IN THE HIGH COURT OF SINDH, KARACHI
Crl. Rev. Application No. 07 of 2016
Mir Shakil-ur-Rehman………………………………………….……...Applicant
Versus
M/S Creek Developers (Pvt.) Ltd. and another.…..................…Respondent
---------------------------------------------
Crl. Rev. Application No. 96 of 2018
Wajahat
Saeed Khan.…………………………………………….…...Applicant
Versus
M/S Creek Developers (Pvt.) Ltd. Another…………..….........…Respondent
Dr.
Abdul Razzaq, advocate alongwith
Mr. Mahmood Ahmed, advocate & Mr. Aamir Qureshi, advocate for Applicant in Criminal Revision No. 07
of 2016
Mr.
Yawar Faruqui, advocate alongwith Mr. Asad Ali Riar, advocate for Applicant in Criminal Revision No. 96 of
2018
Mr.
Murtaza Wahab Siddiqui, advocate alongwith Mr. Jaffer Raza, advocate for
Respondent No. 1 in Criminal Revision No. 07 of 2016 & 96 of 2018
Syed
Zahoor Shah, DPG for State/respondent No.2
Dates of hearing: 15.08.2018 & 18.08.2018
Date of Judgment: _____________
J
U D G M E N T
FAHIM AHMED SIDDIQUI, J:- This single judgment will dispose of the aforementioned
Criminal Revision Applications filed by the applicants, as they consider
themselves aggrieved by one and the same Order dated 03-09-2014 passed by the
District Judge, Karachi South, in Private Complaint No. 746 of 2014. Through
the impugned order, the learned Judge has taken cognizance on a complaint filed
by the Respondent No. 1, as such a criminal case under Section 499, 500 &
501 PPC is initiated against the applicants and bailable
warrants were issued against them for their appearance before the Court.
2.
As per contents of instant criminal
revision applications, the matrix of the case is that the applicant in Criminal
Revision No. 07/2016 is a Non-Resident Pakistani Entrepreneur in the field of Journalism
and Electronic Media. He is Chief Executive of the Jang Group and Editor-in-Chief
of daily “The News” and daily “Jang” and some other newspapers. The applicant
in Criminal Revision No. 96/2018 is a Journalist working for the daily “Dunia News” and also engaged with other international media
groups. The respondent No. 1 is engaged in construction business and as a juristic
person, they filed a complaint through Mr Muhammad Yasin
as an authorised person. From the averments of the complaint, it appears that
Mr. Aqeel Karim Dhedi is connected with the said company in some capacity.
It happens that on 04-10-2013, an article was published in daily “News” under
the title “Who’s Watching the Watchdog?” authored by the applicant of criminal
revision No 96/2018. The Part-II of the said article was again published on
05-10-2013, which was also penned down by respondent No. 1 (Cr. Rev. 96/2018). The
translation of English article was also published in the daily “Jang” around
the same dates. Per applicants, some of the contents of those articles have
been picked up by the respondent No. 1 and have made the subject matter of a Private
Criminal Complaint bearing No. 746/2014 claiming that the same are to be
defamatory. The said criminal complaint was filed before the learned Sessions
Judge, Karachi South on 25-03-14 implicating the applicants as proposed accused
for offences punishable under Sections 499, 500 & 501 PPC with allegations
that the said articles were published on the behest of a close relative of
applicant Mir Shakeel-ur-Rehman namely Mr Jahangir
Siddiqui. After initial proceedings, the learned Sessions Judge took cognizance
through impugned order against the applicants, as such
the applicants have filed the instant criminal revisions.
3.
Per applicant (Cr. Rev. No.
96/2018), the applicants have also taken the point of view of
Mr. Aqeel Karim Dhedi and has also reported his contentions in the
article. According to the applicants of both the criminal revision
applications, it appears to them that the said complainant company has some
connection with Mr. Aqeel Karim
Dhedi due to which he became an arch rival of the
applicants (especially applicant Mir Shakeel-ur-Rehman)
and dedicated his substantial time and resources in damaging the reputation of
applicants by appearing in live TV programs. According to applicants, it is
common practice in the field of journalism that all the functional affairs of
news reporting are actually handled and managed by the Chief Reporters,
Editors, Executive Editors and the Publishers while the applicant Mir Shakeel-ur-Rehman, being the Editor-in-Chief, has a
symbolic role in respect of editing and publishing but the complainant company
(Respondent No. 1) attributed all the blame to the applicants instead of
concerned persons. According to applicants, the cognizance was not proper as
the learned trial Court did not consider this essential fact at the time of
taking cognizance. It was also not considered by the learned trial Court that
the person filing the complaint (Muhammad Yameen) is
not the aggrieved person besides authorisation is also not proper. The
applicants have also taken a ground that the ingredients of defamation for a
company are altogether different than to those required for a natural person.
It is also contended in the grounds taken by the applicant Mir Shakeel-ur-Rehman that if he had any ill intentions against
the complainant company, he would have broadcasted several news stories on Geo
TV to highlight wrongdoings of the complainant company. In the end, the
applicants prayed that since the complaint is false and frivolous and the
complainant company is a vexatious litigant; therefore, the proceedings of aforesaid
complaint may be quashed.
4.
