P L D 1966 (W (PLP)

Date of hearing : 30th August 1965. This Criminal Revision Application is directed against the order of Mr. Hamza Khan M. Qureshi, Additional Sessions Judge, Tharparkar at Sanghar, dated 9th August 1964 allowing the opponent No. 2's Criminal Revision Application No. 41/63 and setting aside the previous discharge order dated 2‑5‑1964 of Mr. E114! Bux N. Lashari, Mukhtiarkar and F.C.M., Shahdadpur whereby the latter had dismissed the private complaint under section 500, P. P. C. filed by the respondent No. 2 against the present applicant.

2. I have heard Mr. Ahmad Saeed the leaned Advocate appearing on behalf of the applicant in this matter and Mr. A. R. Kazi appearing on behalf of the State. The opponent No. 2 Mr. Ghulam Mustafa as well as his Advocate Mr. Ramchand were called out more than once but neither was present. Nor had Mr. Ramchand Advocate sent any message to my Reader of his being engaged in some other Court and hence being unable to attend the hearing of this matter in my Court today.

3. The facts giving rise to this criminal revision application may, briefly, be summarised as under:‑ Applicant Ghulam Murtaza married his step‑daughter Mumtaz Bano to Irshad Ahmed son of opponent No. 2 Ghulam Mustafa on 31‑3‑1961. In October 1961 Mumtaz Bano wrote to her mother at Karachi that she was unhappy in her married life and her mother replied inviting her to come to Karachi. On 4‑I1‑1961 she was brought to Karachi by her husband Irshad Ahmad. She then complained to her parents of maltreatment at the hands of opponent No. 2 and the other members of his family. On 21th January 1962 the opponent No. 2 himself came to Karachi when Mst. Mumtaz Bano repeated her story of ill‑treatment to him and some others who were then present. On 27‑1‑1962 the applicant addressed a letter to the opponent No. 2 and his son Irshad Ahmad which letter was sent by Registered Post with Acknowledgement Due. According to the opponent No. 2 he received this letter at Shahdadpur while seated in the shop of one Dr. Abdul Rehman and soon thereafter he was called away leaving the letter behind. It was in his absence that Dr. Abdul Rehman and Abdul Qayoom out of curiosity read the contents of this letter.

4. On 22‑6‑1962 Mst. Mumtaz Bano addressed a letter to her husband Irshad Ahmed demanding her divorce from him on the grounds alleged in the letter dated 27‑1‑1962. Irshad Ahmad filed a suit against Mumtaz Bano for restitution of conjugal rights. In August 1962 Mst. Mumtaz Bano filed, a suit against Irshad Ahmed and his father opponent No. 2 for the dissolution of her marriage and recovery of her dower. Thereafter, on 13‑10‑1962 the opponent No. 2 filed the present complaint under section 500, P. P. C. against the applicant. This private complaint ended in the discharge of the applicant accused Ghulam Murtaza by the Mukhtiarkar and F. C. M. Shahdadpur by his order dated 2‑5‑1963. Against the order of discharge the opponent No. 2 preferred a revision petition which was heard by the Additional Sessions Judge, Tharparkar at Sanghar who allowed the petition and set aside the discharge order of the Mukhtiarkar and F. C. M. Shahdadpur. Hence the present criminal revision application in which the prayer is that the order of the learned Additional Sessions Judge be reversed and the original order of discharge be maintained.

5. Two main points of law have been urged by Mr. Ahmed Saeed in support of this petition. After referring to the unconscionable delay of ten months on the part of the complainant in filing this private complaint, Mr. Ahmed Saeed pointed out, firstly, that there was no publication as is required by law of the alleged defamatory letter by his client. The letter was addressed to the opponent No. 2 and his son Irshad Ahmed by registered post with acknowledgment due and, admittedly, it was received by the opponent No. 2 himself. Mr. Ahmed Saeed contended that the negligence on the part of opponent No. 2 in leaving this letter lying about so that inquisitive busy‑bodies could get at it and read it cannot expose the writer of such a letter to an allegation of having published the said letter. In support of this argument Mr. Ahmed Saeed relied upon the case of Qusen Empress v. Taki Hussain (IL R 7 All. 205) Mr. Ahmed Saeed next contended that the letter is not per se defamatory and that the finding of the learned A. S. I. that the contents of the letter could lead to a breach of the peace was not even alleged or urged by the complainant himself.

6. Mr. A. R. Kazi appearing on behalf of the State supported the contentions of the learned Advocate appearing on behalf of the applicant and argued against the impugned order of the learned Additional Sessions Judge. He agreed that there was no publication at all of the alleged defamatory letter and so far as the son Irshad Ahmed was concerned the allegations against him contained in that letter, he argued, were protected by Exception (8) to section 499 P. P. C. He further submitted that if there was any defamation of the son of the opponent No. 2 it was for him to file his own complaint and that he could not rely upon a complaint filed by his father because of section 198 Cr. P. C.

7. At the time of admitting this revision petition to a regular hearing I had then noted in my order of admission that the delay of ten months in filing this complaint is a circumstance requiring consideration and, secondly, that the question of publication required to be looked into. It seems to me now after having heard the arguments of the learned Advocates appearing in this matter that the delay of ten months on the part of opponent No. 2/complainant in filing this complaint would indicate that this complaint is in the nature of a counter‑blast to the suit filed by the daughter of the applicant/accused for divorce and return of her dower against opponent No. 2 and his son. If the opponent No. 2 was genuinely aggrieved by the contents of the letter in question he would not have waited for ten months before filing this private complaint.

8. I am also not satisfied that the applicant/accused can be held to have given publication to the alleged defamatory letter. It was held by the Full Bench in the case of Queen‑Empress v. Taki Husain that: "a libellous communication made only to the person whose character is attacked does not amount to defamation as defined in section 499, P. P. C. unless it can be proved that this publication to the prosecutor only was intended or calculated to provoke a breach of the peace." In the instant case it is plain, that whatever publication occurred was due to the curiosity and inquisitiveness of Dr. Abdul Rahman and his companion who helped themselves to the contents of this alleged defamatory letter.

9. On the second legal point as to whether the contents of this letter are or not per se defamatory it seems to me that this question assumed academic importance once it has been held that there has been no publication in this case. Publication is necessary ingredient to the offence of defamation and once it is found missing the offence cannot be complete. Hence, it becomes unnecessary now to enquire whether the letter is, in actual fact, defamatory of opponent No. 2 or of his son. So far as the son is concerned there is no complaint by him at all and, at the same time, the application of Exception (8) to section 499, P. P. C. to the facts of this case is also of material significance. So far as the opponent No. 2 himself is concerned, there is no allegation by him that the imputations contained in the letter in any way urged him to commit a breach of the peace. On the contrary, the facts show that he slept over this letter for ten months before filing this private complaint.

10. In the result, therefore, I agree with the contentions of the learned Advocate appearing on behalf of the applicant and the learned State Counsel that the impugned order of the learned Additional Sessions Judge cannot be sustained and must be set aside. This Criminal Revision Application is, therefore, accepted, the order of the learned Additional Sessions Judge set aside and the order of the Mukhtiarkar and F. C. M., Shahdadpur, maintained. K.B.A. Petition accepted.