IN THE SUPREME COURT OF PAKISTAN 
 
    (Appellate Jurisdiction) 
 
 
 
 
 
 
Present: 
 
 
 
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.  
 
 
 
Mr. Justice Tariq Parvez 
 
 
 
Mr. Justice Amir Hani Muslim 
 
CIVIL PETITION NO. 683 OF 2011 
 
 
 
(On appeal from the judgment/order dated 
 
 
18.05.2011 passed by Sindh High Court, 
 
 
Karachi in CP.D-1743 of 2009) 
 
 
 
Independent Music Group SMC (Pvt) Ltd. 
and another  
 
 
 
 
 … 
… 
Petitioners.  
 
 
 
 
Versus 
Federation of Pakistan, etc.  
 
 
… 
… 
Respondents.  
 
For the petitioners   
: 
Mr. Mohammad Akram Sheikh, Sr. ASC.  
 
 
 
 
 
Mr. Mehmood A. Shiekh, AOR.  
 
For respondent No.2  
: 
Mr. M. Ali Raza, ASC.  
 
 
 
 
 
Mr. Abdul Jabbar, Acting Chairman PEMRA.  
 
Respondent No.1  
: 
Not represented.  
 
Date of hearing  
 
: 
06.06.2011. 
 
 
 
 
 
JUDGMENT  
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – This petition has 
been filed for leave to appeal against the judgment dated 18.05.2011 passed 
by High Court of Sindh, Karachi. Challenge has been made to the 
impugned judgment only to the extent of seeking relief that the learned 
Division Bench of the High Court, in the facts and circumstances of the 
case, instead of remanding the matter to the respondent i.e. Print & 
CP.683 of 2011 
2 
Electronic Media Regulatory Authority (PEMRA) to decide the application 
of the petitioners for licence, should have issued a writ in the nature of 
mandamus, directing the PEMRA to issue the licence.  
2. 
 
Briefly stated facts of the case are that as back as on 2nd July, 
2007, the petitioners submitted an application to the respondent No.2 for 
issuance of licence to establish & operate Satellite TV broadcast channel 
station, under Rule 6 of the Pakistan Electronic Media Regulatory 
Authority (PEMRA) Ordinance, 2002 [hereinafter referred to as ‘the 
Ordinance, 2002’] for a period of 15 years i.e. period permissible to avail 
such licence. Admittedly this application remained pending and the 
PEMRA failed to decide the same within the period of 100 days as required 
under Section 22 of the Ordinance, 2002. However, after passing of a 
considerable period, on 08.07.2009 it refused to grant licence due to 
“security clearance” not given by Ministry of Interior. Contents of the letter 
are reproduced hereinbelow:- 
“2. 
It is informed that the Authority in its 55th meeting held 
on 3rd July, 2009 has refused the award of satellite TV licence 
to M/s Independent Music Group (SMC-PVT) due to regret of 
security clearance by Ministry of Interior, which is obligatory 
under Rule 10(iv) of PEMRA Rules for issuance of licence.” 
 
The petitioner being dissatisfied from the above order as well as the order 
of the Secretary Interior dated 09.06.2009, preferred a writ petition before 
the High Court of Sindh at Karachi on 17.08.2009, inter alia, praying 
therein that directions be issued to the respondents particularly the 
CP.683 of 2011 
3 
respondent No.2 i.e. the PEMRA to immediately issue the Satellite TV 
broadcast channel licence to the petitioners. The petition was contested by 
the respondents. However, the learned Division Bench of the High Court 
vide impugned judgment allowed the same but the case was remanded to 
the PEMRA as it has been noted hereinabove. Relevant paras are 
reproduced hereinbelow for convenience:- 
“13. 
It was contended by the learned counsel for the petitioner 
that petitioner’s case is governed by PEMRA Rules of 2002 and 
not by PEMRA Rules of 2009. PEMRA Rules of 2009 were 
promulgated on December 12, 2009 and this Constitution Petition 
was filed on 17.8.2009, therefore,  the date  on which the PEMRA 
Rules were promulgated this Constitution Petition was already 
pending. It is settled law that notifications, instructions, circulars 
etc., issued by the government or statutory bodies operate 
prospectively and not retrospectively. In this regard one may refer 
to Hashwani Hotels Limited v. Federation  of Pakistan and 
others, PLD 1997 SC 315, Army Welfare Sugar Mills Ltd. v. 
Federation of Pakistan and  others 1992 SCMR 1652 and 
Dadabhoy Cement Industries Ltd. v. M/s National Development 
Finance Corporation, 2002 CLC 166. Even otherwise PEMRA 
Rules of 2009 which repealed the Rules of 2002 in Rule 20(2)(d)(v) 
which provide for  repeal of Rules of 2002 provide  that the repeal 
shall not: 
“(v) 
affect any investigation,  legal proceeding 
or remedy in respect of any such right, privilege, 
obligation, 
liability, 
penalty, 
forfeiture 
or 
punishment as aforesaid.” 
 