The respondents filed their
objections in which they denied all the allegations levelled against the respondent
company. They specifically denied the contents of each paragraph. Regarding,
Mr. Aqeel Karim Dhedi, it was contended that he is a well reputed
businessman and not he but the applicants are engaged in causing harm to his
reputation. According to respondents, the complaint was properly filed with
proper format and authorisation. It is also contended by the respondents in
their objections that the learned Sessions Judge, Karachi South has rightly
taken cognizance in respect of the aforementioned complaint and there exists no
reason for its quashment.
5.
In support of the instant
criminal revision, Dr. Abdul Razzaq,
the learned counsel for the applicant Mir Shakeel-ur-Rehman,
has addressed at length. After reiterating the grounds taken in the instant
criminal revision, he submits that the cognizance was wrongly taken on account
of improper authorisation. Regarding extract of circular of authorisation, his
contention is that it does not contain the signatures of board members of complinanat company, as such it is neither a Power of
Attorney nor Authorization. He submits that the purpose for giving the
authority under the said circular is also missing. According to him, the
authority must speak about filing of the criminal complaint against the
applicants. He further submits that a company cannot file a defamation criminal
case in respect of financial loss. Regarding complaint by a company, his
contention is that the same cannot be filed without the ‘Article of
Association’ and ‘Certificate of Incorporation’. After referring Sections 173
& 196 of the Companies Ordinance, he submits that the ‘Directors of a
Company’ themselves have no power to initiate legal proceedings, as such the
complaint filed before the lower forum is not maintainable. According to him,
the circular of authority is an invalid document as per the provision of
Article 95 of Qanoon-e-Shahadat. He submits that if the complaint was filed by
the ‘Managing Director’ of the company himself then it might be a competent
complaint. He submits that the complaint is also not maintainable as the actual
party has not been impleaded. According to him, applicant Mir. Shakeel-ur-Rehman is a Non-Resident Pakistani and he is
only ‘Editor-in-Chief’ and not the ‘Publisher' as such he is not responsible
for the alleged defamatory article. He submits that editor and publisher are
the actual responsible persons but they were not chosen and only the
editor-in-chief is victimised. He submits that the trial Court has to associate
the editor, sub-editor and publisher as accused, which the trial Court can do
before taking cognizance but it was not done. According to him, the complaint
filed by the complainant company is also bad in the eyes of law because the
same was filed after a considerable delay. He submits that the complainant is
required to satisfy regarding the delay in which he remained fail as the
complaint does not speak anything about such delay. According to him, during
enquiry only representative was examined without any witness, as such cognizance
cannot be taken on the solitary statement of representative/complainant. He
also questions such statement, which according to him has no evidentiary value
as the same was recorded without ‘oath’. He submits that it is the settled law
that things should be done, as they required to be done under the law but
settled procedures were overlooked by the learned enquiry magistrate and trial
Court. He submits that the article was published in the public interest and as
per Section 5 of the Defamation Ordinance, it is not defamation if the truth is
published in public interest. He points out that regarding the same project for
which the news article was published, a civil suit has been filed before this
Court in which interim stay is operating against the complainant company, and
they are still not allowed to raise construction. Meaning thereby that whatever
published is not only true but the same is substantiated from the fact that
regarding the same project, suit is pending in which interim relief have been
granted to the plaintiff. He submits that by looking at the prayer clauses of
the suit pending against the complainant company, it becomes clear that they
cannot file the complaint against the applicants. During the course of
arguments, he refers two different paragraphs of Suit No. 1169/2013. He also
refers two different portions of the article and then submits that whatever is
mentioned pertains to and against an NGO namely Transparency International and
not against the complainant company or Mr. Aqeel Karim Dhedi. He submits that not
only the point of view of Mr. Aqeel Karim Dhedi but also the Chairman
of the complainant company was published, as such no
contempt was made from any corner.
6.
In support of his
contention, he takes reliance from a good number of reported judgments, which
are:
i)
Inayatullah
and 4 others v/s The State and another (1999 PCrLJ
731).
ii)
Anwar Alam Siddiqui v/s The State and another (2016 YLR 417).
iii)
Mst.
Najma Mansoor v/s Messrs
National Development Finance Corporation through Authorized Officer and 7
others. (2007 CLD 477).
iv)
Jagin and 2 others v/s
The State. (PLD 2001
Quetta 64).
v)
Khondkar Abu Taleb v/s The State and
another (PLD 1967 Supreme Court 32).
vi)
Abdul
Majid v/s Muhammad Mansoor
Ali and 14 others (1969 PCrLJ 692).
vii)
Habibullah v/s Soomar and others (1991 PCrLJ 279).
viii)
Qari Ghulam Mustafa v/s Muhammad Yunus and others (1996 MLD 604).
ix)
Rehmatullah and others v/s Saleh Khan and others (2007 SCMR 729).
x)
Muhammad
Tariq Khan v/s Khwaja Muhammad Jawad
Asami and others (2007 SCMR 818).
xi)
Muhammad
Safeer v/s The State and another (2004 PCrLJ 899).
xii)
Hakim
Ali v/s Muhammad Salim and another (1992 SCMR 46).
xiii)
In
the matter of: Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G
of 2010 (PLD 2010 Supreme Court 759).
xiv)
Bank
of Punjab and another v/s Haris Steel Industries
(Pvt) Ltd and another (PLD 2010 Supreme Court 1109).
xv)
Inayatullah v/s The State (2011 PCrLJ
1114).
xvi)
Ijaz Ahmed v/s Syriya Akhtar and
others (PLD 2011 Lahore 42).
xvii)
Abdul
Razzaq and 8 others v/s Shah Jehan
and 5 others (1995 SCMR 1489).
xviii)
Anwarul Haq v/s Federation of Pakistan
through Secretary, Establishment Devision, Islamabad
and 13 others (1995 SCMR 1505).
