2002 PLP 726 (MLD)

Learned Magistrate on receipt of the complaint passed the orders for recording the statement of the complainant under section' 200, After recording the statement of complainant learned trial Magistrate passed order of holding PE in the first instance. The complainant was accordingly directed to produce witnesses within 7 days. The witnesses namely Saleem, Muhammad Hanif and Muhammad Tufail appear to have recorded their statements on 1-11-1995, however, on 28-12-1995 following order was passed by the learned Magistrate:-- "Heard counsel for complainant and perused the record and statement of Muhammad Saleem, Muhammad Tufail and Muhammad Hanif including statement of complainant, which is fully supported by his witnesses in these circumstances statements of complainant are looking prima facie under sections 500 and 501, P.P.C. Therefore, there is order to issue B.Ws. against accused person, of amount of rupees 20,600 each. Hearing 16-1-1995. " I have heard Mr. Syed Madad Ali Shah, Advocate for the applicant and Mr. Muhammad Azeem Panhwar, Advocate for the State. Learned counsel for respondent No.1 did not turn up though the intimation notice was sent to him. It has been contended by Mr. Syed Madad Ali Shah, Advocate for the applicant that the contents of the material alleged to have caused imputation of the complainant has neither been incorporated in the complaint nor has been disclosed in the statement of the complainant recorded under section 200, Cr.P.C. It was further contended that though the complaint did not disclose the offence yet the cognizance was taken by learned Magistrate. The statements of the witnesses were also recorded in mechanical manner and probably by the clerk of the Court which were signed by the Magistrate as the substance of the statements of all the P.Ws. is almost the same. He further contends that no prima facie offence was made out and that the registration of the case was not warranted by the law. He, therefore, submits that since no offence has been constituted and the proceedings before the trial Court were patently illegal it was a fit case for exercising the inherent jurisdiction of this Court in order to secure the ends of justice and to prevent the abuse of process of law. Mr. Muhammad Azeem Panhwar, learned State Counsel after examining the record has confirmed the fact that no offence under sections 500/501, P.P.C. has been made out and the proceedings were vitiated. The perusal of the direct complaint reveals that the complainant/respondent was aggrieved of a news published against him in the newspaper namely `KHALAQ'. According to the definition of defamation as contained under section 499, P. P. C., whoever by words either spoken or intended to be read, or by signs 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. In all there are 10 exceptions which do not constitute defamation. I have perused the complaint filed by the complainant/ respondent No. 1 and his statement recorded under section 200, Cr.P.C. He has repeated the same story as mentioned in the complaint itself. The only addition which has been made in the statement is that the applicant No.1/accused Muhammad Ali Bhatti was publisher and the accused Farhan Nabi (since deceased) was Executive Editor of the daily 'KHALAQ'. The other addition which appears in the statement is that he has given the names of witnesses Muhammad Siddique Gill, Rasool Bux Chang, Fateh Muhammad, Muhammad Ali and Muhammad Tufail. The complainant did not mention a single word either in the complaint or in his statement as to what story was published which has defamed him and caused imputation to his reputation. The complainant has not produced the newspaper even either alongwith the complaint or with his statement recorded under section 200, Cr.P.C. he has stated that if such need arose he could produce the newspaper. The perusal of the statements of the witnesses Feroz, Azizullah and Haji Allahdad simply reveal that the news which was published in the newspaper daily 'KHALAQ' was defamatory and that the reputation of the complainant was impaired on account of publication of such news item. Strangely enough there is nothing in the evidence of the above P. Ws. to reveal as to what were the contents of the news which is alleged to have harmed the reputation of the complainant. In this way no material which is alleged to have caused imputation of the complainant or to constitute the offence of defamation was brought on record. I have minutely examined the statement of complainant recorded under section 200, Cr.P.C. as well as the statements of his witnesses, but I do not find a single word as to what was the material alleged to be defamatory. The perusal of the R&Ps shows that the statements of the P.Ws. consist of the same words which are almost repetition, merely alleging therein that the witnesses felt sorry after reading the news published in the newspaper daily 'KHALAQ' dated 26-10-1995. The scope of Chapter XVI of the Criminal Procedure Code is to make a distinction between baseless and substantial cases from the very beginning with the object of ensuring that no person shall be compelled to answer any criminal charge unless the Court is satisfied that there is a prima facie case for issuance of process, against him. It may be emphasized that the Magistrates while dealing with the private complaint should exercise due care and caution and should refrain from automatically issuing summons against the accused without carefully scrutinizing the complaint as to whether on the facts stated in the complaint any criminal offence is made out. The Magistrate before issuing process to the accused in private complaints are under statutory obligation as contemplated by section 202, Cr.P.C. to satisfy themselves for the purpose of ascertaining the truth or falsehood of the complaint, so as to protect the public against false, frivolous or vexatious complaint brought against them in Criminal Courts. As observed in the preceding paras. it is abundantly clear that the learned Magistrate in this case failed to apply his mind before issuance of process against the applicant as the publication of imputation was necessary ingredient of defamation which is absolutely missing in this case and 'that no material was available before the learned Magistrate. This Court possesses inherent powers under section 561-A, Cr.P.C. It is settled law that the above provisions are not meant for the purpose of thwarting the criminal proceedings pending in the lower Courts, and ordinarily the High Court does not interfere at intermediate stage of criminal proceedings in a subordinate Court. However, in certain cases in which apparently a miscarriage of justice has occurred and there is no probability of any kind of conviction and that apparently the continuation of the proceedings amount to abuse of process of law, this Court in order to prevent the abuse of process of law must interfere and if the prosecution on the face of it is illegal the proceedings in such cases can be rightly quashed even though those may be at the initial stages without having recourse to the provisions of section 249-A, Cr.P.C. In the peculiar circumstances of the case in hand I feel than directing the applicant to approach the trial Court under section 249-A, Cr.P.C. in the first instance will be a futile and No purposeless rather painful exercise for no fault of the application. For the above reason. I am convinced that no case is made our against the accused/applicant and if the case is allowed to proceed would be mock trial. I, therefore, accept this application, set aside the order dated 28-12-1995 and quash the proceedings in Criminal Complain No.18 of 1995 (re: Professor Muhammad Aslam v. Muhammad Ali and another) pending in the Court of Civil Judge & F.C.M. Sanghar. This criminal miscellaneous application was allowed by short order dated 23-8-2001 and these are the reasons for the same. H.B.T./M-288/K Proceedings quashed