Text of Jang Group's petition filed in Supreme Court
IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
1. Mir Shakil-ur-Rahman, s/o Late Mir Khalil-ur-Rahman, Printing House, Muhammad Bin Qasim Road, Off I.I. Chundrigar Road, Karachi.
2. Independent Newspapers Corporation Private Limited, Printing House, Muhammad Bin Qasim Road, Off I.I. Chundrigar Road, Karachi.
3. The News Publications (Pvt.) Ltd. Al-Rahman Building, I.I.Chundrigar Road, Karachi.
4. Jang Publications (Pvt) Ltd., Printing House, Muhammad Bin Qasim Road, Off I.I. Chundrigar Road, Karachi.
5. Jang Limited, Printing House, Muhammad Bin Qasim Road, Off I.I. Chundrigar Road, Karachi.
6. J&S Enterprises (Pvt.) Ltd., Printing House, Muhammad Bin Qasim Road, Off I.I. Chundrigar Road, Karachi.
7. Combined Investment (Pvt) Ltd., Printing House, Muhammad Bin Qasim Road, Off I.I. Chundrigar Road, Karachi.
8. Jang Enterprises Limited, Printing House, Muhammad Bin Qasim Road, Off I.I. Chundrigar Road, Karachi.
.... PETITIONERS
VERSUS
1. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad.
2. The Secretary, Ministry of Information & Broadcasting, Government of Pakistan, Islamabad.
3. Senator Saif-ur-Rehman, Chairman, Ehtesab Bureau, Prime Minister's Secretariat, Islamabad.
4. The Director General, Federal Investigation Agency (FIA), Islamabad.
5. The Central Board of Revenue (CBR) through its Chairman, CBR House, Islamabad.
...... RESPONDENTS
PETITION UNDER ARTICLE 184(3) OF THE CONSTITUTION OF PAKISTAN 1973.
Respectfully Sheweth:
Introductory Statement:
1. That the Petitioners Nos. 2 to 8 are companies incorporated under the Companies Ordinance 1984 having their registered office at the places indicated in the title of the petition. The Petitioner No. 1 (Mir Shakil-ur-Rahman) is the Chief Executive of the Companies cited as Petitioners No. 2 to 8 (which are collectively & commonly known as the Jang Group of Companies) and has been duly authorised by the respective resolutions thereof to file, institute and pursue the present petition in this Honourable court and to do all that may be necessary in this regard: The Petitioner No. 2 (Independent Newspapers Corporation (Pvt.) Ltd.) publishes daily "Jang" from Karachi, Lahore, Rawalpindi and Quetta simultaneously. It also publishes weekly "Mag", "Akhbar-e-Jahan", "Daily News", Karachi and "Daily Awaz", Lahore. The Petitioner No. 3 (The News Publications (Pvt.), Ltd.,) publishes daily 'The News' from Karachi, Lahore and Rawalpindi and daily 'Awam', Karachi. The Petitioner No. 4 (Jang Publications Ltd.) publishes the daily "Jang" and "The News" from London. All above stated publications and periodicals are collectively known as the "Newspapers Of the Jang Group". The Petitioner No. 5 (Jang Limited) has the proprietary/ownership rights of daily The Jang. These newspapers/magazines being published by the Petitioner No. 2 & 8 are printed by the Petitioner No. 6 (J&S Enterprises (Pvt.) Ltd.) which has its presses at Karachi, Lahore, Rawalpindi and Quetta. The Petitioner No. 7 (Combined Investment (Pvt.) Ltd.) is the owner/landlord of all buildings and press premises where the offices or presses of the publications of the Jang Group of newspapers and the office of Jang Group of Companies, are situated. The petitioner No. 8 (Jang Enterprises (Pvt.) Ltd.) is the publisher of different books published by the Jang Group. Besides holding the offices of Chief Executive Officer of the Jang Group of Companies the Petitioner No. 1 (Mir Shakil-ur-Rahman) is also the Editor-in-Chief and Printer and Publisher of the newspapers of Jang Group with the exception of the weekly, Akhbar-e-Jahan, and a share-holder in the Jang Group of Companies.
2. That the Petitioners Nos. 2 to 8 have always been objective in the evaluation of the performance of any government. The said Petitioners have sought to pursue the same consistent policy of objectivity with regard to the activities of the present government. The prime and paramount consideration of the Jang Group has always been the dissemination of objective information in the larger public and national interest, This is so irrespective of the fact that the news may displease the government, such as news regarding the bad law and order situation, and terrorism etc. However, despite its best efforts to ensure a smooth relationship with the present government without compromising on its principles, during the last several months, the Respondents have launched a campaign of vilification, intimidation and harassment against the Jang Group. This campaign is motivated by the fact that the Petitioners have refused to accept the Respondents' unjustified demands to tailor their news, views and editorial policy as well as the coverage and display of news and information to suit the desires and wishes of the Respondents. The Respondents have also demanded from the Petitioners, the dismissal of senior and renowned journalists including Mr. Irshad Ahmad Haqqani, Ms. Maleeha Lodhi and Mr. Kamran Khan. The Petitioners have been clearly informed that this malicious campaign will be relentlessly pursued unless all the journalists on the hit list of the Respondents are fired and the Petitioners cover events, and comment upon, issues according to the dictates and desires of the Respondents. The Respondents have clearly stated that even if the Petitioners give in to these demands, the Respondents will monitor their "performance" for a few months before withdrawing the various notices issued, proceedings commenced and prosecutions launched. Being aggrieved of the campaign launched against them involving illegal, malafide and abusive exercise of powers by the Respondents, the Petitioners prefer this petition before this Honourable Court.