After
concluding his arguments, the learned counsel for the applicant Mir Shakeel-ur-Rehman seeks quashment
of criminal complaint pending before the trial Court.
7.
Mr. Yawar
Faruqui, advocate for applicant Wajahat
Saeed Khan (Cr.Rev.
96/2018) after adopting the arguments advanced by Dr.
Abdul Razzaq, prefers some additional submissions. He
argues that the applicant, appearing in Criminal Revision 96/2018, is a
renowned and worldwide well acknowledged investigative journalist. He submits
that he is the permanent resident of Lahore and on account of his professional
engagements, he needs to travel abroad frequently. According to him, the
purpose of lodging such type of complaint is actually restraining such a
renowned journalist to restrain him from his efforts of bringing grey areas of
our society before the public. According to him, the fact of filing suits
against the project cannot be denied. He submits that whatever written by the
author is very much available within the suits pending before this Court. He
submits that reporting something from a public document is not an offence. He
further submits that the complainant company has not come to the Court with
clean hands as they do not describe the litigation pending against them before
this Court. He submits that the case of the applicants covers under the
exception provided under Section 499 PPC. He also submits that by filing the
criminal complaint, actually a renowned journalist of the country is being
harassed and it is also settled law that if there is a criminal case regarding harassment
against the accused then the same should be put to at an end. According to him,
the freedom of expression and right to information is the constitutional rights
and the same cannot be subverted. He submits that if such practice continues then
it will not only discourage bold and courageous journalists of country but
there will also be a question mark regarding the freedom of press in Pakistan. He
relies upon:
i)
Khalid Nazir and others v/s The State
and others (2018 MLD 26).
ii)
Nawab Ferozuddin v/s The State and 5 others (2009 MLD 94).
iii)
Shamim
v/s The State and another (PLD 1966 Supreme Court 178).
iv)
Allah Wadhayo
v/s Wali Muhammad and 3 others (2001 PCrLJ 914).
8.
As against the above,
Barrister Murtaza Wahab,
appearing for the respondent company, submits that the criminal complaint was
rightly and properly filed and the same is free from any legal infirmity. He
points out that the applicants consider themselves above the law, which is
evident from the fact that they are not regularly appearing before the trial
Court. He submits that the learned counsel for the applicant has argued at
length regarding the factual aspect of the Case, which could not be done in a
revision application. According to him, the learned counsel was required to
address only the legal aspect of the case, as the facts can only be thrashed
out by the trial Court. He submits that the proceedings before this forum
cannot be a substitute of the trial and the trial court is the only forum where
the grain can be separated from chaff after recording evidence. He submits that
it is wrongly mentioned in the article published in the newspapers that the
land on which the project is being constructed is an amenity plot. He submits
that the relevant piece of land was never been an amenity plot, and this fact
is very much clear from the denial by DHA on oath. He further submits that the
trial court is a forum which enables the accused to answer the allegations. He
specifically quoted Section 11 of the Pakistan Penal Code (PPC) and submits
that as per the definition of ‘Person' given thereunder includes ‘company’
also. He also refers Section 44 of PPC and submits that the definition of
‘injury’ provided under this section includes ‘reputation’ also. He submits
that if certain facts are missing in the complaint, it would not make the same
incompetent and non-cognizable, since it is not necessary to include all the
facts in the complaint. He further submits that even then it will make no
difference as during enquiry, in the statement of complainant, the facts regarding
pending suits was mentioned. Regarding authorisation, his contention is that
the document referred by the learned counsel for the applicants is actually an
extract of a circular, which was placed before the trial Court and the original
of the document is available in the book maintained in the office of the
company. He also submits that Mr Yaseen Dhedi is actually one of the director of the company, as
such he himself is competent to file complaint even without any authorisation.
He submits that as per law, writer and publisher both may be included and are charged
as accused for the proceeding under Section 499, 500 & 501 PPC. He submits
that it is not a responsible journalism to level false allegations against
anyone including a company. He further submits that the reason to include Mr.
Mir Shakeel-ur-Rehman as one of the principal accused
is that he is the Editor-in-Chief of the daily News and the daily Jang and the
news articles were published in both the newspapers. He submits that the ill
design of the applicants is very much clear from the fact that the news articles
were published on consecutive dates. According to him, the same were published
in the daily News on 04-10-2013, 05-10-2013 and in the daily Jang on
06-10-2013. He further submits that in the said articles, they did not disclose
that DHA has already said that it was not an amenity plot. He further submits
that it is also incorrect that the construction is stopped, as the stay was
modified and now the company is allowed to raise construction but not to create
third-party interest. In support of his arguments, his reliance based on the
following case laws:
i)
Muhammad
Fiaz Khan v/s Ajmer Khan and another (2010 SCMR 105).
ii)
Malik
Muhammad Shoaib Bhutta v/s
Abdul Aziz Muhammad and another (2010 CLD 717).
iii)
Muharram
Ali and 3 others v/s Izzat Ali (2016 PCrLJ 601).
iv)
Lt.
Col. (Rtd) Najam Hameed v/s The State and another (2007 YLR 2126).
v)
Fayyaz Hussain v/s Akber Hussain and others (2004 SCMR 964).
vi)
Muhammad
Yousuf v/s Mst. Rashida
Begum and 2 others (2017 YLR Note 334).
vii)
Khyam Films and another v/s Bank of Bahawalpur Ltd. (1982 CLC
1275).
viii)
Silk
Bank Limited v/s Messrs Dewan Sugar Mills Limited (2011 CLD 436).
ix)
Allied
Bank Limited v/s Muslim Cotton Mills Limited and 3 others (2011 CLD 393).
x)
Mushtaq Ahmed and others v/s Muhammad Saeed and others (2004
SCMR 530).
xi)
Shaikh
Muhammad Rashid v/s Majid Nizami,
Editor-in-Chief, the Nation and Nawa-e-Waqat, Lahore (PLD 2002 Supreme Court 514).
xii)
S. Dawood Shah v/s S. Noor Shah and
another (1986 PCrLJ 1689).
xiii)
Ghulam
Mustafa and 9 others v/s The State (1999 YLR 1616).
xiv)
Muhammad
Farooq v/s Ahmed Nawaz Jagirani and others (PLD 2016
Supreme Court 55).
9.
Learned DPG has adopted the
arguments advanced by the learned counsel for the respondents.
10.
I have heard the arguments
advanced and have scanned the entire material placed before me in the light of
valued submissions made by either side. I would like to point out that the
counsels from either side during the course of arguments have relied upon teeming
numbers of case laws; amongst them several are similar in nature so that it
will not be advisable to discuss each and every of them to avoid repetition.
11.
Although, the learned
counsels for the applicants have discussed a lot regarding the factual aspects
of the case but I am of the view that presently the facts of case ought not to be
stressed so much, as in a criminal revision the legal aspects of the case are
required to be considered. Any opinion regarding the facts of the case can only
be given after a full-fledged trial, when material in shape of evidence is
available on the record. I am of the view that the factual aspects can better
be judged by the trial Court, after recording the evidence. I, therefore,
restrain myself to say anything regarding the facts of the case. Nevertheless,
in this matter, certain legal issues have been raised; therefore, it would be
appropriate that the same may be addressed carefully for proper appreciation of
legal facet of the case.
12.
Dr.
Abdul Razzaq, the learned counsel for the applicant
(Criminal Revision No. 07/2016) during the course of arguments has pointed out
that the paragraphs 9 and 10 of the complaint describe the defamatory material.
The memo of Private Complaint No. 746/2014 is annexed with the instant criminal
revisions as annexure ‘A’. Before entering into further discussion, I would
like to reproduce paragraph 9 and 10 (including underlines appearing in the
memo of complaint) as under:-
“9. That on 04-10-2013, a news publication
titled “Who’s watching the watchdog?” Authored by the Accused No. 1 was
published in the Newspaper, the content of which are prima facie false and
defamatory. Needless to mention that the said publication included many
defamatory statements against the Applicant Company and its shareholders. Some
of the defamatory statements are reproduced below:
‘No more than a couple weeks after BF-AKD
would sign the 10 July, agreement finalising Creek View and Terraces with DHA,
BF would sell 45 percent out of its 50 percent share to AKD, retaining a minor
share of 5 percent but, critically, ceding optional control of a mega real
estate development project that would house thousands of people to a company
that was criticised for having no experience in doing so.’
‘Thus,
the plot would thicken, and the port would start to stink. Rumours that AKD
had entered Karachi’s lucrative real estate establishment through the back door
by piggy-back riding on a major construction player with international roots to
land the deal, and then gained official control even before the ink was dry on
the deed, would only be compounded by a whole other front of questionable
business practices over the next years; Misleading advertising, unsafe
construction practices, and even wrongful use of land, would be some of the
allegations that would surround the project.’
‘Creek
Developers/AKD’s engaging Atkins, it was argued, was thus a breach of the
RFP-centric original proposal placed by the BF-AKD partnership to DHA in the
first place.’
‘This
key, operative part of the discrepancies related to the Arkadians
project would be based on allegedly compromised building practices as well as
the wrongful use of public amenity plots.’
But
if this rabbit hole of dark ethics related to the Arkadians
project went so deep, why didn’t Transparency International Pakistan, that
self-proclaimed crusader of anti-corruption, do what it had done to the
competition, Emaar and Meinhardt,
who were also building a stone’s throw away in the same neighbourhood, around
the same time? Why didn’t TIP read-flag the BF-AKD partnership (and eventually
AKD-owned) a scheme for alleged irregularities?”
‘Because there was a conflict of
interest.
And it potentially involved one of Pakistan’s richest men patronising one of its
most powerful watchdogs. Or maybe even the other way around.’
10. The said publication mentioned in the
aforementioned paragraph is clearly defamatory in nature and does not even have
an iota of truth in it. Simple perusal of the said publication will reflect the
mala-fide and vengeance of the Accused persons who is in turn acting on the
whims and wishes of Mr Jahangir Siddiqui
whose own companies are accused in a number of proceedings before this Hon’ble
Court as well as the Superior Courts.”
13.
According to Dr. Abdul Razzaq, the learned
counsel for the applicant (Cr. Rev. 07/2016), the complainant has mentioned the
derogating portion in the aforementioned paragraph, which according to him is
not derogatory or defamatory. As I have discussed above, the factual aspect of
the case can only be considered after recording of evidence. Presently, the
applicant has challenged the cognizance taken by the trial Court and at the
time of cognizance it is to be seen that whether prima facie, a case has been
made out or not. I am of the view that not only from the above material but also
after going through the entire complaint and looking at the solitary statement
of complainant recorded during enquiry, the trial Court has taken cognizance of
the case. By taking cognizance on the basis of solitary statement of
complainant, it cannot be said that the learned trial Court has unjustly and
illegally come to conclusion that prima facie sufficient material has come on
the record against the applicants, which is justify to initiate trial against applicant.
14.
Although, Dr. Abdul Razzaq during the
course of arguments accentuated that the applicant has not concerned with the
printed material as he is neither the editor nor the publisher of the same. He
also submits that the trial Court has not associated the editors and publishers
before taking cognizance, which could be done at that stage. In this respect,
his reliance was on the judgments reported as Inayatuallh
and 4 others (supra) and Anwar Alam Siddiqui (supra). In the case of Inaytullah
(supra), it is mentioned that the trial Court is competent to call/summon
any person and to join him as co‑accused during the trial. It is further
held that such power is to be exercised when there is sufficient material
before the Court connecting that person in the alleged offence and court has to
rely on the record of the proceedings of the trial or the material collected by
the Investigating Agency and not extraneous material which does not form part
of the record or of the investigation. The said case law mainly pertains to
police cases and not with the complaint cases. Besides, the learned counsel
could not point out on which extraneous material the trial Court has relied
upon while taking cognizance. The fact is that the trial Court in the impugned order
relied upon the news articles and the enquiry report of Magistrate and not
anything beyond the same. Similar is the case of Anwar Alam
(supra) which speaks about the powers of Magistrate to take cognizance even
in a negative report.
15.
According to learned counsel
for the applicant in Cr. Rev No. 07/ 2017, the criminal complaint is not
maintainable as editor and/or publisher has not been associated in the
complaint as proposed accused. However, in the same breath, he admits that the
applicant is the Editor-in-Chief but, according to him, in this capacity he is
having a symbolic role in respect of editing. It is pertinent to mention that
the word ‘Editor-in-Chief’ is alien to the law and the law recognises only the
word ‘editor’ or sub-editor in a newspaper. Under the law, it is necessary that
the name of editor should appear in the newspaper. It is a fact that the name
of applicant appears as ‘Executive Editor-in-Chief’ in the daily Jang. In this
respect, I would like to reproduce Section 5 of the Press, Newspaper, News
Agencies and Books Registration Ordinance, 2002 (hereinafter the Ordinance
2002) which reads as under:
“5. Publication of newspapers. –No newspaper shall be published except in
conformity with the provisions of this Ordinance and without prejudice to the
provisions of section 3; every copy of every such newspaper shall contain the
name of the owner and editor thereof printed clearly on such copy and also the
date of its publication. Similarly, no news agency shall disseminate or defuse
news except in conformity with the provisions of this Ordinance unless there subsists a declaration authenticated by the District
Co-ordination officer.”
From the above provision of law, it is clear
that every copy of a newspaper should contain the name of owner and editor; and
should be printed on the newspaper. Now we also look at Section 15 of the
Ordinance 2002, which is as under:
“15. Copy of declaration or
newspapers to be prima facie evidence.–In any legal proceeding,
whether civil, criminal
or otherwise, a copy of a declaration and a copy of the newspaper having
the name of a person
printed thereon as its editor shall be sufficient evidence, unless the
contrary is proved, as
against the person whose name has been subscribed in such declaration,
or printed on such
newspaper as the case may be that the said person was a printer or
publisher, or printer
and publisher (according as the words of the said declaration may be) of
every portion of every
newspaper whereof the title corresponds with the title of the newspaper
mentioned in the
declaration or the editor of every portion of that issue of the newspaper of
which a copy is
produced.”
It
is admitted that the applicant Mir Shakeel-ur-Rehman
is the Editor-in-Chief of the newspaper and only his name is printed as editor
in the bottom of the editorial page of the daily Jang. As I have already
discussed that the term ‘Editor-in-Chief’ is alien to law and the Ordinance
2002 has recognised only ‘Editor’ or ‘Sub- Editor’, and the name of the
applicant Mir Shakeel-ur-Rehman is not mentioned in
the newspaper as ‘CEO’ or Managing Director or Owner but the word ‘EDITOR’ with
some suffix and prefix is mentioned along with his name. Perhaps, by adding the
word ‘in-chief’ with the word editor indicates that he is ultimately
responsible for editing functions of all those newspapers. It is also worth
mentioning that the Ordinance 2002, itself provides that either a copy of
‘declaration’ or the copy of ‘newspaper’ mentioning the name of editor is a
sufficient proof regarding his editorship of the said newspaper. Since, the
copy of declaration of newspaper is not easily accessible to everyone;
therefore, the law has provided an alternate and efficient mode to recognise a
person as ‘editor’ by just looking at a printed copy of the newspaper. Hence, I
am of the view that the applicant Mr Mir Shakeel-ur-Rehman
is the putative editor of both the newspaper in which the alleged defamatory
remarks are published.
16.
Now come to the question of
delay, which was also raised by the learned counsel for the applicant in Cr.
Rev. 7/2016. While emphasising delay, he relied upon Mst.
Najma Mansoor (supra)
and Jagin and 2 others (supra). It is pertinent to mention that the case of Najma Mansoor (supra),
pertains to delay in filing a civil case and it is basically deals with
limitation in civil matters. As far as case of Jagin
and 2 others (supra) is concerned, in that case the effect of delay was
considered as a tool of appreciation of evidence recorded in a criminal trial,
which stage certainly comes after the conclusion of trial. No doubt, in
certain situations a delay, in moving the wheel of law in motion by a complainant,
is helpful for an accused but the same is to be considered at the end of trial
and not at the initial stage of a criminal case. Besides, the criminal law of
the country has not provided a limitation for filing a criminal complaint or
lodging an F.I.R. and it is settled legal position
that only delay cannot be considered as a plea for pre-trial acquittal or quashment of a criminal case. As far as the contention of
the learned counsel for the applicant that the alleged defamatory article
covers under the safeguards provided under Section 5 of the Defamation
Ordinance 2002. According to him, the said article was published in public
interest and as civil suits are pending; therefore, the same cannot be termed
as false. He submits that whatever mentioned in the article is the same which
has been mentioned by the plaintiff in the plaint of suit against the
complainant company. In this respect, I would like to say that it is a defence
plea, and the veracity of that plea can only be judged by trial Court after
recording evidence. As far as material taken from the plaint of a pending suit
is concerned, I am of the view that averments of the plaint of a pending suit
are not sufficient to give a finding with certainty unless there is a decree of
a court of law.
17.
The learned counsels for the
applicants have also assailed the cognizance of trial court on the ground that
the authorisation in favour of the representative of complainant company is not
proper. According to him, a company under such authorisation cannot initiate a
criminal case. The contention of the learned counsels for the applicants is
that a company cannot file a defamation suit in respect of financial loss.
However, Dr. Abdul Razzaq
admits that due to further development in law, now a criminal case on the
ground of defamation can be initiated by a company subject to condition that it
pertains to its goodwill only. The learned counsel for the respondent has drawn
attention towards the definition of ‘person’ given in Section 11 of PPC and
definition of ‘injury’ as mentioned in Section 44 of PPC. As per Section 11
PPC, the word “person” includes any Company or Association, or body of persons
whether incorporated or not. From the above definition, it is very much clear
that even non-incorporated Body or Association is authorised to initiate a
penal proceeding or vice versa. However, it is necessary that such a Body or
Association is clearly definable irrespective of the fact that the same is
incorporated and registered under any law or not. I am of the view that even if
a body or Association is well-known and definable, criminal law may be put in
motion by or against them. Similarly, as per the provision of Section 44 PPC,
the “injury” denotes any harm whatever illegally caused to any person, in body,
mind, reputation or property. In this respect, I would like to draw attention
towards the Explanation-2 given under Section 499 PPC, according to which it
may amount to defamation to make an imputation concerning a company or an
association or collection of persons as such. Now, I would like to add that
during the course of arguments, Dr. Abdul Razzaq admits that a company can initiate a criminal
proceeding for defamation subject to condition that it should not pertain to
financial loss but only in respect of loss or damage caused to ‘goodwill’ of
the company. Perhaps, by preferring such arguments, learned counsel for the
applicant (Cr. Rev. 7/2016) intends to put forth that no loss to ‘goodwill’ be
caused to a newly incorporated company. No doubt, in the instant matter,
financial loss is also involved but my opinion is that in the present case
financial loss is directly proportional to and because of the loss and damage
caused to ‘goodwill’. Besides, it will also make no difference that the company
is newly incorporated or not since the goodwill of a company not only evolves
during the course of business but also it depends upon the reputation and
competence of its directors and management.
18.
Dr.
Abdul Razzaq, learned counsel for applicant in Cr. Rev.
7/2006, has strongly contended that the ‘authorization’ given to the
representative of company is not proper and as per requirement of law. While
arguing regarding authorization, he relied upon teaming number of cases, amongst
them cases of Khan Iftikhar Hussain
Khan Mamdot (supra), Dr.
S. M. Rab (supra), Messrs Razo
(Pvt) Ltd (supra) and Walton Tobaco Company
Ltd (supra) are specifically emphasised. First of all, it is momentous to
point out that all the above-mentioned cases pertain to civil matters and not
in respect of any criminal complaint. Nevertheless, there is no cavil in it
that a corporeal person, who is capable of making a physical appearance, should
appear in the court himself to file a complaint. But if a complaint is made in
the name of an incorporeal person (e.g. a company or corporation), the
situation is different. A company is a legal entity and being a body corporate,
it does not have a soul, body, mind and limbs to walk into the Court for filing
a complaint. It is the demand of common sense and practical wisdom that in such
a situation even for a criminal complaint, the Court should allow a company to
present a criminal complaint in the Court represented by some corporeal or
natural person connected with the affairs of the company and having complete
knowledge about the issue or nature of the complaint. The person connected with
the affairs of the company, in the normal course of business, maybe either its
manager, partner, managing partner, director, managing director or any other
person authorised by the company. I am of the opinion that for moving the
criminal law in motion, rather than such an authority usually required for a
civil action in shape of 'power of attorney' or a 'resolution', it is more
important that the matter is reported by a person who is well aware with the
facts and if he is connected with the company in any of the aforesaid position,
even a formal authority is not necessary. However, if he does not have some key
position in the company, then an authority given to such person is sufficient
to file a criminal complaint on behalf of a company.
19.
