P L D 1977 LAHORE 852




Frame (1)

Per Aslam Riaz Hussain, C.J.

(a) Constitution of Pakistan (1973) Art. 199 (1)

Words and phrases—Expression “aggrieved person”—To be construed in context and on facts of each case—Petitioner an office bearer and important member of a political party, constituent of a united party consisting of several political parties; such united party seriously involved in election struggle—Petitioner, held, cannot in circumstances, be said to have no direct personal interest in writ petition challenging manner in which respondent-Corporations are projecting election compaign of all contesting parties—Petitioner wishing to see his party or united party to succeed definitely hit if respondent-Corporations project election campaign of united party in partial, one-sided, or unfair manner—mere fact of interests of a large number of other citizens being also hit—No basis for asserting petitioner having no locus standi to file a writ petition—Nor could it be said that only a candidate contesting election could in circumstances pray for a direction in nature of mandamus—Petitioner, in circumstances, held, an aggrieved person and competent to file writ petition.—[Words and phrases—Writ] [pp. 863 865, 866] A, B & c

(b) Constitution of Pakistan (1973) Art. 199 (1)

Writ petition—Competency to file—Petitioner’s party not only a constituent member of united party but also having sent a telegram jointly with Secretary of another party from united party’s office to Chief Executives of respondent-Corporation—Fact indicative of petitioner’s party and united party having common interest in maintenance of balance and impartiality in dissemination of news about its election campaign—United party also not shown to have disowned writ petition filed by petitioner despite having knowledge about it through press—Facts, held, show Writ petition having been filed with consent and concurrence of united party and on its behalf. [p. 866] D

(c) Constitution of Pakistan (1973) Art. 218 (3)

Representation of the People Act (LXXXV of 1976), S. 103 and Chap. IV—Words and phrases—Expression “conduct of elections”—Used in both Art. 218(3) and S. 103 in same and means everything done from stage of issuance of notification about holding of elections to holding of actual pollings and ending with declaration of results as it appears from Chapter IV dealing with subject of “conduct of elections”.—[Words and phrases]. [pp. 867, 868] E & F

(d) Constitution of Pakistan (1973) Art. 191 (1)

Read with Representation of the People Act. (LXXXV of 1976), Chap. IV—Election Commission, jurisdiction of—Adequate alternate remedy—Act LXXXV of 1976—Does not include any provisions relating to carrying out of “election campaign” of various political parties participating in electing nor casts any duty or confer any power on Electing Commission to control same–Giving of directions that equal time in Radio and Television as far as possible be given to activities of two major participants in election and giving of permission to representatives of united party to televise and broadcast manifesto of united party and address nation over such systems whenever representatives of other party are permitted to do so—Held: Not within exclusive jurisdiction of Election Commission—Petitioner held further, had, in circumstances, no adequate alternative remedy and justified in approaching High Court through a petition under Art. [199(1).—[Jurisdiction]. [p. 868] G

(e) Constitution of Pakistan (1973) Art. 199

Writ petition—Mala fides—Petition though containing certain averments savouring of allegations against ruling party but such averments probably mentioned to make out case for grant of relief prayed for—Publication of petition itself no allowed by Court so that it could not be used as a means of propaganda by petitioner’s party through process of Court—Petition, hence, not to be struck down on ground of mala fides.—[Mala fides]. [p. 868] H

(f) Constitution of Pakistan (1973) Art. 199

Writ petition—Delay—Mala fides—Petitioner and his party or united party probably waiting to see if protests made by its leaders in their public speeches would have any effect on Television and Radio authorities—Delay in filing writ petition, in circumstances, held, not necessarily mala fide,—[Mala fides]. [p. 868] I

(g) Constitution of Pakistan (1973) Art 199 (1) (a) (i)

Pakistan Broadcasting Corporation Act (XXXII of 1973), S. 10—Memorandum of Association of Pakistan Television Corporation, Art. III—Wireless Telegraphy Act (XVII of 1933) S.3—Mandamus, writ of—Maintenance of balance and presentation of news during election in accurate and impartial manner by Radio and Television net work—Broadcasting and telecasting—Federal subjects—Pakistan Broadcasting Corporation being fully controlled by Government—A statutory Corporation and ‘public service’—Pakistan Television Cooperation though incorporated as a limited company yet Government having controlling shares in it from its inception and it being fully controlled and run by Government also a public service—Corporations, hence, perform functions in connection with affairs of Federation, a Province, or a Local authority—Functions of both Corporations in nature of duties required to be performed as ‘public services’ functioning under control of Government and not merely powers without any corresponding obligations—Respondent-Corporations having chosen to exercise function of disseminating news about significant activities in country, held, duty bound to maintain, as far as possible a balance and present news with regard to election activities in an accurate and impartial manner—High Court, held further, competent to direct respondents to perform their duties in aforesaid manner under Art. 199 (1) (a) (i).—[Writ].