3. That in view of the Constitutional guarantees of Fundamental Rights, and the dynamic interpretation of these Rights by this Honourable Court in a number of cases, the Petitioners who are the victims of arbitrary exercise of power resulting in gross violation of Fundamental Rights have filed this Petition. This petition raises issues of public importance relating to the enforcement of Fundamental Rights guaranteeing the freedom of speech and expression of the press as well as other Fundamental Rights including but not limited to the dignity of man (Article 14), the freedom of trade (Article 18), the right to hold property (Article 24), and the right to equality before law and the right to equal protection of law (Article 25), read, with Articles, 2A, 3 and 4, and the Principles of Policy, of the Constitution.
Questions of Law
A. Whether the power conferred by law on the Respondents can be exercised in violation of the Fundamental Rights guaranteed under Articles 14, 18, 19, 24 and 25 of the Constitution read with Articles 2A, 3 and 4 and the principles of policy thereof?
B. Whether the freedom of the press guaranteed under Article 19 of the Constitution permits the Respondents or their agents to interfere with the rights and obligations of the editors, publishers and printers of the newspapers?
C. Whether the freedom of the press guaranteed under Article 19 of the Constitution provides freedom from arbitrary interference by the Respondents in determining the personnel and editorial policies of the newspapers?
D. Whether the arbitrary and capricious demands raised by the Respondents for dismissal of particular journalists from newspapers of the Jang Group is compatible with the freedom of speech, expression and the press guaranteed under Article 19 and the dignity of man guaranteed under Article 14 of the Constitution?
E. Whether the machinery of the State can be used by the Respondents to penalize, intimidate and harass the newspapers of the Jang Group for providing news coverage of and commenting on the acts and conduct of public officials and government functionaries and whether such action is compatible with the rights guaranteed under Articles 14, 18, 19, 24 and 25 of the Constitution?
F. Whether the arbitrary distribution of government/semi-government advertisements to the different newspapers by the Respondent No. 2 is compatible with Article 4, 18, 19 and 25 of the Constitution of Pakistan?
G. Whether restraints imposed on the newspapers by arbitrary control over the supply of newsprint by the government is violative of Articles 4, 18, 19 and 25 of the Constitution?
H. Whether those of the Respondents who are statutory functionaries are constrained by the limits of the prescribed law under which they function or whether they are at complete liberty and without any legal constraints to take any action against the Petitioners including violation of their Fundamental Rights solely because the Petitioner publications are perceived by these Respondents to be critical of Government?
I. Whether in the event of there being any allegation of evasion of tax by any person, the concerned functionaries are required to observe the provisions of the law or whether they can unleash a reign of terror on the dictation or direction of the Respondents against any person as is now being done against the Jang Group?
J. Whether the proceedings by different functionaries responsible for collection of revenue, held in undue haste and in a most arbitrary manner, violate the Petitioners' Fundamental Rights of due process of law and access to impartial and independent quasi judicial fora?
K. Whether the imposition of emergency under Article 232 has the effect of suppressing the Fundamental Rights mentioned in Article 233(1), including Fundamental Rights in Articles 18 and 19, in all matters or the latter article shall only be applied in circumstances having a nexus with the grounds upon which emergency has been proclaimed?
L. Whether the assertion of Fundamental Rights (Articles 18 and 19 in particular against executive actions can be thwarted on the ground of application of Article 232 read with Article 233(1), even if the impugned actions are tainted with malafides?
M. Whether the state can take an executive action without the sanction of law merely on account of the application of Article 232 read with Article 233(1) of the Constitution and whether such impugned actions are sustainable at all?
N. Whether the grounds upon which emergency was proclaimed on 28-05-1998 and was upheld by the Supreme Court of Pakistan on 28-07-1998, are no longer available and whether it is not time to re-examine the continuance of emergency? The Petitioner in this regard relies on circumstances emerging during the preceding six months and indicated in material annexed herewith.)
Facts
1. That although modest in its origin, the Jang Group flourished due to the tireless efforts of its founder late Mir Khalil-ur-Rahman, his colleagues and the professional journalists of high repute with whom the Jang Group was privileged to be associated. Through their dedication and commitment to the highest ideals of freedom of the press, and by encouraging and promoting a free exchange of ideas which is fundamental right of the people and enables them to determine their lives through democratic discourse, the Petitioners have earned the trust and confidence of the people as a reliable source of information about, and comment upon, current events.
2. That the newspapers published by the Jang Group have provided a springboard for divers of ideas since their primary objective is to promote genuine discourse on issues of broader public interest for the people of Pakistan. It is with this objective that the Jang Group has consistently invited journalists with divergent views and political orientation to enlighten the readers through their columns on regular basis. The Jang Group has always endeavoured to maintain a balance in coverage and display of divergent news items of public importance in the larger national interest and has made every effort to disseminate information to the public. In the same vein the newspapers/periodicals of the Jang Group have also encouraged and invited analyses from experts in their respective fields as well as comments from general public through letters to the editors and through public surveys.
3. That insofar as reporting is concerned, the newspapers published by the Jang Group have always emphasized on investigative reporting while maintaining objectivity in disseminating information. These newspapers/periodicals have been particularly keen to ensure that their newsreports/analyses reflect facts and plurality of analyses. They have been no less sensitive to the need of a fair appraisal of governmental performance in its true perspective. It is for this reason that the newspapers/periodicals published by the Jang Group have succeeded in attracting a formidable readership which constitutes the majority of the readers in the country as well as amongst Pakistanis living abroad.