As far as authorisation is
concerned, there is a document of authority given the representative person is
on the record. The relevant document is actually an extract of ‘circular’,
which was certainly taken from the book of company maintained in the office. The
person, who is authorized through the said circular, is also one of the
‘Director’ of the complainant company. At this juncture, I would like to say
that the instant is not a petition filed under companies’ law not it is
initiated under civil jurisdiction. A document is placed just to ascertain that
the company is in existence and authorised someone to file a criminal complaint
on its behalf. Besides, it is rational that the entire material is not required
to place before a criminal court for taking cognizance. As I have discussed
that even a non-incorporated body or Association may put the criminal law in
motion and for the same purpose it is not necessary that a proper authorisation
should be given but a person usually representing the body or Association is
competent to lodge F.I.R. or file complaint in a
cognizable or non-cognizable case. The circular indicates that a person, who is
director of company, is authorised to appear and represent the company, as such
the same is sufficient.
20.
The learned counsel for applicant in Cr. Rev. 07/2016 while arguing has
drawn attention towards the Suit No. 1169/2013 pending in this Court in its
original jurisdiction. He submits that
the material published is actually taken from the plaint of the said suit etc.,
as such the same is not false. According
to him the trial Court as well as the enquiry magistrate have not considered
this fact as such the material is not evaluated properly. According to him, it
is their duty to evaluate that the allegations, if any, are true and
the same have been published in public interest. By harping the same string, the
learned counsel for respondent Wajahat Saeed Khan says that if the allegations are true and the
same are made in the greater public interest, no offence is made out, as such
it falls under the first exception of Section 499 PPC. In this respect, the reliance is taken from a
case reported as Khondkar Abdu Taleb (supra). The learned counsel for the applicant
has taken support of the first exception mentioned under Section 499 PPC, which
reads as under:
“First Exception - Imputation of truth which
public good requires to be made or published: It is not defamation to
impute anything which is true concerning any person, if it be for the public
good that the imputation should be made or published. Whether or not it is for
the public good is a question of fact.”
According
to learned counsel for the applicant, the imputation published in the newspaper
is made in public interest and the same is truth because it has been adopted
from the plaint of a pending suit. It is worth mentioning that in the case of Khondkar Abu Taleb
(supra), the news published was that a Chief Editor of a newspaper was
replaced by another, since this fact was true; therefore, a decision in favour
of proposed accused was made. However, in the present case, it is contended by
the learned counsel for the applicant that the news is 'true' because the same
is based upon the facts mentioned in the plaint of a suit, which is still
pending adjudication. In this respect, instead of entering into further
discussion, I would like to reproduce the fifth exception under Section 499
PPC, which is as under:
“Fifth Exception - Merits of case decided in
Court or conduct of witnesses and other concerned: It is not defamation to express in good faith
any opinion whatever respecting the merits of any case, civil or criminal,
which has been decided by a Court of Justice, or respecting the conduct of any
person as a party, witness or agent, in any such case, or respecting the
character of such person, as far as his character appears in that conduct, and
not further.”
From
the above, it is clear that the applicants may claim exception only if the
aforementioned suit or any other pending litigation had been finally decided
and such imputation would also be limited to the character pertaining to the conduct
in that litigation. However, the law is clear that no exception is attached to
the pleadings of a pending litigation in respect of defamation.
21.
It is also the contention of
Dr. Abdul Razzaq that the
magistrate at the time of enquiry, has conducted grave illegality and irregularity, as he has not examined
the complainant on oath, which is a mandatory requirement under the law. In
response to a query, he submits that a statement without oath is not a
statement at all. He submits that the deviation from an explicit provision of
law is not allowed. Another objection raised by the learned counsel for the
applicant in Cr. Rev. 07/2016 is that at the time of enquiry, only complainant
was examined and no witness of the complainant bothered to come into the
witness box. He submits that in such a situation no corroboration was available
on the record, as such by taking cognizance on the sole deposition of complainant, the trial Court has done a grave illegality.
22.
As far as non-recording of
the statement of the representative of complainant company on oath during enquiry
is concerned, nothing on the record is available to support the contention of
the learned counsel for the applicant. However, it is a fact that the note,
usually put on the ‘deposition form’ regarding oath, is not available.
Nevertheless, it does not mean that the oath has not been admitted as it is a
usual practice by default in the courts of law to administer oath to a witness
before recording his evidence. Besides, it is a fact that as far as proceedings
before a court is concerned, sanctity and correctness of judicial procedure is
attached to it and the same cannot be questioned only on the ground of
presumption. In this respect, reliance may be taken from the case of Fayyaz Hussain (supra), in which the Hon’ble Supreme Court held as:
“There is always a presumption of correctness in
favour of judicial proceedings and credibility is attached to the proceedings
before a judicial forum. Strong and unimpeachable evidence is required to rebut
the presumption which is badly lacking in the case in hand.”
Even
if it is considered that 'the oath' was not administered upon the complainant
before recording his evidence during enquiry, it will make no difference. No
doubt, it is the requirement of law that ‘the oath’ should be administered to
every witness, who enters into the witness box of a court. Yet, the quality of
evidence, recorded without administering ‘oath,’ is not disturbed as provided
under Section 13 of the Oaths Act, which is being reproduced as under: -
"13. Proceeding and evidence not invalidated
by omission of oath or irregularity.-- No omission to take any oath or make any
affirmation, no substitution of any one for any other of them, and no
irregularity whatever, in the form in which any of them is administered, shall
invalidate any proceeding or render inadmissible any evidence whatever, in or
in respect of which such omission, substitution or irregularity took place, or
shall affect the obligation of a witness to state the truth."
