PLJ 2010 Cr.C. (
[
Present:
Sagheer Ahmad Qadri, J.
Malik MUHAMMAD SHOAIB BHUTTA, EDITOR DAILY TULOU,
versus
ABDUL
AZIZ MOHMAND and another--Respondents
Crl. Rev. No. 30 of 2010, decided on 25.3.2010.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
4(h)--Word and Phrases--"Complaint"--In normal course a complaint may
be filed by any person bringing into the notice of a concerned magistrate or a
Court for initiation of an action against some person who allegedly committed
an offence. [P. 568] A
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
11--"Person"--Word and phrases--Person means not only an individual
but it includes a company, an association or body of persons whether incorporated
or otherwise. [P. 569] C
----S.
499--"Defamation"--Word and phrases--While committing the offence of
defamation an accused actually causes an injury to the reputation of a person
as he intends to lower down the status of a person in the estimation of his
fellow being or within the circle in which said person moves or enjoys a good
reputation--In a way damage is caused to the property of a person. [P. 569] D & E
AIR (99) 1952
----S.
44--"Injury"--Word and phrases--The word "injury" denotes
any harm whatever illegally caused to person, in body, mind, reputation or
property. [P. 569] F
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss.
435/439 r/w 561-A--265-K--198--Criminal Revision--Quashment
of proceedings--Publishing highly defamatory, scandalous, derogatory, false,
baseless, untrue and concocted news items/ material with mala
fide intention to harm, defame, demoralize and lower down the credibility of
other party--U/S. 198 Cr.P.C. in such like cases for
the present controversy in prosecution of an offence of defamation the
complaint must have been filed by an aggrieved person before a magistrate or a
Court of competent jurisdiction--A person includes not only an individual but a
body or association, a company and an offence of defamation can also be
committed against such person/jurisdic person or body
of a person collectively--In this case if contents of the complaint and the
cursory statement recorded by trial Court were seen it has specifically in so
many words was agitated by respondent/complainant that due to imputation/
defamatory material published by petitioner/accused not only Jang Group of
Newspapers/companies suffered loss to the reputation the complainant/respondent
in his physical capacity was also defamed--Respondent/complainant was able to
make out prima facie case showing him as an aggrieved person as defined u/S.
198 Cr.P.C. the complainant was found liable to be
quashed is not applicable on the facts and circumstances of the present
case--Held: U/S. 198-A, a public servant if in his official capacity is defamed
then he has to file a complaint through public prosecutor as well as with the
previous sanction of the concerned Government--Petition dismissed.
[Pp. 569, 570 & 571] B, G, H, I,
& J
PLD 2001 Lah. 98, AIR 1934 Sindh 188, AIR 1928
Mr.
Muhammad Arshad Tabrez,
Advocate for Petitioner.
Mr.
Amjad Afsar Ghakhar, Advocate for Respondent No. 1.
Date
of hearing: 19.3.2010.
Order
Respondent
No. 1 Abdul Aziz Mohmand
S/o Abdul Hakim, Editor, Editional Management &
Resident Manager, Jang Group of Newspapers filed a private complaint under
sections 499/500/501/502/ 502-A PPC against the present petitioner Malik Muhammad Shoaib Bhutta, Editor Daily "Tulou",
Islamabad mentioning that the petitioner-accused being Editor and Publisher of
Daily "Tulou", Islamabad started a
vilification campaign against Jang Group of Newspapers, its CEO and GEO
Television Network while publishing highly defamatory, scandalous, derogatory,
false, baseless, untrue and concocted news items/material with mala fide intention to harm, defame, demoralize and lower
down the credibility of the Jang Group of Newspapers and its GEO. Details of
the alleged defamatory material published by the petitioner-accused was
mentioned in the complaint in its different Paragraphs and prayed that action
accordingly be initiated.
2. This private complaint was entrusted to the
Court of learned Additional Sessions Judge, Islamabad who recorded cursory
evidence led by Respondent No. 1-complainant and vide order dated 12.11.2009
summoned the petitioner-accused under sections 499/500/501/502/502-A PPC to
face the trial. The petitioner subsequently appeared before the learned trial
Court submitted his bail bonds and on 7.1.2009 submitted an application without
mentioning any provision of law, however, from the contents of the application
it seems that it was filed under Section 265-K Cr.P.C.
The contents of the application are hereby reproduced as under:--
"1. That the above captioned complaint is
pending adjudication before this
2. That the captioned complaint does not
fulfill the requisites of Section 198 of Cr.P.C. as
such the same is liable to straight away dismissal.
3. That further to the above objection,
the question whether substance complained against is defamatory or not is sub judice in a competent jurisdiction, where the cognizance
has been taken. On the referred score also, the captioned complaint is liable
to dismissal.
In
the circumstances, it is humbly prayed that the above captioned complaint may
kindly be dismissed."