4. That in order to encourage further participation by the general public on issues which affect their lives, the daily Jang initiated a regular column carrying survey of public opinion which highlights the views of the ordinary citizens on topical issues. This column has generated tremendous interest of the readers as it is not only unprecedented but also reflects a wide variety of views.
5. That it is in the essence of democracy that plurality of views have effective access to the market place of ideas. That although free speech is its own justification, it is also the most effective mechanism for enabling people to determine the truth and to decide for themselves the most efficient policy(ies) to promote their interests. It is only through unimpeded democratic discourse that the truth emerges. This is exactly what the newspapers/periodicals of the Jang Group have endeavoured to do since their inception. In pursuit of these objectives, it is natural that the newspapers/periodicals publish material which the government of the day may not always find altogether pleasing and indeed quite often it finds such news/analysis irksome. Nonetheless, it has been the well thought out policy of the Jang Group that neither any information nor analysis is to be withheld from the readers, simply for the reason that it may irritate the government. A number of governments in the past have expressed their displeasure with what has been written about their performance and indeed some of them being less tolerant of criticism went to the extent of expressing their displeasure by withholding government advertisements from the publications of the petitioners and by threatening and pressurizing them through various means including but not limited to probing their tax files and re-opening cases and assessments which have been closed and concluded. Tax authorities have mostly been used by the governments to intimidate those who rightly or wrongly have been perceived as the opponents of the government. By subjecting its performance to objective analyses, the Jang Group has incurred the wrath of the present government with the consequences depicted in detail herein below. The government is now in the process of imposing further restrictions on free speech and expression and freedom of the press and unless it is restrained by this Hon'ble Court it will curb free speech, demolish the free press and by punishing the message as well as the messenger undo the democratic system of government which has just begun to sprout roots in the country.
6. That during the months of June & July 1998, governmental interference increased due to publication of a number of critical columns/news items in the newspapers of the Jang Group. These searching columns/reports and analyses were directed towards keeping the public informed and to encourage a wider discussion on issues of national importance.
7. That as stated above, the daily Jang which is published by the Petitioner No. 2 initiated a series of survey reports inviting opinions of the members of the general public through telephone/personal interview on current issues of national/international importance. The survey reports are a fair reflection of the prevailing trend of the public opinion and facilitate governments in gauging the public mood and formulating its policies. It may be added that such surveys are conducted by newspapers the world over and are regarded as a part of the normal activities and functions of the press in a democratic system of government.
8. That Article 19 of the Constitution guarantees freedom of the press. This envisages dual rights; namely the right of the newspapers to disseminate information/analyses on issues of current importance and the corresponding right of the public to receive the same and benefit from such analyses and comments. This is the essence of an informed public debate which forms the basis of democratic decision making. It is with this objective that the Constitution provides for an interactive process between the print media and its readers. However, even democratically elected governments have been just as prone to media hostility as their un-elected predecessors.
9. That the traditional means of governmental efforts to control the print media have been arbitrary interference with the supply of newsprint; complete stoppage of government advertisements, issuance of notices by subordinate state functionaries from the tax departments, boycott by government and its controlled bodies of such newspapers including cancellation of subscriptions, raids by FIA, false cases from customs authorities, arrests or threats of arrests, etc.
10. That sadly these arbitrary actions have been invoked on a routine basis by almost all the governments in the past and the actions of the present one unmistakably indicate that it is no exception. The objective news reports, fair comment and critical analyses of government policies published in some of the newspapers published by the petitioners No. 2 to 4 were taken by the present government in a spirit which though consistent with the response of its predecessors is completely alien to democratic governance. Although it is the privilege of every government to differ with the news expressed in a particular article or contradict news reports which it considers to be incorrect or unfair to its position, yet the government reaction must be compatible with the dictates of a Republican form of government which the Constitution of Pakistan envisages.
11. That the governmental response in the present context was to claim for itself a supervisory role of the newspapers by assuming for itself the functions which are normally assigned to the editors of newspapers. Indeed, the governmental claim went beyond that. It sought the power to hire and fire the newspaper employees and the right to determine for itself as to which journalist can be affiliated with the newspapers. All sorts of belligerent statements have been made on behalf of the government warning the print media of dire consequences.
12. That in early August 1998, Senator Saif-ur-Rehman, the Respondent No 3 being visibly annoyed with the overall editorial and personnel policy of the Jang Group, approached the Petitioner No. 2 on behalf of the government and raised the following demands:
a. Dismissal of four senior and renowned journalists namely, Mr Irshad Ahmad Haqqani, Ms Maleeha Lodhi, Mr Abid Tehami & Sohaib Margoob.
b. That the stories contributed by Mr Kamran Khan should be vetted by the Petitioner No. 1 personally prior to publication and the said petitioner should ensure that nothing against the government is published in his stories.
c. The publications of the Petitioner Nos. 2 to 8 should support the proposed constitutional amendment (CA-15). Likewise, the newspapers were required to support the government policies relating to the judiciary.
The details of the demands raised by the Respondent No 3 are attached herewith.
13. That the Petitioner No. 1 was assured by the Respondent No. 3 that if these conditions were fulfilled, all tax notices issued to the Jang Group and other actions will be immediately withdrawn. The Petitioner No. 1 refused to accept any of the conditions as it would have amounted to a complete surrender and negation of the freedom of the press and would have compromised the principles which the Petitioners have always stood for in the broader national interest.