From
the above legal provision, it becomes evident that if 'oath' is not
administered to a witness then the sacrosanctity and sanctity of evidence already
recorded will remain intact. I consider that after such an obvious provision of
law; there remains no need to add something in this respect but just to
ascertain that it is a settled legal position, I would like to take reliance
from case reported as Sajjad Ahmed v. The State (1992 SCMR 416),
wherein the Hon’ble Supreme Court held as:
"The objection that evidence of the P.Ws.
was not recorded by the learned trial Judge on oath is not such a fatal flaw
which may vitiate the whole trial and as such is repelled. The irregularity is
certainly curable under section 13 of the Oaths Act, 1873."
Thereafter
the same legal principle is followed by the Apex Court in the case reported as Muhammad
Aslam and others v. The State (1999 SCMR 845), and so on.
23.
As far as the contention raised regarding examining of only one witness i.e., representative
of the complainant during enquiry is concerned, I would like to say that it is
not necessary for the magistrate to examine all the witnesses produced at the
time of enquiry. Similarly, it is also not necessary for a complainant to
produce all the witnesses during enquiry. The purpose of enquiry it is to
persuade the magistrate to form an opinion regarding the credibility of
complaint and prima facie a case has been made out for taking cognizance. At
the time of examining a witness during enquiry, the enquiry magistrate may put
some question to clarify something and may examine any document annexed in the
complaint and referred by the witness during such examination but he is not
required to cross-examine a witness and evaluate the evidence in the way as a
trial court is used to do. The status of an enquiry magistrate is at a pedestal
higher than the investigation officer but he is not allowed to enter in the
domain of a trial Court while evaluating the record formed during enquiry.
Besides, it is also a fact that the report of enquiry magistrate may again be
evaluated by the trial Court at the time of framing of charge. The learned
counsel for the applicant during the course of his arguments has relied upon
the case of Abdul Majid (supra) in which also the similar view is taken.
24.
In the instant matter, trial
has yet not started and since after the trial Court has taken cognizance, the bailable warrants could not serve upon the applicants for
some time. Besides, after appearance of the applicants before the trial Court,
an interim order was obtained in the instant matters due to which trial could
not be initiated. Be that as it may, it is a fact that during enquiry, the
proposed accused are not entitled to appear and defend themselves. In a criminal
complaint, up to the stage of enquiry, it is the responsibility of the
complainant to establish that he has a prima facie case in his favour. However,
as soon as cognizance is taken, the accused persons have every right to appear
and defend themselves. Even before the framing of charge, they may approach to
the trial Court for their pre-mature or pre-trial acquittal by filing
application under Section 249-A or 265-K and if they are able to convince the
trial Court regarding their point of view, they may be acquitted without
bothering them to go through a full dressed trial. Since, the law has provided
a mechanism to accused, if they think that the case against them is groundless
and there is no probability of conviction in their case after trial; therefore,
it is necessary that they should exhaust that remedy first before approaching
the appellate forum. The power of this Court under Section 561-A CrPC is not
coextensive to the power of trial Court under Section 249-A or 265-K and the
same cannot be used as a routine in favour of any party after bypassing the
power and authority of a trial Court. In this respect the learned counsel for
the respondents has rightly taken reliance from the case of Muhammad Farooq (supra), wherein the
Hon’ble Supreme Court has observed as under:
“The remedy under Section 561-A, Cr.PC is not an alternate and or substitute for an express
remedy as provided under the law in terms of Sections 435 to 439, Cr.P.C. and or Sections 249-A or 265-K, Cr.PC,
as the case may be. One cannot be allowed to bypass and or circumvent the
ordinary remedy in normal course of the event. In the case of Maqbool Rehman v. State (2002
SCMR 1076) in paragraph 6 thereof, it was held that "normally, High Court
does not exercise inherent jurisdiction unless there is gross miscarriage of
Justice and interference by the High Court seems to be necessary to prevent
abuse of process of court or to secure the ends of justice. Jurisdiction under
section 561-A, Cr.P.C is neither alternative nor,
additional in its nature and is to be rarely invoked only to secure the ends of
justice so as to seek redress of grievance for which no other procedure is
available and that the provisions should not be used to obstruct or direct the
ordinary course of Criminal Procedure. This kind of jurisdiction is
extraordinary in nature and designed to do substantial justice. It is neither
akin to appellate nor the Revisional Jurisdiction."
In
the same judgment, the Hon’ble Supreme Court, has reproduced the guidelines
given in the earlier judgment of the Apex Court reported as Bashir Ahmed v/s
Zafar-ul-Islam (PLD 2004
Supreme Court 298) regarding use of inherent power by a High Court under
Section 561-A CrPC, which are given as:
"(i) The said
provision should never be understood to provide an additional or an alternate
remedy nor could the same be used to override the express provisions of law;
(ii) the said powers
can ordinarily be exercised only where no provision exists in the Code to cater
for a situation or where the Code offers no remedy for the redress of a
grievance;
(iii) inherent powers can be invoked to make a
departure from the normal course prescribed by law only and only in exceptional
cases of extraordinary nature and reasons must be offered to justify such a
deviation; and
(iv) in the matter of quashing criminal
proceeding, the trial must ordinarily be permitted to take its regular course
envisaged by law and the provision of section 561-A, Cr.PC
should be invoked only in exceptional cases for reasons to be recorded."
25.
The ultimate outcome of the above discussion is that the instant criminal
revision applications are not only meritless but the same are also not
maintainable before this Court, as such the same are dismissed. However, the
trial Court is directed to pace up the trial and conclude the same within a
shortest possible time preferably within three months.
J U D G E