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PLD 2017 Sindh 1
Before Sajjad Ali Shah, CJ and Mahmood Ahmed Khan, J
ASHIR AZEEM—Petitioner
versus
FEDERATION OF PAKISTAN through Federal Secretary, InfÓrm;ation, Broadcasting and National Heritage and 8 others—Respondents
Constitutional Petition No.D-2449 of 2016, decided on 6th September, 2016.
(a) Motion Pictures Ordinance
——S. 9(2)(a)— Sindh Motion Pictures Act (IV of S. 21(1)— Punjab Motion Pictures (Amendment) Act, 2012 (X of 2013) S.3— Constitution (Eighteenth Amendment) Act (X of 2010), Preamble & Ss.96,101(3) & 75—Constitution of Pakistan, Arts 270AA(6), 142 & Fourth Sched. Concurrent List [since omitted]—Scope, nature and effect of Art.270AA(6) of the Constitution on Federal Laws with respect to any of the matters enumerated in the Concurrent Legislative List, after omission of the said list by the Constitution (Eighteenth' Amendment) Act, 2010 and subsequent legislation on the subject-matter by the Provincial Legislatures being the authority” under Art. 142 of the Constitution—Production, censorship and exhibition of cinematograph films—Scope and application of the Motion Pictures Ordinance, 1979 in the Provinces after the omission of the Concurrent List—Petitioner had impugned the notification issued by Federal Government in exercise of powers under S. 9(2)(a) of the Motion Pictures Ordinance, 1979 whereby a film was declared uncertified in the whole of Pakistan and its exhibition was banned— Contention of petitioner, inter alia, was that after the promulgation of Constitution (Eighteenth Amendment) Act, 2010 legislative competence in respect of “production, censorship and exhibition of cinematograph films ” came within the sole domain of the Provinces—Validity—Motion Pictures Ordinance, 1979 was a federal statute and was legislated consequent to the Constitutional mandate that was available vide Entry No. 41 of the Concurrent List provided in the Fourth Schedule of the Constitution, empowering the Federal Legislature to legislate law in respect of “production, censorship and exhibition of cinematograph film” and vide the Constitution (Eighteenth Amendment) Act, 2010 all such entries from the Concurrent Legislative List were omitted and effect of such omission was taken care of by Art.270AA of the Constitution—Sustainability of laws made by the Federal Legislature on the strength *of the now-omitted Concurrent Legislative List, depended on the “competent authority” and were to remain in force until such “competent authority” altered, repealed or amended such law—Article 142 of the Constitution, after Eighteenth Constitutional Amendment, restricted the power of the Parliament to make any laws with respect to any matter not enumerated in Federal Legislative List and subject of “production, censorship and exhibition of cinematograph films” was not available in the Federal Legislative List, therefore the “competent authority ” to legislate, referred to in Art.270AA of the Constitution, in the matters of “production, censorship and exhibition of cinematograph films ” were the Provincial Legislatures—After legislation on the subject of “production, censorship and exhibition of cinematograph films” by the Provinces, namely Sindh and Punjab, argument that notwithstanding the repeal of the Concurrent Legislative List and the subsequent legislation by the Provinces, the Federal Motion Pictures Ordinance, 1979 would still apply or extend to the Provinces went against the concept, object and purpose of the Eighteenth Constitutional (Amendment) and was contrary to Art.270AA(6), read with Art. 142 of the Constitution— . Provinces had also retained powers in their own respective legislations, similar to those available under proviso to S.9(2)(a) of the Motion Pictures Ordinance, 1979 therefore contention that notwithstanding the omission of the Concurrent List, Entry No. 58 of the Federal Legislative List would sustain application of the proviso to S.9(2)(a) of Federal Motion Pictures Ordinance, 1979 was also not valid and the matter of “production, censorship and exhibition of cinematograph films” was not a matter that “related to the Federation”—High Court held that since the Provinces of Punjab and Sindh had legislated on a subject not available in the Federal Legislative List therefore, the Federal Motion Pictures Ordinance, 1979 stood repealed in its application to the extent of the Provinces, and had to be read down accordingly—Impugned notification was quashed, and constitutional petition was allowed, in circumstances. [pp. 7, 8, 10, 11, 13] A, B, C, D, E & F
KESC v. NIRC PLD 2014 Sindh 553 distinguished.
M/s. Baho Film Corporation v. Islamic Republic of Pakistan PLD 1981 Lah. 295; M/s. Everday Pictures Ltd. v. Government of Pakistan PLD 1979 Kar. 155 and Shahid Afzal v. Government of Pakistan PLD 1977 Lah. 117 rel.
Air League of PIAC Emplyees v. Federation of Pakistan 2011 SCMR 1254; Pakistan Tabacoo Co. Ltd. v. Karachi Municipal Corporation PLD 1967 SC 241; Union of India v. K.M. Shankarappa AIR 2000 SC 3678; The Central Board of Film Certification v. Yadavalaya Films 2007 (1) CTC 1; Parkash Jha Productions v. Union of India 2012 (3) UIC 2029 and Lakshmi Ganesh Films v. Government of A.P. and others 2006 (4) ALD 374 ref.
(b) Motion Pictures Ordinance (XLHI of 1979)—
—S. 9(2)(a) & proviso—Revisional powers of the Federal Government—Power to uncertify a film and ban the same from exhibition—Exercise of power under S.9(2)(a) & proviso of the Motion Pictures Ordinance, 1979—Providing an opportunity of hearing/issuing of a show-cause notice before uncertification and banning of a film from exhibition—Scope—Where an action was envisaged under S.9(2)(a) of the Motion Pictures Ordinance, 1979, besides the usatisfaction ” of the Federal Government that such action was necessary to take in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or to prevent the commission of, or incitement to an offence; an opportunity of hearing had to be provided after supplying all such material on basis whereof an action was proposed for the reason that under S.9(2)(a) of the Motion Pictures Ordinance, 1979, issuance of show-cause notice or provision for providing of hearing had not been expressly excluded— Where a statute did not expressly exclude the provision for providing of an opportunity of hearing before a proposed action, then such right of hearing had to be read into such a statute and an action taken in violation of such right (against the principle of audi alteram partem); was liable to be declared as taken without lawful authority. [p, 20] G
(c) Interpretation of statutes—
—Natural justice—“Audi alteram partem”, principle of—Where a statute did not expressly exclude the provision for providing of an opportunity of hearing before taking of a proposed action, then such right of hearing had to be read into such a statute and an action taken in violation of such right (against the principle of audi alteram partem); was liable to be declared as taken without lawful authority. [p. 20] G
Dr. Muhammad Farogh Naseem for Petitioner.
Salman Talibuddin, Addl. Attorney General for Respondents.
Dates of hearing: 9th and 10th June, 2016.
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