14. That on refusal by Petitioner No. 1, the Respondents activated the age old methods used for pressurizing the media. The government advertisements to the Jang Group were gradually curtailed and then ultimately stopped completely. All tax authorities immediately commenced proceedings and re-opened decided cases. Fresh notices were issued and a typical story of victimization was repeated. Not content with this, the Respondents went even further and the telephones of Petitioner Nos. 1 to 8 and editorial staff of the publications of the Jang Group were tapped. Threat of arrest and implication in false cases was also made.
15. That ultimately, Petitioner No. 1 was constrained to raise the matter before the All Pakistan Newspapers Society (APNS) and the Council of Pakistan Newspapers Editors (CPNE). Thereafter, a joint meeting of the two bodies was convened at Islamabad on August 27, 1998 which discussed the matter and constituted a committee to have a dialogue with the government over this dispute with the Jang Group. Petitioner No. 1 was also compelled to hold a press briefing on the same day wherein the trade unions and federation of journalists from all over the country were also present to express their solidarity with the Jang Group. Petitioner No. 1 also met the Prime Minister on this account. Subsequently, the freeze on advertisements imposed earlier by the government, was lifted and there was some respite for the Petitioners. However, the cases pending before the income tax authorities, against the Jang Group, continued in-spite of the fact they were false and that they had been promised to be withdrawn.
16. That like all other daily newspapers, the daily Jang also published a report originally carried by the daily "Observer", London, regarding the first family, and the suggestion by General Jehangir Karamat, the then Chief of Army Staff for the constitution of a National Security Council. This was followed by some other investigative stories and a telephone survey. Upon the publication of the afore-said materials, the coercive apparatus of the state was immediately unleashed in all its fury against the Jang Group. The newspapers published these news items as they related to issues of national importance. The government resumed its anti-press and particularly anti-Jang Group campaign in its full swing and the Income Tax, Wealth Tax, the Customs authorities and FIA got involved with insurmountable zeal. False and concocted cases against the Jang Group and its directors were initiated with the sole aim and object to make the nation's largest and oldest newspaper establishment submit to the will of the government.
17. That although the foreign media particularly the British press published detailed reports about the financial dealings of the Prime Minister's family, yet due to the government's pressure these reports were published in low key manner without prominent display. Yet even this low key approach to publishing these news items led to a furious reaction from the government and it was annoyed that these items had been published at all.
18. That all these actions make a mockery of the Constitutional guarantees of the freedom of speech, expression and the press, and render the same completely devoid of meaning.
19. That in the month of November, 1998, Respondent No: 3 again confronted Petitioner No. 1 with a new set of demands and assured him that if these were met the actions initiated against the Petitioners would be stopped. These demands, inter-alia, included the following:-
a. Dismissal of sixteen prominent journalists and filling of the vacancies so created, by nominees of the government.
b. Initially it was demanded that the reports by Mr. Kamran Khan must be printed on the inside pages of the newspapers in single column and articles/columns of Mr. Irshad Ahmad Haqaani be reduced to once a week. Later the outright expulsion of these journalists was demanded.
c. Support for the government on CA-15, on the Karachi situation and other policies. In addition, it was demanded that nothing against the government should be published in the newspapers of the Jang Group.
d. No adverse comments about the private affairs of the family of the Prime Minister, such as the story(ies) published in the "Times" London, "Independent" London, and the "Observer" London as well as broadcasted by the BBC and the Voice of America etc.
Evidence of the fact that these demands, and the first set of demands referred to in para 11, were actually made by the Respondent No. 3 is in possession of the Petitioners and will be produced if denied by the Respondents or ordered by this honourable court.
20. That the Respondent No: 3 stated that if these conditions were fulfilled, the tax notices and other actions would be withdrawn. The said Senator also claimed having issued orders to the tax authorities to put pressure on the Petitioners and to "tighten their screws". He made other threatening remarks too stating that he will use the FIA and Customs and other state functionaries/authorities to teach a lesson to the Jang Group. He challenged that he would see how the Petitioners would publish its newspapers and asserted in a most arrogant manner that as far as the judiciary was concerned, "we can take the decisions from the judiciary on our own dictates". He also stated that in order to give the Jang Group a tough time he had made suitable transfers in the Income Tax Department (for desirable objectives) and promised transfer of the presidents of the banks in which the Jang Group operates its accounts. Likewise other officials of the government departments can also be transferred or changed to obtain desired results against the Jang Group.
21. That the Petitioner No. 1 refused to accept any of the demands made by the Respondent No: 3. He, however, offered the government an opportunity to publish its rebuttal on all news reports/columns which it found offending or untrue. It was promised that such reports/news etc would be published by the newspapers of the Jang Group with equal prominence. It is pertinent to point out that rebuttals and the government's point of views have always been published prominently as and when received. As it turned out, the Government was not interested in open dialogue but was only bent upon imposing its peculiar views.
22. That thereafter, the Respondents began proceeding against the Petitioners with indecent haste. Income Tax & Wealth Tax authorities began opening closed, past and decided cases, release/ex-bonding of newsprint by the customs authorities was refused without providing any reason and government advertisements were altogether stopped. On December 14, 1998, a three member team of the Respondent No. 4 raided the offices of the Daily Jang and The News, Rawalpindi, without any lawful authority and attempted to take away some record by force. It was only when the employees of these organizations gathered and protested that the raid came to end. The government including the Interior Minister initially denied the fact that the raid had taken place, but ultimately the Respondent No. 3, who, it may be noted is not a spokesman of the Ministry of Interior or of any other body relevant to the raid, not only admitted the same but promised more of similar actions against the Jang Group.