3. The learned trial Court after hearing the parties
vide impugned order dated 27.1.2010 dismissed the application of the
petitioner. Feeling aggrieved the petitioner-accused has preferred this
criminal revision with a prayer that the impugned order be set aside and
proceedings before the learned trial Court be quashed.
4. Learned counsel for the petitioner argued
that under Section 198 of Criminal Procedure Code, 1898, it is specifically
provided that no Court shall take cognizance of an offence falling under
Chapter (XIX) and (XXI) of the P.P.C except on the complaint lodged by an
aggrieved person. It was mainly argued that the Complainant-Respondent No. 1
was not an aggrieved person and if at all any material was published by the
petitioner it was allegedly against Mir Shakeel-ur-Rehman,
Chief Executive of Jang Group of Newspapers and allied Companies like GEO
Television, etc.; that Respondent No. 1-complainant in no way thus becomes an
aggrieved person which is requirement under Section 198 Cr.P.C.
for filing any such complaint for initiation of action for commission of an
offence defined as defamation under the Pakistan Penal Code. It was argued that
the learned trial Court did not advert to this aspect and only on the ground
that civil as well as criminal proceedings can proceed
side by side dismissed the application moved by the petitioner. Prayed that
Respondent No. 1-complainant being not a aggrieved
person, therefore, impugned order passed by the learned trial Court is illegal
as the complaint was not maintainable in the circumstances. Reliance has been
placed on the judgment cited as Aslam Akbar Kazi and 3 others Vs. Gulzar Ahmad Channa and another
(2003 P.Cr.LJ 1892).
5. On the other hand, learned counsel for
Respondent No. 1-complainant has vehemently opposed the arguments advanced by
the learned counsel for the petitioner on the grounds that as defamatory
material was published by the petitioner-accused basically against Jang Group
of Newspapers its CEO and CEO Television and the Complainant-Respondent No. 1
being Editor and Editional Management and Resident
Manager Jang Group of Newspapers, therefore, defamatory material published by
the petitioner-accused directly or indirectly effects him as well as Jang Group
of Newspapers, etc.; that the Respondent No. 1-complainant in the circumstances
is an aggrieved person as defined under Section 198 Cr.P.C.
Learned counsel further argued that even otherwise revision petition in the
circumstances when charge is yet to be framed and the learned trial Court is to
proceed on merits is not maintainable. Prayed that the
impugned order was perfectly justified. While relying on Muhammad
Abdullah Vs The State (2000 P.Cr.L.J 576), Bashir Ahmad Vs Zafar ul Islam and others (PLD 2004 SC 298), Imdad
and 3 others Vs The State and 2 others (2006 P.Cr.L.J
1243), SHEVO Vs Regional Police Officer, Hyderabad Region, Hyderabad and 15
others (PLD 2009 Karachi 24) prayed that this revision petition be dismissed.
6. I have heard the learned counsel for the
parties and perused the record.
7. Respondent No. 1 being the Resident Manager
of Jang Group of Newspapers filed the above mentioned complaint under Sections
499/500/501/502/502-A PPC mentioning the facts that the material published by
the petitioner-accused in his newspaper Daily "Tulou",
Islamabad tentamounts to defamation of Jang Group of
Newspapers, Companies, GEO News Channel as well as its CEO. The main contention
raised by the learned counsel for the petitioner-accused in the application
moved before the learned trial Court was that as respondent-complainant was not
an aggrieved person as defined in Section 198 Cr.P.C.
therefore, the complaint was not maintainable.
8. In order to appreciate the arguments it is
appropriate to reproduce the relevant provision of law i.e. Section 198 Cr.P.C.
"198.
Prosecution for breach of contract, defamation and offences against
marriage.--No Court shall take cognizance of an offence falling under Chapter
XIX or Chapter XXI of the Pakistan Penal Code or under sections 493 to 496
(both inclusive) of the same Code, except upon a complaint made by some person
aggrieved by such offence."
9. The word `complaint' has also been defined
under Section 4(h) of the Criminal Procedure Code which reads as under :--
"4(h) "Complaint"---Complaint
means the allegation made orally or in writing to a Magistrate, with a view to
his taking action under this Code, that some person whether known or unknown,
has committed an offence, but it does not include the report of a police
officer."
10. In normal course a complaint may be filed by
any person bringing into the notice of a concerned Magistrate or a Court for
initiation of an action against some person who allegedly committed an offence.
Sections 195 to 199-B of Criminal Procedure Code, however,
provides an exception to the general rule. Here in special circumstances
certain embargos/pre-conditions are imposed before
initiation of complaint against public servants or by the public servants as
well as in cases of defamation and marriages, etc. Under Section 198 Cr.P.C. it has specifically been provided as above
mentioned that in such like cases and for the
present controversy in prosecution of an offence of defamation
the complaint must have been filed by an aggrieved person before a Magistrate
or a Court of competent jurisdiction. The words aggrieved persons are of much
significance used in Section 198 Cr.P.C. The word
person is defined in Section 11 of the PPC which is hereby reproduced:--
"Person". The word `person' includes any Company
or Association, or body of persons, whether incorporated or not."
