IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
 
MR. JUSTICE IJAZ UL AHSAN 
 
 
MR. JUSTICE SAJJAD ALI SHAH 
 
 
CIVIL APPEALS NO.700 TO 703 OF 2017 
(Against the judgment dated 28.12.2016 of the Lahore 
High Court, Lahore passed in W.P.No.25317 of 2016) 
 
AND 
 
CIVIL MISC. APPLICATION NO.1407 OF 2018 
(Applications for impleadment as party) 
 
 
1. 
MAG Entertainment (Pvt) Ltd. Vs. Independent 
Newspapers Corporation (Pvt) Ltd. etc. 
 
In C.A.700/2017 
2. 
PEMRA 
Vs. 
Independent 
Newspapers 
Corporation Pvt. Ltd. etc. 
 
In C.A.701/2017 
3. 
M/s Startimes Communications Pakistan Pvt. 
Ltd. Vs. PEMRA etc. 
 
In C.A.702/2017 
4. 
Shahzad Sky (Pvt) Limited Vs. Independent 
Newspaper Corporation (Pvt) Ltd. etc. 
 
In C.A.703/2017 
 
For the appellant(s): 
Mr. Aitzaz Ahsan, Sr. ASC 
Mr. M. S. Khattak, AOR 
(In C.A.700/2017) 
 
Mr. Salman Akram Raja, ASC 
Ch. Munir Sadiq, ASC 
Syed Rifaqat Hussain Shah, AOR 
Mr. Ashfaq Jamani, Executive Member, PEMRA 
Mr. Ali Zeeshan Gondal, Head Legal, PEMRA 
(In C.A.701/2017) 
 
Mr. Wasim Sajjad, Sr. ASC 
Mr. Mehr Khan Malik, AOR 
(In C.A.702/2017) 
 
Syed Feisal Hussain Naqvi, ASC 
Syed Rifaqat Hussain Shah, AOR 
(In C.A.703/2017) 
 
 
For the applicant(s): 
Mr. Asad Kharal, in person 
(In C.M.A.1407/2018) 
 
 
For the respondent(s): 
Mr. Jan Asif Mehmood Lar, ASC 
Ch. Akhtar Ali, AOR 
Civil Appeal No.701/2017 etc. 
-: 2 :-
(For respondent No.1 in C.As.700, 701, 703/2017 and 
For respondent No.2 in C.A.702/2017) 
 
 
On Court’s notice: 
Mr. Ashtar Ausaf Ali, Attorney General for 
Pakistan 
Mirza Nasar Baig, DAG 
 
 
Date of hearing: 
8.5.2018 
 
JUDGMENT 
MIAN SAQIB NISAR, CJ:– The judgment impugned before 
us through Civil Appeals No.700/2017, 701/2017, 702/2017 and 
703/2017 was passed by the learned Lahore High Court in Writ Petition 
No.25317/2016 on 28.12.2016. The appellants in three of the aforesaid 
appeals are successful bidders for Direct To Home (DTH; defined in Section 
2(hb) of Pakistan Electronic Media Regulatory Authority Ordinance 2002) licenses to be 
issued by Pakistan Electronic Media Regulatory Authority (PEMRA). 
PEMRA sought bids for three licenses for DTH distribution service(s). The 
entire bidding process was challenged by Independent Newspapers 
Corporation (Pvt.) Ltd (the respondent) through Writ Petition No.25317/2016. 
The respondent challenged the vires of Rule 13(3) and (4) of the Pakistan 
Electronic Media Regulatory Authority Rules, 2009 (Rules 2009) and 
Regulation 2.5, 2.11 and 3.23 of the PEMRA (Eligibility Criteria and 
Bidding Procedure for Direct to Home Distribution Service Licensing) 
Regulations 2016 (DTH Regulations 2016). The respondent also challenged 
Regulation 12(3) of the PEMRA (Radio Broadcasting Station Operations) 
Regulations 2012 (Regulations 2012). The learned High Court held, inter alia, 
that Rules 13(3) and (4) were ultra vires of the parent Act, i.e., Pakistan 
Electronic Media Regulatory Authority Ordinance 2002 (PEMRA Ordinance). 
The successful bidders for DTH licenses and PEMRA have challenged the 
impugned judgment. 
2. 
 
