of law involved, we leave the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.