11. If the above mentioned definition is seen
person means not only an individual but it includes a Company, an Association
or body of persons whether incorporated or otherwise. The juristic persons are
also termed as person falling under the above mentioned definition. If Section
499 PPC is seen whereby the offence of defamation is defined it says:--
"499. Defamation. Whoever by words either spoken or
intended to be read or by sign or by visible representations, makes, or
publishes any imputation concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm the reputation of such
person is said, except in the cases hereinafter excepted, to defame that
person."
12. The word person is also used by the legislature
while defining the offence of defamation as reproduced above. In a judgment
cited as Municipal Board, Konch Vs Ganesh Prasad Chaturvedi (A.I.R
(99) 1952 Allahabad 114) while deciding with the same
proposition it was held
"4. Having regard to the provisions of Section
499, read with Explanation 2 and the definition of the word 'person' in S. 11,
Penal Code, it cannot be said that a complaint for defamation is not
maintainable at all by a corporation. But certainly the scope of such a
complaint by a corporation is not the same as that by individuals. The
Municipal Board per se has hardly a reputation. If the management is good it
will be said that the Board is being run efficiently. But if the management is
bad there is bound to be accusation of inefficiency and nepotism, etc. If a
person makes any imputation so as to cause any special injury to the property
of the board then the board can maintain a complaint under S. 500..."
13. While committing the offence of defamation an
accused actually causes an injury to the reputation of a person as he intends
to lower down the status of a person in the estimation of his fellow being or
within the circle in which said person moves or enjoys a good reputation. In a
way damage is caused to the property of a person. The word injury is defined
under Section 44 PPC which says--
"44.
The word "injury" denotes any harm whatever illegally caused to
person, in body, mind, reputation or property."
14. From the above discussion I feel it is clear
that a person includes not only an individual but a body or association, a
company and an offence of defamation can also be committed against such person/jurisdic person or body of a persons
collectively.
15. Now the second important aspect i.e. the
person aggrieved is to be defined and discussed who according to the provision
of Section 198 Cr.P.C. can lodge a complaint in cases
of defamation. The word aggrieved has not been defined in Pakistan Penal Code.
Its literal dictionary meaning if seen the aggrieved person and aggrieved party
has been defined in Black's Law Dictionary in its 5th Edition one whose legal
right is invaded by an act complained of.
16. In order to consider if a person is aggrieved
of an imputation leveled against, facts and circumstances of each case is to be
looked into. In a case cited as Shabana Mustafa vs Dr. Muhammad Khalid and others
(PLD 2001 Lahore 98) the Hon'ble Single Bench of this
Court in a case of defamation against a lady held:--
"Where
an imputation is made regarding moral character or a female who is living in
the shelter of her father, brother or husband, a complaint can be brought
undoubtedly by such male person, because in that eventually the male kith and
kin in whose abode she is residing is also indirectly affected by such imputation."
17. In another judgment cited as Hosseinbhoy Ismailji Vs Emperior (AIR 1934 Sind 188) it
was held--
"Criminal
P.C. (1898), S. 198--"Aggrieved"--Whether person is aggrieved should
be determined with reference to nature of accusation--Person should have directly
or indirectly suffered in his own reputation."
18. Similar view has also been taken in another
judgment cited as Surajmal Vs Ramnath
(AIR 1928 Nagpur 58) wherein it was held:
"Whether
complainant is person "aggrieved" must be decided on facts of each
case--Adopted son is a person aggrieved by the defamation of his adoptive
mother."
19. Herein this case if the contents of the
complaint and the cursory statement recorded by the learned trial Court are
seen it has specifically in so many words was agitated by Respondent No.
1-complainant that due to imputation/defamatory material published by the
petitioner-accused not only Jang Group of Newspapers/Companies suffered loss to
the reputation the Complainant-Respondent No.
20. At another place during statement before the
learned trial Court the Complainant-Respondent No. 1 further stated as under:--
21. In the light of above discussion and law as
discussed above, if the facts and circumstances of the present case are seen
the Respondent No. 1-complainant was able to make out prima facie case showing
him as an aggrieved person as defined under Section 198 Cr.P.C.
entitled to initiate the complaint for the commission of alleged offences of
defamation against the petitioner-accused.
22. The judgment cited as Aslam
Akbar Kazi and 3 others Vs Gulzar Ahmad Channa and another
(2003 P.Cr.L.J 1892) by the learned counsel for the
petitioner whereby while discussing the provision of Section 198-A Cr.P.C. the complaint was found liable to be quashed is not
applicable on the facts and circumstances of the present case. Under Section
198-A Cr.P.C. a public servant if in his official capacity
is defamed then he has to file a complaint through public prosecutor as well as
with the previous sanction of the concerned Government.
23. In the circumstances, the impugned order
passed by the learned trial Court does not call for interference by this Court
while exercising its revisional jurisdiction. This
petition merits dismissal which is hereby dismissed.
(A.S.) Petition
dismissed.