Pakistan Broadcasting Corporation is clearly a Statutory Corporation, which is fully controlled by the Government. Similarly, although the Pakistan Television Corporation is incorporated as a Limited Company under the Companies act, 1913, yet the Government has the controlling shares in it from its very inception and it is fully controlled and run by it. In support of the fact that the two Corporations are controlled by the Government it may be mentioned that no Radio or T. V. Station can be installed without the prior permission of the Government as required by section 3 of the Wireless Telegraphy Act, 1933, it is the Government which appoints the General Manager or the Managing Director, respectively, of these two Corporations and their salaries are paid from public exchequer. Moreover, the Government levies fees for issuing licences for keeping radio and television sets and also has the power to make rules under section 10 of the above-mentioned Act of 1933. These rules have actually been made. The rules relating to television are known as the Television Receiving Apparatus (Possession and Licensing) Rules, 1970. In these rules the Government has provided for levying of fees for issuance of licences for the possession of television sets on the payment of a specified fee. The contravention of the said provision (rule 3) has been made punishable under rule 15 of these rules.

Moreover in a Government Publication titled “The Budget, 1976-77” it is stated at pp. 194 and 351 respectively, that a demand of Rs. 5,75,00,000 was made and sanctioned in favour of the Pakistan Broadcasting Corporation and a demand of Rs. 63,83,000 was sanctioned for “Investment in Pakistan Television Corporation for repatriation of foreign equity” Although the actual repatriation of the foreign capital has not yet been effected but the intention to do so is quite evident from the provision of the funds for that purpose, in the annual budget. It is also noteworthy that clause (f), section 10 (1) and subsection (2) of Section 10 of the Pakistan Broadcasting Corporations Act (XXXII of 1973), and Article III(3) of the Memorandum of Association of the Pakistan Television Corporation Ltd. read with the Provisions of Wireless Telegraphy Act, 1933, show beyond doubt that both the Corporations are being controlled and run under the directions of the Government. In this connection it is also pertinent to refer to Article 159 of the Constitution. This Article read with items Nos. 7 and 31 of the Federal Legislative List, provides that broadcasting and telecasting are Federal subjects. Article 253(1) of the Constitution provides that the Government can take over and run any, such Corporations. The respondent-Corporations are clearly, “public services” and, as shown above, they are being controlled and administered by the Government. As a result, counsel for respondents was justified in not pressing that the respondent-Corporations are not performing functions in connection with the affairs of the Federation, a Province or local authority.

It is evident that the functions and objects of the two Corporations as mentioned in clause (a) of section 10(1) of the Pakistan Broadcasting Corporations Act, 1973 and Article III(2) of the Memorandum of Association of the Association of Pakistan Television Corporation are, in fact, in the nature of duties, which they are required to perform as “public services” functioning under the control of the Government and are not merely powers without any corresponding obligations. It is now well settled that when the function required to be performed or thing required to be done is for ‘public benefit or ‘advancement of public interest’, the words used in the relevant law, rules or other similar provisions must be construed as having a compulsory force, i.e., as importing a duty as opposed to merely conferring power of an enabling or permissive character. [p. 871] J

Having chosen to exercise the function of disseminating news about significant activity in the country, the respondent-Corporations are duty bound to maintain, as far as possible, a balance and present the news with regard to the aforementioned activity in an accurate and impartial manner and the Court can, therefore, direct them to perform that duty in the said manner through a direction under Article 1999(1)(a)(i) of the Constitution. [p 872] K

Even if it were to be assumed that the Pakistan Television Corporation is a Private Limited Company, there is authority to the effect that where there is a duty requiring a certain act to be performed, a writ or direction in the nature of mandamus can be issued to it. [p. 872] L

Article 159 of the Constitution itself in various respects mentioned therein bestows certain powers on the Federal Government in the matter of broadcasting and telecasting and is in a way an indication of the fact that broadcasting and telecasting is rather under the sole control of that Government. The Pakistan Broadcasting Corporation is a person performing functions in connection with the affairs of the Federation. It is under the sovereign and exclusive power and function of the Federal Government i.e, the State and the Pakistan Television Corporation is only an agent of the itself performing these functions in the form of getting itself incorporated along with other shareholders in the form of a Corporation. In other words, the functions entrusted to or performed by the Pakistan Television Corporation are functions of the State involving exercise of some sovereign and public power. That the Corporation is an agent of the Federal Government is further clear from the Memorandum/Articles of Association of the Corporation itself which undertake the control of the Federal Government and as obligation to follow their instructions. The Television Corporation when if performs the aforesaid function, actually performs them in connection with the affairs of the Federal Government or as its agent, licensee or a delegatee. Looked at from whatever angle, it is manifestly a Public utility Corporation or to be exact a person performing functions in connection with the affairs of the Federation within the meaning of this concept and amenable to writ jurisdiction as contemplated in Article 199 of the Constitution. If, therefore, it is the petitioner’s statutory right to propagate the characteristics of his party or various candidates, correspondingly be can under the Charters of the two Corporations insist on them to obey the said Charters, perform their functions impartially and with balance while broadcasting and telecasting their features, programmes and news etc. about elections especially when, these two Corporations are performing their functions in connection with the affairs of the Federation i.e. the State whose duty, i.e. the State’s duty) it is, enshrined in Article 3 of the Constitution to ensure the elimination of all forms of exploitation ” and if utilisation of broadcast or telecast purports to its exploitation solely in favour of one political party to the total or material exclusion of other parties, the petitioner as an office-bearer of a political party which in its own turn is a collaborator and constituent of a bigger alliance (P. N. A) can competently invoke constitutional jurisdiction of this Article to redress the relevant grievances. This may be read with Article 5(2) of the Constitution which states that “obedience to the Constitution and law is the basic obligation of every citizen wherever he may be and of every other person for the time being within Pakistan”. It is to be noticed that the petitioner by means of this petition is requiring the two Corporations to obey the Constitution and the law as highlighted above. The functions of staging election programmes, election features, and disseminating news in general elections or election matters has been undertaken by the two Corporations of their own and it is not the High Court who have asked them to undertake them. The High Court have simply directed them to perform those functions in accordance with law on the subject pointing out objectionable excesses in their acts of omission and commission in that respect strictly within the scope of Article 199. There is thus no defect in that respect strictly within the scope of Article 199. There is thus no defect in the maintainability of this writ petition. It is a common ground (a) that the respondents are broadcasting and telecasting the live voices and the live pictures of the P.P.P. Chairman and candidates whereas the same is not being done for the P.N.A. Head and candidates and (b) that the respondents are broadcasting and telecasting features and projecting comments and live views of the commentators in favour of the P.P.P. but no such features or comments are being broadcast or telecast from or for persons supporting P.N.A. This is clearly partial and discriminatory public utility service and illegal. [pp. 878, 882, 883, 884, 886, 887] R, S, T, U, V,W]