23. That without any independent application of mind; without jurisdiction and without any legal or factual basis, the officers of the Income Tax and Wealth Tax authorities, acting under the direction and dictates of Respondent No. 3, issued orders to reopen past and closed assessments of the Petitioners, and two of their Directors including the Petitioners No. 1's mother Mrs. Mehmooda Khalil. The purpose, obviously was to strangulate the Jang Group financially so that the government's wishes are complied with.
24. That the following is a catalogue of some of the unlawful actions and pressure tactics employed under the guise of proceedings under the Income Tax Ordinance 1979 and the Wealth Tax Act 1963:
i. In the month of August 1998 all income tax cases of Jang Group of Companies and their Directors which were being assessed in various different circles were transferred under section 5(1) of the Income-Tax ordinance, 1979 and Section 10(1) of the Wealth Tax Act, 1963 to one Circle Viz. Circle 01, Companies-II, Karachi where all the cases of targeted persons of the previous regime including Mrs. Benazir Bhutto are pending assessment and this circle is well known as a branch of the Ehtesab Cell, whose officer in charge works under the sole and absolute supervision of Senator Saif-ur Rehman, and follows his dictation and has abdicated his jurisdiction completely to the whims of the said Senator. All the officers from the Deputy Commissioner of Income-Tax to the Regional Commissioner of Income-Tax, Corporate Region, Karachi, were given instructions to reopen the assessments which had attained finality and also to initiate penal actions under all available provisions of the Income-Tax Ordinance, 1979 and the Wealth-Tax Act 1963. It is worth mentioning that one of the officials of the Income-Tax, Customs, FIA and banks themselves said that all such drastic actions against the Jang Group are being taken under the absolute instructions of Respondent No. 3 and he is the only person who can stop this victimization campaign.
ii. As a follow-up, on 19.8.1998 a show cause notice under Section 66-A of the Income-Tax Ordinance for Assessment year 1997-98 dated 11.8.1998 was issued by the Inspecting Additional Commissioner of Income Tax, Range-1, Companies, Karachi to the Petitioner No. 3 (M/s. Independent Newspapers Corporation (Pvt) Limited), the Publisher of Jang to reopen the assessment for 1997-98 on the ground that according to his opinion the company paid commission on sale of the newspapers without deducting withholding tax thereupon and that amount therefore, was required to be added to the company's income adding Rs. 426,788,054/- to the already assessed income. Similarly other allegations of purely conjectural nature were made; e.g that since on all the expenses debited to the cost of sales account, it was presumed that no tax has been deducted, such amounts were also to be added to the income of the company. Further it was alleged that the assessing officer had not properly scrutinized various items and the company was asked to explain alleged discrepancies the details of which were spread over 7 pages. The said notice was received on 19.8.1998 and the compliance date was fixed upto 26.8.1998. The company requested the Inspecting Additional Commissioner of Income Tax to extend the date of compliance for a few days upto 31.8.1998 as the information required was voluminous and the time was too short. This genuine request of the company was not acceded to and in a summary manner the adjournment application was rejected. Consequently, the company filed a detailed explanation on 26.8.1998. The Inspecting Additional Commissioner of Income Tax, instead of considering this explanation, passed an ex parte order on 25.8.1998 even though the hearing had been fixed for 26.8.1998 i.e. one day prior to the date of hearing. The ex parte order was ex facie malafide because it was passed even before the compliance was due. Through this order, the assessment framed by the Assessing Officer was cancelled and the latter was directed to frame a fresh assessment.
iii The company challenged the said order before the Income Tax Appellate Tribunal under Section 134 of the Income Tax Ordinance. However, in the meanwhile the Assessing Officer issued notice dated 29.8.1998 under Section 61 asking the company to file details, documents and explanations with reference to the issues/points raised by the Inspecting Additional Commissioner of Income-Tax in his order under Section 66-A. A request was made to the Assessing Officer that since an appeal had been filed before the Income-Tax Appellate Tribunal against the main order, the cases may be adjourned till the appeal was decided on out of turn basis for which an application had already been moved. This application for adjournment was rejected and fresh notice dated 10.10.1998 was issued for compliance on 17.10.1998. On 17.10.1998 a representation was made to his superior office i.e. Inspecting Additional Commissioner of Income Tax. In this representation, after giving the back-ground and explaining the issues raised by the Deputy Commissioner of Income-Tax, the Inspecting Additional Commissioner of Income-Tax was requested to direct the Assessing officer to keep the proceedings in abeyance till the decision of the Income-Tax Appellate Tribunal as the same issues were sub-judice before the said Tribunal. However, this request was rejected and the assessment was framed ex parte under Section 62 read with Section 66-A making heavy additions of Rs. 443,139,939/- to the income of the company as originally assessed at Rs. 102,105,038/- creating a net additional demand of Rs. 151,033,174/-. Along-with the Assessment order, actions for penalty under Section 111 and prosecution under Section 117 were also proposed. In the demand notice as against the normal 30 days, it was ordered that the payment of the demand of over Rs. 15 Crore (Rupees Fifteen Crore only) should be made within 7 days.
iv. In the case of the same company the Inspecting Additional Commissioner of Income-Tax passed order under Section 66-A on 24.10.1998 for Assessment years 1995-96 and 1996-97 on the same basis as was opted for in respect of the Assessment year 1997-98 without affording proper opportunity of hearing and without conducting any enquiry as was required under Section 66-A and an additional demand of Rs. 278,692,619/- and of Rs. 265,299,083/- was created for assessment years 1995-1996 & 1996-97 respectively.
v. Yet another order under Section 52 was passed treating the Company as an assessee in default for allegedly not deducting Tax under Section 50 from various payments made during the course of the business. An additional demand of Rs. 37,235,343/- was raised under Section 52 of the Ordinance. Through all four orders Tax demand of Rs. 732,260,719/- (Rupees Seventy Three Crore, Twenty Two Lac, Sixty Thousand and Seven Hundred and Nineteen only) was imposed in just one day and ordered to be paid within 7 days of each other.
25. That faced with this predicament the company approached the Inspecting Additional Commissioner of Income-Tax, the Commissioner of Income-Tax Companies II, Karachi on 3-11-1998 praying for stay till 19-11-1998 for which date the Income-Tax Appellate Tribunal had fixed the Appeal for hearing. As no action was in sight on this application, the company was asked to approach the same Inspecting Additional Commissioner of Income-Tax who had passed the Orders. as was expected, by his letter dated 5-11-1998, the Inspecting additional Commissioner of Income Tax rejected the request for grant of stay. On the same day notices under Section 92 were issued to all the Banks in Karachi, Lahore and Rawalpindi to pay a sum of Rs. 219,678,065/- to the Deputy Commissioner of Income Tax, thus freezing all the bank accounts of the company. Similar notices were also issued to the Collector of Customs, AGPR & PID Islamabad as well as Punjab News Agency, Urdu Bazaar, Karachi who is one of the large distributors of the Jang publications. The entire business of the company came to a standstill, so much so that because of the account having been frozen, even salaries of the employees could not be paid.
26. That it is submitted that the learned Income-tax Appellate Tribunal heard the stay applications as well as the main appeals on 19-11-1998 and as a result, the orders under Section 66-A for 1995-96 and 1996-97 were remanded while the order for Assessment Year 1997-98 was annulled. The learned Income-Tax Appellate Tribunal in its appellate order, has elaborately made reference to the illegal manner in which the orders were passed in violation of the principles of natural justice and also in violation of the provisions of Section 66-A itself which enjoins not only proper opportunity of hearing but also of making necessary inquiries to pass a just and lawful order. Before the Income tax Appellate tribunal, the Inspecting additional Commissioner of Income Tax who has passed the impugned orders personally appeared and admitted the violations of law. The Learned Tribunal was pleased to take the considered view that the IAC had proceeded in undue haste with the result that clear miscarriage of justice had taken place. It was further observed by the Tribunal that the assessee should be given a reasonable opportunity of being heard meaning thereby that reasonable time should be allowed for the production of necessary evidence and material. In another Order of the same Learned Tribunal it is clearly mentioned that IAC did not advert to the provision that opportunity of being heard is required to be afforded to the assessee.
27. That it is respectfully submitted that the above narration of the treatment meted out to the Jang Group is only in the case of one of the companies which proves without the shadow of a doubt, the high handedness and complete disregard of lawful exercise of power to financially ruin, strangulate and destroy the Jang Group of companies and its Directors in order to throttle the institution of free press and freedom of expression as guaranteed under Article 17 of the Constitution. These actions also violate the Petitioner's constitutional rights guaranteed under Article 4 and the fundamental rights guaranteed to it under Articles 4, 18 and 23 of the Constitution.
28. That it is further submitted that notices under Section 92 were issued on 27-8-1998 in the case of one of the companies viz. M/s. J & S Enterprises (Pvt) Ltd. freezing bank accounts for recovery of alleged demand amounting to Rs. 5,770,000/-. This notice was revised on 28-8-1998 reducing the demand to Rs. 1,450,000/- However, the notice was withdrawn on 29-8-1998 since its frivolity was all too evident.
29. That it is submitted that in respect of yet another company namely M/s. Jang Publications (Pvt) Ltd., a notice under Section 92 was issued on 24-8-1998 at 4.00 P.M upon the Bankers of the said company by the Deputy Commissioner of Income-Tax for an amount of Rs. 5,037, 662/-, thus freezing the bank accounts. At the same time a notice under Section 81 of the Land Revenue Act was served at 12.00 Midnight by the Assistant Commissioner, South Karachi for the recovery of the same amount of Rs. 5,037,662/-. The notice issued by the Deputy Commissioner of Income-Tax under Section 92, was, however, withdrawn by him on 28-8-1998 as he was satisfied that the demand had already been paid. However, to keep the pressure on the Petitioner the notice issued by the Assistant Commissioner, South, Karachi under Section 81 of the Land Revenue Act has still not been withdrawn.
30. That it is respectfully submitted that during the same period, notices for recovery of outstanding demand were issued in the name of M/s Combined Investments (Pvt) Limited for the Assessment Years 1993-94 and 1994-95. Another notice was issued for recovery of tax to the same company for alleged arrears demand of 19 years starting from 1968-69 to 1996-97. Similar letters dated 26-8-1998 were issued to Mir Shakeel-ur-Rahman for payment of outstanding demand in the case of M/s. Independent Newspapers Corporation (Pvt) Limited. Another notice dated 27-8-1998 was issued in the name of M/s Jang Enterprises (Pvt) Limited for recovery of outstanding demand. Similarly a notice dated 27-8-1998 was issued in the name of late Mir Khalil-ur-Rahman for recovery of outstanding arrears demand for about 10 years. It is respectfully submitted that all these letters/notices were only issued to harass the companies as well as its Directors whereas in actual fact there was hardly any demand outstanding for the years mentioned in the notices. Either the demand had already been paid or necessary adjustments and appeal effects had not been given by the Assessing Authorities.
31. That in a nutshell, the Respondents' campaign against the Petitioners comprises, inter alia, in the issuance of a large number of Income Tax and Wealth Tax notices, show cause notice from Customs authorities, raid by the FIA at the offices of the Petitioners, transfer of all tax cases to one particular circle, issuance of 22 letters and notices in the short span between 19th August to 28th August 1998 including notices under Section 66 A, notices under Section 92 for seizing bank accounts and other letters for the payments of demands, notices under the Land Revenue Act for recovery of alleged demand, notice under Section 65, criminal complaint against Petitioner No. 2 and one of the directors of Petitioner No. 3, Mir Javed Rahman under the Wealth Tax Act, passing of two orders by the tax authorities under Section 66-A, demanding payment of Rs.1,223,432,102/-, passing of order under Section 52 raising a demand of Rs. 37,235,343/-, show cause notice from collector customs on the false charge of misusing the concessionary rate of duty on newsprint, complete stoppage of newsprint ex bonding by the custom authorities without assigning any reason [the above stated three orders passed by the Income Tax Authorities in tax matters and the demand of Rs. 593 million contained in the show cause notice issued by the Customs department collectively make a demand of Rs. 1,853,667,445/- (Rupees one billion, eight hundred and fifty three million, six hundred and sixty seven thousand, and four hundred and forty five only) on the Petitioner]. Besides the above stated, numerous actions and creation of false demands are in the pipeline which are and will be created so as to teach a lesson to the Jang Group.
32. That as a part of this campaign a raid was made on M/s Rehan Paper Mart, newsprint merchants, and Mr. Irfan, one of the owners of M/s Rehan Paper Mart, was arrested and kept in illegal custody by the FIA for three or four days. He was also taken to Islamabad and was threatened with dire consequences if he did not give a false statement against the Jang Group and particularly against Petitioner No 2 to the effect that the Jang Group illegally sold newsprint to him. Similarly the newsprint clearing agent of Jang Group was also kept in two days detention by the FIA to extort a false statement from him against the Jang Group. Since the Jang Group has never been involved in the selling of newsprint in any market therefore no evidence could be collected on this count. However, the FIA Banking Circle registered an FIR No. 77/98 on 26-12-1998 against Mr Ikhlas Ahmad, the owner of M/s Rehan Papers and his son Irfan Ahmad. The FIR against the above stated persons has been registered on the alleged heavy tax evasion on import of newsprint in connivance with the Jang Group. The information available so far indicates that the Jang Group and its clearing agent have not been implicated in the FIR but in order to defame and damage their goodwill the government news agency APP deliberately circulated a misconceived news item against the Jang Group.
33. That though all the false and concocted cases against the Jang Group are still pending, the government spokespersons, the Prime Minister and the Respondent No 3 repeatedly issued statements to the national press wherein the Jang Group is declared as a tax evader and charges for concealment of income and wealth are levelled against its members. False and totally fabricated figures are provided in these statements and the sole aim of all this is to seriously tarnish and damage the reputation of the Jang Group in the eyes of the general public. Statements aimed at the character assassination and disparagement of the Petitioner No. 2 and the father of the Petitioner No. 2, Mir Khalil-ur-Rahman who was the founder of Jang Group have also been made.
34. That the malicious campaign against the Petitioner was a subject of comment in the national press and also broadcasted by Foreign Radio Stations. The representative bodies of newspapers like All Pakistan Newspapers Society and Council of Newspapers Editors also took cognizance of the matter and resolutions were passed decrying the actions being taken. These reports were also given wide coverage by national as well as international media. The Respondents restrained their hand for some time but again when some investigative reports were published to the dislike of the government and the episode of the resignation of General Karamat COAS occurred which received due coverage and analyses in the newspapers of the Jang Group, the entire Income Tax machinery jumped into malicious actions and a fresh spate of notices and orders and freezing of bank accounts was set in motion and is continuing to date.
35. That as stated before, the government and Respondent No 3 also pressurized the Customs authorities not to allow ex-bonding of newsprint of the Jang Group and no reason has ever ben given for this. That as a consequence the Petitioners' newspapers were compelled to print their newspapers on coloured newsprint paper on December 19 and 20, 1998, which is expensive and only retained for special editions. The number of pages of the newspaper from December 21, 1998 also had to be reduced and the publication of daily magazines was stopped.
36. That insofar as advertisements by the government and its controlled bodies are concerned, this tool has always been used by different governments to pressurize newspapers. These advertisements provide a formidable tool of pressure to the Government particularly in its dealings with the print media, yet no law or statutory provision or rules or regulations or transparent policy has ever been formulated or adopted by the Government for the distribution of these advertisements to different newspapers. When government advertisements are not published in newspapers with a large circulation then, obviously, the response to these advertisements is not very encouraging. As a result, people are deprived of the news value of advertisements such as tenders, quotations, etc, invited by different government departments. The lack of proper response to these advertisements also leads to loss of revenue for the concerned government departments.
37. That since 1966, advertising for the Government and other authorities under its control is done in a centralized manner through the Press Information Department (PID) of the Respondent No. 2. Whenever the Government is unhappy with a particular newspaper or group of newspapers, it suddenly stops or substantially curtails the number of advertisements provided to that newspaper or the group of newspapers. The Jang Group is presently on the receiving end of this arbitrary policy.
38. That it may also be submitted that no access is permitted by the government to any newspaper or journalist to study and inspect relevant official records (and other sources of information) prior to contributing or authoring any article or news item for or against any person. The concept of the freedom of the press includes the right to access information which is at the government disposal disclosure of which is in the interest of the public and of the country.