Present legal proceedings were already pending when the Rules of 
2009 came and therefore in any case the petitioners application 
could not have been dealt with under PEMRA Rules of 2009 and 
should have been processed under Rules of 2002. 
14. 
Contention of the learned counsel for the petitioner was 
that there was no requirement of security clearance under Rule 10 
of REMRA Rules of 2002, whereas the requirement of security 
clearance was for the first time brought about by Rule 9(5) of the 
CP.683 of 2011 
4 
Rules of 2009. Learned counsel for the PEMRA submitted that 
requirements of “credibility and track record” provided in Rules 
of 2002 themselves encompass security clearance. We do not think 
that we need to decide this controversy and leave if for  decision in 
an appropriate case because what has happened in this case is that 
PEMRA while referring the case to Ministry of Interior pointed out 
that Respondent  No.2 is also Director of another company which 
has already been granted a licence for  one satellite broadcasting 
station. Moreover the Ministry of Interior has not given any reason 
whatsoever as to why security clearance was not given to the 
petitioner. Leaned Standing Council merely stated that she relied 
upon the comments submitted by the Ministry of Interior. It was 
available to the Ministry of Interior to bring to this Court the 
material that they had against the petitioners. They have chosen 
not to do so. This  Court cannot ignore the fact that GEO SUPER 
has been, though  through up linking licence, temporary landing 
rights permission telecasting sports programmes, it was stated, for 
five years and the sole owner of Petitioner No.1, (such sole owner 
is himself Petitioner No.2) has been granted TV Licenses for four 
other channels. No material has been placed before us to prima 
facie establish as to what threat if any was perceived to be likely to 
be caused by grant of licence to the petitioners. Therefore, based 
on the material produced before us, it appears to us that it was not 
justified for the Ministry of Interior to refuse clearance to the 
petitioners. Moreover every executive order must contain reasons 
for the order and we have not been able to divine any reason in 
this regard at the best none has been pleaded. 
15. 
However, contention of learned counsel for the respondent 
by reference to Section 23 of the PEMRA Ordinance deserves some 
weight. Section 23 of the PEMRA Ordinance, provides as under: - 
“23. 
Exclusion of monopolies.-(1) No person 
shall be entitled to the benefit of any monopoly or 
exclusivity in the matter of broadcasting or the 
establishment and operation of broadcast media or 
distribution service or in the supply to or purchase 
from a national broadcaster of air time, programmes 
or advertising material and all existing agreements 
and contracts to the extent of conferring a monopoly 
or containing an exclusivity clause are, to the extent 
of exclusivity, hereby declared to be inoperative and 
of no legal effect. 
CP.683 of 2011 
5 
(2) In granting a licence, the Authority shall ensure 
that open  and fair competition is facilitated in the 
operation of  more than one media enterprise in any 
given unit of area or subject and that undue 
concentration of media ownership is not created in 
any city, town or area and the country as a whole: 
Provided that if a licensee owns, controls or 
operates more than one media enterprise, he shall 
not indulge in any practice which may impede fare 
competition and provision of level playing  field.” 
16. 
It has been stated in the Counter-Affidavit filed to the stay 
application as well as in the comments that four broadcasting 
licences have already been granted to this group. Now this is not 
the reason stated in the impugned order for which the application 
for licence has been declined. At the same time no re-joinder to the 
Counter-affidavit or the comments has been filed by the 
petitioners. This in any case is an aspect which requires evaluation 
by the licensing Authority and task of such evaluation cannot be 
undertaken by this Court in exercise of its Constitutional 
Jurisdiction. 
17. 
Resultantly we set aside the impugned order dated July 8, 
2009 and June, 15, 2009 and remand the matter to PEMRA to 
decide the application of the petitioner for licence in accordance 
with the law within a period of two months of the date of this 
judgment.  
Constitutional Petition alongwith the listed application is disposed 
of in the above terms.” 
 
3. 
 
Instant petition has been filed for leave to appeal on behalf of 
the Independent Music Group SMC (Pvt.) Ltd. and others whereas the 
PEMRA has conceded the judgment as it has not challenged the same 
before this Court.  
4. 
 
Learned counsel for the petitioners contended that once the 
High Court had concluded that refusal of grant of licence is not sustainable, 
it may have issued clear directions to the PEMRA for issuance of licence as 
CP.683 of 2011 
6 
it was requested for in the application dated 02.07.2007. To substantiate his 
plea, he has stated that under Section 22 of the Ordinance, 2002, it was 
incumbent upon the PEMRA to decide the application of the petitioners 
within a period of 100 days and as this period had already been consumed 
by the PEMRA because the matter was kept pending for period of about 
four years without any justification, no option was left with the PEMRA 
except to issue licence to the petitioners.  
5. 
 
On the other hand, learned counsel for the respondents 
candidly conceded that the PEMRA has not challenged the judgment of the 
High Court as it has accepted whatever is stated therein but as soon as the 
judgment passed by the High Court of Sindh was received by the PEMRA, 
the process has been initiated for completing other formalities and that no 
sooner the same is completed the licence would be issued.  
6. 
 
After hearing both the sides and having gone through the 
contents of the judgment of the High Court, under challenge, we are of the 
opinion that the learned High Court, keeping in view the fact that the 
petitioners have already suffered for a period of about four years, instead of 
remanding the case, may have issued a writ in the nature of mandamus. Be 
that as it may, if it has not done so, the PEMRA is under obligation, both 
legally and morally, to issue licence to the petitioners because the reason 
which prevailed upon it for refusing to issue licence to the petitioners i.e. 
“security clearance”, has not been accepted to by the learned High Court, 
therefore, the petitioners who on the basis of their application waited for a 
CP.683 of 2011 
7 
period of more than 100 days, during which his application has not been 
rejected, has acquired a right that they should be dealt with in accordance 
with law as is envisaged under Article 4 of the Constitution of Islamic 
Republic of Pakistan, 1973. Any excuse now being made on behalf of the 
PEMRA is not acceptable for the reason that earlier when the rejection 
order was passed on 8th June, 2007, which has been reproduced 
hereinabove, no such demand was put forward calling upon the petitioners 
to fulfill the same or to remove the objection if any. If such practice is 
allowed to prevail then there would be no end to the litigation and if a 
request has been rejected/refused beyond the statutory period and the order 
is not sustained before the High Court then, with a view to deprive a person 
who is entitled to the licence and his application has been kept pending for 
four years, without being processed, there shall be no end to his matters 
and he is to enter into litigation time and again for the reasons which shall 
be put before him from time to time.  
7. 
 
We have noted regretfully that the authorities, who are 
required to discharge their functions under statutory provisions, kept the 
matters lingering on without any legal or constitutional justification; as it 
happened in the instant case because it was for the PEMRA either to have 
rejected the application within 100 days under the law or it would have 
accepted the same; but now when the Court has intervened and passed the 
impugned order, no other excuse shall be acceptable for the purpose of 
causing delay in disposal of application of the petitioners.  
CP.683 of 2011 
8 
 
 
Thus for the forging reasons, the petition is converted into 
appeal and allowed. The PEMRA is directed to issue immediately licence 
to the petitioners, in terms of their application, which they have submitted 
on 02.07.2007 and submit compliance report of this order to the Registrar 
of this Court within a period of three days, which shall be placed before us 
in Chambers for perusal. Parties are left to bear their own costs.       
 
 
 
 
 
 
 
 
 
 
CJ. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
J. 
Islamabad,  
06.06.2011. 
Irshad Hussain /* 
 
 
 
NOT APPROVED FOR REPORTING.  
 
