ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Justice Mrs. Rashida Asad

H.C.A. No.314 of 2022

_____________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.3015/2022 (Urgent).

2. For order on office objection a/w reply as at ‘A’.

3. For order on CMA No.3016/2022 (Exemption).

4. For hearing of main case.

5. For order on CMA No.3017/2022 (Stay).

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Dated; 21^st September 2022

Mr. Kashif Hanif, Advocate for Appellant alongwith Mr. Sarmad Ali, Advocate and Faquir Liaquat Ali, Director Legal, PEMRA.

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1. Urgency granted.

2. Learned counsel for the appellant undertakes to comply with office objection before next date of hearing.

3. Exemption granted subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against impugned order dated 05.09.2022 passed by the learned Single Judge of this Court in Suit No.-1457 of 2022 filed by the respondent No.1 against the appellant seeking declaration, mandatory and permanent injunction, whereby, according to learned counsel for the appellant, without hearing the appellant, ad-interim order has been passed and the show-cause notice dated 29.08.2022 issued by the appellant to the respondent No.1 has been suspended. It has been contended by the learned counsel for the appellant that similar show-cause notice was issued to the respondent No.1 on the same set of violations/allegations, which was assailed by the respondent No.1 by filing a Suit No.-1457 of 2022 challenging the legality of such show-cause mainly on the grounds that at the time of issuance of said show-cause notice, the authority was not properly constituted, as there was no Chairman. However, according to learned counsel for the appellant, now the Chairman PEMRA has been appointed, therefore, fresh show-cause notice has been issued after hearing the respondent No.1 as per Court’s order in the aforesaid suit. Per learned counsel, the Authority has decided to issue a fresh show-cause notice after due deliberations and in accordance with law, therefore, the learned Single Judge was not justified to suspend the operation of the show-cause notice without hearing the appellant. It has been contended by the learned counsel for the appellant that there is a bar for filing a suit against a show-cause notice under Section 38 of the said Ordinance, however, the appellant will be satisfied and will not press instant High Court Appeal; provided that the appellant may be allowed to proceed against the respondent No.1 pursuant to the impugned show-cause notice in accordance with law. It has been further contended by the learned counsel that the appellant is willing to withdraw earlier show-cause notice issued to the respondent No.1 in this regard.

Mr. Ayan Mustafa Memon, Advocate present in Court pursuant to a notice under Order 43 Rule 3 CPC, files vakalatnama on behalf of the respondent No.1 and requests for time to file reply/objections, however, raised objection as to maintainability of instant High Court Appeal, which according to learned counsel, is not maintainable for having been filed against an ad-interim order passed by the learned Single Judge. It has been contended by the learned counsel for respondent No.1 that the appellants are bent upon to close down the channel of the respondent No.1 and have issued several similar show-cause notices to the respondent No.1 with malafide intention on political considerations, whereas, subject show-cause notice has been issued to circumvent the restraining order already passed by the learned Single Judge as well as by the Divisional Bench of this Court, directing the appellant to restore the channel. It has been further contended by the learned counsel that inspite of orders passed by the learned Single Judge as well as by the Divisional Bench of this Court, ARY News channel was not restored, therefore, the respondent No.1 was constrained to file contempt application against the Chairman PEMRA and the matter is now fixed for hearing on 05.10.2022, when the subject suit has also been directed to be taken up alongwith previous suit, therefore, the appellant instead of filing instant High Court Appeal would have filed reply/objection to the injunction application seeking appropriate order for recalling or modifying the impugned order in accordance with law. Learned counsel for the respondent No.1 has placed on record an unreported order dated 16.09.2022 passed by the learned Islamabad High Court in W.P. No.3467/2022 in the case of ARY Communication Limited v. Federation of Pakistan, etc. through a statement.

Heard the learned counsel for the parties and perused the record of this case as well as impugned ad-interim order passed by the learned Single Judge, which reflects that while examining the peculiar facts of instant case and in view of earlier show-cause notice already issued on the same set of violation/allegation, the learned Single Judge while issuing notices to the defendants, has been pleased to make a tentative observation to the effect that second show-cause notice on the same set of violation/allegation while referring to the Minutes of 173^rd Meeting of Authority held on 29.08.2022, “hardly appears to be a reason to issue a fresh show-cause notice and that too while previous one on the same issue is pending”. It further appears that multiple notices have been issued by the PEMRA on somehow same set of violations/allegations and the learned Single Judge is already seized of the matter while examining the legality of such notices. In view of above facts, it will be appropriate that the appellant may approach the learned Single Jude by filing reply to the injunction application or may file an application under Order XXXIX Rule 4 CPC seeking recalling or modification of the impugned ad-interim order passed by the learned Single Judge, who may pass appropriate order, after hearing the parties, in accordance with law, preferably, within a period of four weeks from the date of hearing the parties. Accordingly, instant High Court Appeal stands disposed of in the above terms alongwith listed application(s). It is, however, clarified that disposal of instant High Court Appeal in the above terms will have no bearing on the merits of the case and/or the injunction application, which may be decided on its own merits in accordance with law.

J U D G E

*Farhan/PS*