39. That the Petitioners' newspapers and publications are threatened with extinction. The fundamental rights of the Petitioners as guaranteed by the Constitution of Pakistan 1973 have been and continue to be grossly violated. The violation of the fundamental rights of the Petitioners, through acts aimed to cripple and destroy the Petitioners' newspapers also constitutes violation of the fundamental right of the public at large to receive information. In any case, the actions of the Respondents detailed here in above constitute matters of public interest per se. The Petitioners have therefore been compelled to file this Original Petition under Article 184(3) of the Constitution of Pakistan 1973, inter alia, on the following grounds:
Grounds
1. That although Article 19 of the Constitution Guarantees freedom of the press, the Respondent authorities particularly the Respondent No. 3 has launched a campaign of harassment and intimidation against the Jang Group and has been compelling them to dismiss particular journalists, columnists, and others on the ground that they write against the Government, which act of the Respondents is violative of fundamental rights of the Petitioners.
2. That the Government has no business telling any newspaper as to who would write columns and what should be the content of the columns or news reports or coverage and display, as such interference constitutes a grave contravention of the freedom of press and expression. If the Respondents are allowed to interfere with the personnel and editorial policies of the Petitioners, freedom of speech and freedom of the press would come to an end.
3. That on refusal of the Petitioner No 2 to accept the illegal and illegitimate demands of the Government voiced through the Respondent No. 3, government has unleashed its coercive apparatus and different functionaries to financially destroy the Petitioners by unleashing a spate of tax demands and cases, and with indecent haste have passed adverse and manifestly biased order without observing the principles of natural Justice and due process of law.
4. That although the various functionaries who act under the authority of the Respondent No. 5 act in a quasi-judicial capacity, yet they have acted and continue to act on the instructions of the Respondent No. 3 to pass malicious, bogus and adverse orders against the Jang Group which is highly unjustified and illegal.
5. That although the tax cases of the Petitioners fall within the jurisdiction of different officers, they have been referred to the particular officers of a particular circle who are notorious for their collusion with the Respondent No. 3 and who are being used by the Respondent No. 3 to intimidate and terrorize the persons targetted by the said Respondent for exemplary punishment.
6. That the Respondent No. 3 has no lawful authority or jurisdiction to dictate or force the Jang Group to accept his unjust demands and to pass instructions to the Income Tax, Wealth Tax, Custom Authorities and FIA to victimize the Jang Group and create or register false cases against them.
7. That the functionaries of FIA working under the authority of Respondent No. 1 have malafidly raided the offices of daily Jang & The News Rawalpindi under the instructions of Respondent No. 3.
8. That the seizure of bank accounts of Jang Group of newspapers are malafide with the sole motive and intention to close down the whole establishment.
9. That the Respondent Nos. 1 & 2 should make laws or statutory provisions, rules or a transparent policy for regulating or conducting the distribution of government advertisements in the newspapers.
10. That the Respondent Nos. 1 & 2 should make laws to grant access to journalists to all official records of government authorities for effective and accurate information and contribution to news items.
PRAYER
It is therefore respectfully prayed that this Honourable Court be pleased to:
(i) Declare that the arbitrary actions enumerated hereinabove taken by the Respondents individually or collectively against the Jang Group, i.e. the Petitioners, are malafide and without lawful authority and in utter violation of fundamental right of freedom of press and expression as guaranteed under Article 19.
(ii) Direct the Respondent No. 1 to immediately stop the entire victimization campaign against the Jang Group of newspapers, its Companies, Directors and employees.
(iii) Declare that the arbitrary with-holding of government advertisements to the newspapers is violative of Articles 18, 19 & 25 of the Constitution.
(iv) Direct the Respondent No. 2 to immediately restore issuance of Government advertisements to the Jang Group as before, and on the basis of a clear, transparent policy and it may further be directed to structure its discretion in this regard by clear and transparent rules.
(v) Direct the Respondent No. 2 to formulate an equitable policy for a just distribution of the Government advertisement to newspapers.
(vi) Direct the Respondent No. 3 to refrain from monitoring and supervising the Petitioners or from pursuing a victimization campaign against the Jang Group or any other newspaper.
(vii) Prohibit the Respondent No. 4, and its subordinates and officers, from raiding any offices of the Petitioners and from registering false cases or conducting investigations against the Petitioners.
(viii) Quash all the malafide orders passed/show cause notices issued by the Income Tax, Wealth Tax and Customs Authorities under dictation of the Respondent No. 3.
(ix) Direct the Respondent No. 5 and the functionaries working under it to immediately release the newsprint.
(x) Direct the Respondent No. 5 to withdraw all freeze orders against the bank accounts of the Petitioners.
(xi) Direct the Respondents not to interfere in any professional work or the editorial and personnel policies of the newspapers, magazines and publications of the Petitioners.
(xii) Direct the Respondents not to institute or initiate any action against the Jang Group of Newspapers, Companies or its directors or personnel pending decision of this petition without intimation to and permission of this Honourable Court.
(xiii) Direct the Respondent No. 5 to prohibit investigation in all pending tax matters of the Petitioners by biased officials acting under the dictation of Respondent No. 3, and no assessment or any order in any tax matter relating to the petitioners should be passed without first obtaining permission of this Honourable Court.
(xiv) Direct the Respondents Nos. 1 & 2 to allow proper access of journalists to all government records and the records of subordinate offices and authorities for the proper information and reporting of news.
(xv) Any other relief which this Honourable Court deems just and appropriate in the circumstances of the case.
Dated: 26-01-1999
Drawn By Filed By
(Abid Hasan Minto)
(Sheikh Masood Akhtar)
Advocate Supreme Court,
Advocate-On-Record,
17-Lawrence Road,
Supreme Court of Pakistan,
Lahore, C.C. 161 4-Mozang Road, Lahore.