Mr. Aitzaz Ahsan, Sr. ASC appeared on behalf of MAG 
Entertainment (Pvt) Ltd., which participated in the bidding held by 
Civil Appeal No.701/2017 etc. 
-: 3 :-
PEMRA on 23rd and 24th November 2016 for the DTH licenses and whose 
bid for Rs.4.91 billion was accepted. He argued that there are various 
producers of programmes who will in future sell their programmes to the 
DTH distributors and these distributors will beam these programmes 
directly to the subscribers/consumers via satellite which (programmes) will 
be received by the consumers by means of an antenna dish installed in 
their homes. According to him the basic question arising in these appeals 
is whether the producers/broadcasters of these programmes can also be 
given the rights for distribution. According to the learned counsel the 
broadcasters/producers (which he states are interchangeable terms) were excluded 
from bidding for the DTH licenses by PEMRA. He states that the decision 
of the learned High Court is incorrect because it has been held that 
Section 23(2) of the PEMRA Ordinance does not contain anything to 
prevent the participation of the broadcasters/producers from bidding for 
DTH licenses. He states that on the contrary Section 23(2) ibid allows 
PEMRA to promote the objectives of the PEMRA Ordinance as set out in 
its preamble to, inter alia, “enlarge the choice available to the people of Pakistan” 
by means of excluding broadcasters/producers from bidding for DTH 
licenses in order to prevent undue concentration of media ownership. He 
argued that while allowing broadcasters/producers to obtain DTH 
distribution licenses may not create a monopoly, it would certainly create 
a media enterprise which would be able to use its dominant position to 
the disadvantage of its competitors. He contended that on 01.06.2016 
PEMRA initiated the process for the grant of DTH licenses and 
promulgated the DTH Regulations 2016. Later these were amended on 
20.08.2016 vide SRO No.774(I)/2016. He compared the original and the 
amended Regulation 2.5 read with Regulation 3.23 of the DTH 
Regulations 2016 to show how PEMRA excluded producers/broadcasters 
Civil Appeal No.701/2017 etc. 
-: 4 :-
from participating in the bidding for DTH licenses. He referred to 
paragraph nine of Writ Petition No.25317/2016 to demonstrate the 
grounds on which the respondent had challenged the DTH Regulations 
2016 and the Rules 2009. 
3. 
 
Mr. Salman Raja, ASC appeared on behalf of PEMRA and 
stated that the learned High Court has misinterpreted the proviso of 
Section 23 of the PEMRA Ordinance and read it (proviso) to create a right 
in favour of every media enterprise to participate in the bidding for DTH 
licenses. He stated that whilst anti-competitive behavior is generally 
prohibited the media sector is unique because there must be plurality 
and diversity of voice in society. According to him there are three tiers of 
media: the production houses, broadcasters and distributors. According 
to him the learned High Court failed to see that exclusion of the 
dominant is often necessary to create diversity and that no ‘right’ exists 
in favour of broadcasters to participate in bidding for DTH licenses. He 
stated that the three successful bidders have participated in an open and 
transparent bidding process which was allowed by this Court by way of 
interim relief during the pendency of the instant litigation before the 
learned High Court.1 The bidding process was in fact televised and three 
successful bidders each offered close to Rs.5.00 billion each and that any 
new bidding process would not garner such high bids as the distribution 
technology has now advanced beyond DTH. He stated that “undue 
concentration” has to be defined ex-ante. To determine “undue 
concentration” ex-post would be difficult and would paralyze the system. 
                                       
1 C.M.A. No.7794/2016 came up before this Court on 23.11.2016 and the following direction was made, 
“…the bidding process, already fixed for today, may be held and take place at the same time and venue 
already fixed. It is, however, made clear that no final award of bidding or contract would be made by the 
petitioner. Furthermore, it is also observed that no right or interest shall be created or claimed by any 
bidder who may participate in the bidding process. It is expected that the learned Bench of the High Court, 
seized with the matter, may proceed to finalize the same at the earliest. Any process undertaking in 
pursuant to the order of this Court shall be subject to the final determination by the learned Bench of the 
High Court.” 
Civil Appeal No.701/2017 etc. 
-: 5 :-
He contended that there is no violation of Article 19 of the Constitution of 
the Islamic Republic of Pakistan, 1973 (the Constitution) as this is not a 
matter of restricting any person’s freedom of expression.  
4. 
 
Mr. Wasim Sajjad, Sr. ASC appeared on behalf of Startimes 
Communications (Pvt) Ltd., another successful bidder, and contended 
that the preamble of the PEMRA Ordinance states that one of the 
objectives of PEMRA is to enlarge the choice and to do so diverse sources 
are needed; if the same person is licensed for both broadcasting and 
distribution this purpose will not be achieved. He referred to Section 39 
(2)(e) of the PEMRA Ordinance to state that PEMRA has the power to 
define the circumstances constituting “undue concentration” of media 
ownership. He relied upon paragraph 17 of the judgment reported as 
Messrs S. M. Ilyas & Sons Ltd. Vs. Monopoly Control Authority (PLD 
1976 Lah 834) to argue that it is settled law that the legislature cannot 
classify the type of anti-competitive entity and it is, therefore, left to the 
regulator to classify the same. He also made reference to Article 38 of the 
Constitution. 
5. 
 
Mr. Feisal Naqvi, ASC appeared on behalf of Shehzad Sky 
(Pvt.) Ltd, another successful bidder and stated that the finding of the 
learned High Court that Rule 13 of the Rules 2009 is ultra vires of 
Section 23 of the PEMRA Ordinance is incorrect because the relevant 
section of the PEMRA Ordinance is not Section 23 but Section 39 which 
clearly confers on PEMRA the power to define “undue concentration” and 
prevent the same. He stated that the learned High Court read down 
Section 39 to fit the scope of Section 23 ibid and held that PEMRA was 
not justified in prohibiting the broadcasters from participating in the 
bidding for DTH licenses whereas it was a discretionary power to be 
exercised by PEMRA under the aegis of Section 39(2)(d) and (e) of the 
Civil Appeal No.701/2017 etc. 
-: 6 :-
PEMRA Ordinance. He relied on the case reported as Pakistan 
Broadcasters Association and others Vs. Pakistan Electronic Media 
Regulatory Authority and others (PLD 2016 SC 692) to argue that the 
licenses issued to the broadcasters contain a clause to the effect that 
they will abide by the Rules and Regulations of PEMRA and, therefore, 
they are estopped from challenging the same. Finally he stated that the 
respondent itself argued in its Writ Petition No.25317/2016 that the 
cable operators discriminated against the respondent. There are 3500 
cable operators in Pakistan and if they cannot be trusted not to 
discriminate then how is it possible to allow the respondent who already 
holds 5 broadcasters’ licenses to become even more powerful by grant of 
one of three DTH distribution licenses and trust it not to abuse its 
power? 
6. 
 
Learned counsel for the respondent(s) defended the order of 
the learned High Court. He argued that broadcasters are not barred 
under the Ordinance from applying for distribution licenses, rather this 
was so done through delegated legislation, and that under the Ordinance 
itself the respondent(s) is entitled to hold distribution and broadcasting 
licenses. In this regard he referred to Sections 25, 23(2) and 2(l) of the 
PEMRA Ordinance. He also referred to Section 39(d) and (e) of the 
Ordinance to argue that though PEMRA has the power to make rules, no 
rules have been framed that affect vertical integration, in that the 
circumstances that constitute “undue concentration” have not been 
defined. Learned counsel contended that the said rule-making power is 
beyond the object, intent and preamble of the Ordinance. In this regard 
he relied upon the preamble of the Ordinance and the judgment reported 
as 2013 parent statute ultra vires. According to him, the Rules 2009 can 
be struck down on the touchstone of Section 23 of the PEMRA 
Civil Appeal No.701/2017 etc. 
-: 7 :-
Ordinance. Finally, he stated that the language of “undue concentration” 
used in Section 23 of the PEMRA Ordinance implies that there is a 
certain amount of concentration that is permitted before it becomes 
“undue”.  
7. 
 
Heard. The primary questions before us are whether PEMRA 
has the authority and power to exclude the broadcasters from bidding for 
the DTH licenses and whether such authority has been conferred upon 
PEMRA under the PEMRA Ordinance 2002? If yes, what is the extent of 
that authority/power? 
8. 
 
The relevant provisions of law are reproduced below for ease 
of reference:- 
 
PEMRA Ordinance, 2002 
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. 
 
(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 fair competition 
and provision of level playing field. 
Civil Appeal No.701/2017 etc. 
-: 8 :-
 
39. Power to make rules.– (1) The Authority may, with the 
approval of the Government, by notification in the Official 
Gazette, make rules to carry out the purposes of this 
Ordinance. 
 
(2) 
…………………………………………………………….. 
(a) 
…………………………………………………………….. 
(b) 
…………………………………………………………….. 
(c) 
…………………………………………………………….. 
(d) 
…………………………………………………………….. 
(e) 
to define the circumstances constituting undue 
concentration of media ownership and abuse of powers and 
anti-competitive practices by media companies. 
 
PEMRA Rules, 2009 
13. Media ownership concentration and exclusion of 
monopolies.- (1) To ensure that fair competition is 
facilitated, media diversity and plurality are promoted in 
the society and undue concentration of media ownership is 
not created. Maximum number of licences that may be 
issued to a person or any of its directors or partners where 
such person is a company or firm, who is directly or 
indirectly, controlling, owning or operating more than one 
media enterprise, shall not exceed a total of four satellite 
TV, four FM Radio licences and two landing rights 
permissions. 
 
(2) 
…………………………………………………………….. 
 
(3) 
A licensee who owns, controls or operates directly 
or indirectly any other distribution service license shall not 
be granted a landing rights permission or broadcast media 
licence. 
 
(4) 
A licensee who owns, controls or operates directly 
or indirectly broadcast media license or landing rights 
Civil Appeal No.701/2017 etc. 
-: 9 :-
permission shall not be granted a distribution service 
licence. 
 
DTH Regulations, 2016 
2.11. The applicants must not already be a licensee who 
owns, controls or operates directly or indirectly any 
broadcast media licence or landing rights permission, in 
compliance with Rule 13 of the PEMRA Rules 2009. 
 
Section 23(2) of the PEMRA Ordinance 2002 enjoins upon PEMRA a duty 
to prevent monopolies in the field of broadcasting and distribution. 
According to the preamble to the PEMRA Ordinance it is the duty of the 
regulator to enlarge the choice available to the people of Pakistan. The 
prevention of monopolies is therefore necessary as meaningful choice is 
only possible in the presence of genuine competition. Vertical and 
horizontal integration in the field would both tend to restrict choice. This 
was considered by the Competition Commission of Pakistan (CCP) in The 
Matter Of Show Cause Notices Issued To Jamshoro Joint Venture 
Ltd 
(JJVL) 
& 
LPG 
Association 
Of 
Pakistan 
(LPGAP) 
(No. 
3/LPG/Dir(Inv)/M&TA/CCP/2009) which examined the issue of 
collusive pricing. CCP held that vertical integration would lead to an 
abuse of dominant position and facilitate collusive activity. It was 
observed as under:- 
 
179. Competition jurisprudence acknowledges that a single 
producer or supplier can accumulate market power by 
taking over distribution networks downstream in the 
market. This can either be done by entering into vertical 
agreements, or by vertical integration. An examination of 
JJVL‟s downstream operations reveals that it is engaged in 
both types of relationships downstream. It has vertically 
integrated distributors, Lub Gas and Mehran Gas; and it 
has also entered into vertical agreements with some 30 or 
Civil Appeal No.701/2017 etc. 
-: 10 :-
so LPG companies downstream. Hence the market 
structure and JJVL‟s dominance could possibly facilitate 
vertical collusion. 
 
Bansal2 explains that:- 
 
[A] broadcaster basically faces competition at three 
different levels namely, (i) at the content level to produce 
or procure TV content from third parties; (ii) access to 
distribution network e.g. DTH; and (iii) viewership i.e. 
number of TV channels and duration of content viewed by 
end consumers. For distribution companies as well, there 
exists serious competition to provide popular TV channels 
at reasonable subscription rates. They have to provide low 
carriage fee to the broadcasters and promise a robust 
distribution system and infrastructure that can perform 
seamlessly. Distributors also need to compete with 
companies operating on the same technology platform and 
also across different technology platforms. 
 
According to him in highly competitive markets broadcasting and 
distribution companies may vertically integrate which may have certain 
detrimental effects such as non-provision of TV channels, i.e., denial of 
access by the vertically integrated broadcaster to the competing 
distributors by refusing to provide its TV channel content. As a result the 
competing distributors lose market share and consumers face lack of 
distributor choices. Therefore, competition in the market is effectively 
reduced. Secondly, the vertically integrated distributor-broadcaster may 
raise entry barriers for other competing broadcasters by not carrying 
certain TV channels which would reduce their viewership, occasioning 
                                       
2 Aakshita Bansal, “Vertical Integration in TV Broadcasting And Distribution Sector In India: A 
Competition Audit” (July 2013), available at 
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwir04ij2MzcAhU
ryIUKHamGCqcQFjAAegQIAhAC&url=http%3A%2F%2Fwww.scoop.it%2Fdoc%2Fdownload%2F3gnG
53cXJJ_Kx2mnTcqcHkx&usg=AOvVaw2LlBLqaogw-6p__8eT-70-.  
Civil Appeal No.701/2017 etc. 
-: 11 :-
losses. Thirdly, a vertically integrated distributor may abuse its increased 
market power by arbitrarily disconnecting its channels from the local 
cable 
operators. 
Fourthly, 
the 
vertically 
integrated 
distributor-
broadcaster may charge rival broadcasters discriminatory placement and 
carriage fees. Finally, the vertically integrated distributor-broadcaster 
may abuse its market power by restricting the choice of channels for the 
consumers by tying in unwanted channels with popular offerings.  
9. 
 
The EC Guidelines3 on the assessment of non-horizontal 
mergers under the Council Regulation on the control of concentrations 
between undertakings look into both the non-coordinated and 
coordinated effects of vertical integration. When assessing the non-
coordinated effects, the guidelines prescribe a three-step process for the 
assessment of vertical mergers. First, whether the merged entity would 
have, post-merger, the ability to substantially foreclose access to inputs? 
Second, whether it would have the incentive to do so? This step evaluates 
whether a foreclosure strategy would be profitable considering only the 
static responses of rivals and consumers. Third, whether a foreclosure 
strategy would have a significant detrimental effect on competition 
downstream? Factors such as buyer power, likelihood of entry and the 
impact of efficiencies are examined to determine the long run impact of 
the merger on competition. Merely proving the existence of harm to 
competitors is not sufficient to deter a merger. Instead, it needs to be 
shown that there will be harm to competition. This can take the form of 
increased prices, reduced quality or reduced choices that are available to 
consumers. Mergers may change the nature of competition in such a way 
that firms who previously were not coordinating their behaviour, may be 
                                       
3 Guidelines On The Assessment Of Non-Horizontal Mergers Under The Council Regulation On The 
Control Of Concentrations Between Undertakings (2008/C 265/07), available at https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52008XC1018%2803%29. 
Civil Appeal No.701/2017 etc. 
-: 12 :-
more likely to coordinate and raise prices or otherwise harm effective 
competition. Therefore we are convinced that whilst vertical integration is 
not per se barred it is a cause for concern when it leads to loss of 
genuine competition. 
10. 
 
The learned High Court in the impugned order relied on the 
proviso to Section 23 of the PEMRA Ordinance to create a right in favour 
of every media enterprise to participate in the bidding for DTH licenses. 
This interpretation of the proviso is not correct. We are fortified in our 
view by the ratio of the following judgments. In the judgment reported as 
Ibrar Hussain and others Vs. Government of NWFP through 
Secretary, Board of Revenue and others (2001 SCMR 914), Irshad 
Hassan Khan, C.J., held that:- 
 
“5. It is well-settled principle of interpretation of statutes 
that it is to be read as a whole and not in bits and pieces. 
Generally three functions are ascribed to a proviso:-- 
(1) To exempt something from the enacting clause; 
(2) to qualify or restrain its generality; 
(3) and to exclude some possible misinterpretation of it as 
extending to cases not intended by the Legislature.” 
 
In Special Reference No. l of 1957 by the President of Pakistan 
under Article 162 of the Constitution of the Islamic Republic of 
Pakistan [PLD 1957 SC (Pak.) 219] this Court in its advisory 
jurisdiction dilated upon the functions of a proviso, as succinctly stated 
by Crawford at pages 128-129 of the 1940 Edition of “Statutory 
Construction” in the following terms:- 
 
“…A proviso, on the other hand, is a clause added to an 
enactment for the purpose of acting as a restraint upon, or 
as a qualification of the generality of the language which it 
Civil Appeal No.701/2017 etc. 
-: 13 :-
follows. Sometimes, however, as a precautionary measure, 
it is used to explain the general words of the Act and to 
exclude some ground of misinterpretation which would 
extend it to cases not intended to be brought within its 
operation or purview.” 
[Emphasis supplied] 
 
In the case reported as Sh. Liaquat Hussain and others Vs. Federation 
of Pakistan through Ministry of Law, Justice and Parliamentary 
Affairs, Islamabad and others (PLD 1999 SC 504) this Court observed 
that a proviso or an exception to the main enacting part is to be 
construed strictly. In Mst. Nawab Bibi and 3 others Vs. Ch. Allah Ditta 
and others (1998 SCMR 2381) it was held as under:- 
 
“It is settled law that proper function of a proviso is to 
accept and deal with a case which would otherwise fall 
within the general language of the main section, and its 
effect is confined to the rule or section to which a proviso 
has been added. The proper way to regard the proviso is as 
a limitation upon the effect of principal section or rule. A 
proviso, which is in fact and in substance a proviso, can 
only operate to deal with a case which, but for it, would 
have fallen within the ambit of the section to which the 
proviso is a proviso. To put it in another way the section 
deals with a particular field while proviso excepts or takes 
or carries out from the field a particular portion and 
therefore, it is perfectly true that before a proviso can have 
any application the section itself must apply.” 
  
In the case cited as Commissioner of Income Tax Vs. Nasir Ali and 
another (1999 SCMR 563), Saeeduzzaman Siddiqui J. opined that:- 
 
“4. It is a well-settled principle of interpretation that a 
proviso deals with the subject, which is covered by the 
enacting part of the provision. The proviso only carves out 
Civil Appeal No.701/2017 etc. 
-: 14 :-
an exception which, but for the proviso, would fall within 
the language and meaning of the enacting part. 
 
5. A proviso, therefore, has to be interpreted strictly, and 
where the language of main enacting part is clear and 
unambiguous, the proviso cannot by implication exclude 
from its purview what clearly falls within the express terms 
of the main enacting part. We would, therefore, first 
determine the scope and meaning of the main enacting part 
of section 3(4)(a) of the Ordinance in the light of the above 
stated legal position………… 
 
6. ……The enacting part of the section is not to be 
construed in the light of the proviso but it is the proviso 
which is to be interpreted in light of the main enacting part 
of the statute.” 
 
[Emphasis supplied] 
 
In the judgment reported as Messrs Shahi Bottlers Limited, Lahore Vs. 
The C.I.T., Central Zone, Lahore (1999 PTD Lah 3518) the learned 
High Court quoted the following extract from Craies, The Construction of 
Statute Law:- 
 
“The effect of an excepting or qualifying proviso, 
according to the ordinary rules of construction, is to except 
out of the preceding portion of the enactment, or to qualify 
something enacted therein, which but for the proviso would 
be within it; and such a proviso cannot be construed as 
enlarging the scope of an enactment when it can be fairly 
and properly construed without attributing it to that 
effect.” 
 
The Court then goes on to discuss the meaning of a proviso given in 
various judgments and observed as under:- 
 
Civil Appeal No.701/2017 etc. 
-: 15 :-
“11. From the foregoing examination, the following 
principles for the interpretation of proviso emerge; that 
proviso excepts and deals with a case which otherwise 
would have fallen within the language of main enactment; 
that for the purpose of its construction the whole of the Act 
is to be taken into consideration and a strict construction is 
to be accorded to proviso which should keep it within the 
ambit of substantive provisions.” 
 
In the judgment reported as Messrs East and West Steamship 
Company Vs. Pakistan and others [PLD 1958 Supreme Court (Pak.) 
41] it was held:- 
  
“…a proviso is to be regarded as something which excepts 
a particular case from a general principle. The effect of a 
proviso is to except something out of the preceding portion 
of the enactment or to qualify something enacted therein 
which but for the proviso would be within it. 
 
…the words of a proviso are to be construed strictly and 
confined to the special case which its words enact; it would 
be wrong to construe those words as being co-extensive 
with those used in the purview, particularly where the effect 
might be of bringing about a repeal of the purview.” 
 
[Emphasis supplied] 
 
11. 
 
In light of the settled law as reflected in the aforenoted 
judgments, the interpretation of the proviso to Section 23 of the PEMRA 
Ordinance by the learned High Court in the impugned judgment cannot 
be sustained. This Court has often adopted the purposive approach while 
interpreting statues. In the judgment reported as Dr. Raja Aamer Zaman 
Vs. Omar Ayub Khan and others (2015 SCMR 1303) it was held that:- 
 
Civil Appeal No.701/2017 etc. 
-: 16 :-
“…The Courts in Pakistan have always preferred a 
purposive rather than a literal interpretation of Statutory 
Instruments.”  
 
In the case cited as Federation of Pakistan through Ministry of 
Finance and others Vs. M/s Noori Trading Corporation (Private) 
Limited and 14 others (1992 SCMR 710) it was held:- 
 
“Even if the Schedule of the Act is given a subordinate 
position as was done in Premier Mills Ltd. v Commissioner 
of Income-tax (1985) 152 ITR 457, the legislative intent 
and the object of this specific legislation remains beyond 
doubt. Such intent and purpose must be given effect to and 
not thwarted on any vague and nebulous theoretical 
concept.” 
 
It is clear that Section 23 of the PEMRA Ordinance confers upon PEMRA 
a duty to ensure “that undue concentration of media ownership is not created in any 
city, town or area and the country as a whole.” “Undue concentration” is not 
defined in the PEMRA Ordinance. In fact, Section 39(e) of the PEMRA 
Ordinance allows PEMRA to frame rules with respect to defining “the 
circumstances constituting undue concentration of media ownership and abuse of powers 
and anti-competitive practices by media companies.” As the regulator, PEMRA is 
best placed to assess the “media market” in terms of the factors outlined 
in paragraphs 8 and 9 hereinabove and other relevant considerations. It 
is evident that having considered the relevant factors, PEMRA was of the 
view that vertical integration, which would come about as a result of the 
broadcasters being allowed to also hold distribution licences, would be 
detrimental to the public interest in that it would stifle choice which 
PEMRA is mandated to encourage. Therefore PEMRA framed and 
amended the PEMRA Rules 2009 to exclude such vertical integration by 
Civil Appeal No.701/2017 etc. 
-: 17 :-
means of Rule 13(4) whereby a broadcaster was barred from also holding 
a distribution licence. There is no violation of the respondent’s 
fundamental rights by so doing; Article 18 of the Constitution allows for 
the regulation of businesses. This regulation may be in the form of 
licenses which carry certain conditions to protect the public interest. In 
this particular matter the public interest is best served by ensuring that 
the “media market” is one where genuine competition prevails. We 
cannot make a fetish of the respondent’s purported fundamental right to 
compete for and acquire a distribution license in addition to its 
broadcasting license(s) at the expense of the broader public interest of 
genuine healthy competition and the resultant choice. In the 
circumstances, these appeals are allowed and the impugned judgment is 
set aside. 
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Islamabad, the 
8th of May, 2018 
Not Approved For Reporting 
Waqas Naseer 