(h) Constitution of Pakistan (1973) Art. 199(1) (a) (i)

Read with Pakistan Broadcasting Corporation Act (XXXII of 1973), S. 10(1)(e)—Mandamus, writ of—dissemination of news inaccurate, impartial, and balanced manner—Editing of news, responsibility of—Radio and Television Corporation having taken upon themselves to perform functions of disseminating news etc. about most significant activity in country (general elections), obligatory for them to abide by, and conform to, requirements prescribed in cl. (e) of S. 10 of Act XXXII of 1973—Such course not only fair and proper but respondent-Corporations, being ‘public services’ also required by their own character to maintain balance while bringing national activities to public awareness and to present news in relation thereto in an accurate, impartial, and balance manner—Direction of editing news, however, must lie with relevant functionary and no private individual can insist upon editing of news in any particular manner or in accordance with his wishes or dictates,—[Writ] [p. 873] M

(i) Constitution of Pakistan (1973) Art. 199 (1) (a) (i)

Right to establish political parties being conceded, political parties, held, have ancillary and consequential right to reach and address audience through all public means including “electronic campaigning of radio and television—Providing audience through live broadcasts and live telecasts to only one political party—Clearly discriminatory. [pp. 888, 889, 892] X, Y, & Z

(j) Constitution of Pakistan (1973) Art. 199 (1) (a) (i)

Read with Pakistan Broadcasting Corporation Act (XXXII of 1973), S. 10 and Memorandum of Association of Pakistan Television Corporation, Art. III—Dissemination of news during elections—Equality of time to contesting parties—Maintenance of equality in time with exactitude or precision while broadcasting or telecasting news about activities of different political parties—Not always possible—Equality of time allotted to each side being one of most important ingredients of impartiality fairness and balance in connection with dissemination of news about election campaign of equal time only as far as possible to do so [p. 873] N

(k) Constitution of Pakistan (1973) Art. 90

Prime Minister, capacities of—Leader of ruling party though having two capacities, viz., Chairman of ruling party and Prime Minister of country, yet, held be does not act in both such capacities on all occasions—Prime Minister, in such cases acts only as Chairman of his party while addressing public meetings in various cities in connection with election campaign of his party for promoting its cause—A Prime Minister would speak for all people of country and not only for promoting cause of one political party—Prime Minister may however have to address Nation as a whole in his capacity as Prime Minister regarding matters relating to important national issues including conduct of elections. [p. 873] O

(l) Constitution of Pakistan (1973) Art. 199 (1) (a) (i)

Read with Pakistan Broadcasting Corporation Act (XXXII of 1973), S. 10 and Memorandum of Association of Pakistan Television Corporation, Art. III—Mandamus, writ of—General Election hotly contested by two major rival parties—Radio and Television Corporations being bound to maintain balance and present news about election campaign in as factual, accurate, and impartial manner as possible, held (i) equal time as far as possible be given to activities with regard to election campaign to two major participants in election; (ii) representatives of united party be permitted to televise and broadcast Manifesto of their party and address Nation over Radio and Television systems whenever representatives of other party permitted to do so; (iii) either to refrain from expressing any views on election issues through its commentators or to do so with respect to both parties; (iv) while telecasting or broadcasting news about various public meetings held by contesting parties either live voice of an equal number of political leaders of each side addressing public meetings be given or voice of no one from either side be broadcast live unless Prime Minister of Pakistan addresses nation in his capacity as Prime Minister, in contradistinction to his capacity as Chairman of his party, on any important national issue, including conduct of forthcoming elections or any other important matter concerning country or nation at large.—[Writ]. [p. 874] P & Q

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: