P L D 2002 Karachi 115 (PLP)

(6) That the complainant commands good reputation, honour, respect in the town and his reputation is seriously damaged by defaming the accused with the abovesaid words mentioned in para. No.5 and insulted him without cogent reason and he also induced students to take part in political activity and disobeyed the directions of the law with intention to cause injury to the complainant and he also unlawfully purchased property in the town and the honour of the complainant has been seriously damaged/defamed by the accused persons, hence he is liable to be punished in accordance with law. (7) That the offence is committed within the jurisdiction of this Honourable Court for which complainant went to Police Station Shahdadpur in order to lodge his report but due to influence of accused he could not lodge the same, hence this direct complaint before this Honourable Court, it is therefore prayed that legal action be taken against the accused person. Prayer has been made in the interest of justice. (Sd.) Complainant. " On receipt of this written complaint the learned trial Magistrate examined the complainant on oath on 7‑2‑1995. The perusal of the R & Ps reveals that the learned Magistrate passed orders for holding P.E. and the matter was put off to 15‑2‑1995. However it appears that on 26‑2‑1995 without producing any further evidence the complainant closed his side, as on 9‑2‑1995 the matter was adjourned on account of absence of the trial Magistrate. On 28‑2‑1995 learned trial Magistrate passed the following order:‑‑ PE called. Complainant and his advocate present. Requests time. Order passed on complaint. Complaint brought on file. Case registered against accused under sections 153‑B, 166, 504, 499, 500 and 506, P.P.C. Issue B.Ws against accused in the sum of Rs.15,000 P.R. bond in the like amount. Put off to 22‑3-1995. Complainant is directed to attend. Thus it seems that on the basis of sole statement of the complainant and accepting the attested photostat copies annexed with the complaint I learned Magistrate took cognizance of the matter and directed the registration of the case against the applicant under sections 153‑B, 166, 504, 499, 500 and 506, P.P.C. Simultaneously the bailable warrants were issued against the applicant in the sum of Rs.15,000 and PR bond in the like amount vide order dated 28‑2‑1995 . I have heard Mr. Allah Bachayo Soomro, Advocate for the applicant and Mr. Muhammad Azeem Panhwar learned counsel for the State. Respondent was called absent though he was served. On perusal of the case diary it appears that respondent had never appeared in this Court, therefore, with the assistance of learned counsel for the applicant and the State I proceeded to hear this matter. Apart from the contents of the direct complaint, I have also minutely examined the contents of the statements recorded by the respondent No. l/complainant under section 200, Cr.P.C. The statement reveals that the complainant on inquiry from the Headmaster of the Government Primary School was informed that the students have proceeded to participate in a peace rally which was organized as per the instructions of D.E.O. viz. the present applicant/accused, received by the school authorities through the S.D.E.O. concerned. The complainant/respondent No. l sent a legal notice to the applicant/accused through his Advocate. In reply thereof the applicant/accused used "un parliamentary language" and levelled allegations thereby attempted to harm the reputation and honour of the complainant/respondent No.1. It was stated in the statement that in reply it was alleged that the complainant/respondent No.1 was trying to blackmail and harass the applicant/accused and in that manner wanted to derive undue benefit. The threats were also allegedly extended in the said reply. It was revealed upon the complainant/respondent No.1 that the applicant/accused had no respect for the complainant/respondent No.2 and that in the eyes of the applicant/accused the complainant/respondent was "an illegal and un‑Constitutional man". It was stated that due to such acts the reputation of the complainant/respondent No.1 was harmed, and that he presumed that in the eyes of the applicant/accused he was a "terrorist" and "blackmailer" though he was a peace‑loving citizen and that from his birth till date no criminal or civil material of any kind was available against the complainant/respondent No.

1. He further stated that because of this he was perturbed and defamed in his friends and relatives and officers of the town. As a result thereof the complainant/respondent suffered mental and physical pain, and that the accused/applicant has unnecessary brought his children on road. On the perusal of this statement, learned trial Magistrate was persuaded to register a case against the applicant/accused under sections 153‑B, 166, 504, 499, 500 and 506, P.P.C., and accordingly B.Ws. were ordered to be issued against him. Section 153‑B provides punishment for inducing the students or any institution connected with students to take part in any political activity, which disturbs or undermines or is likely to disturb or undermine the public order. Admittedly there is no allegation to induce the students to take part in any kind of political activity. There was absolutely no question of creating law and order situation. On the contrary the contents of the complaint itself show that it was a peace rally arranged to create awareness about peace and harmony in the society. Section 166 is an offence relating to public servants and provides for punishment to those public servants who knowingly disobey the directions of the law; Undisputedly the provisions of this section are neither relevant nor attracted in the circumstances of the present case. The section seems to have been misapplied maliciously. As is evident from the contents of the complaint there was no ~8 intentional insult having been caused to the complainant/respondent No.1 so as to constitute the offence under section 504, P.P.C. notwithstanding its competence/validity. Reverting to the provisions of section 506, P.P.C., it may be observed that there was absolutely no criminal intimidation on the part of applicant/accused, as nothing to that effect could prima facie be inferred either from the contents of the complaint or from the statement recorded by; the complainant/respondent No.

1. So far as the question of causing harm to the reputation of the complainant/respondent No.l is concerned, I am at loss to understand as to how the participation of the students of Government Primary School in a rally arranged for the purpose of promoting harmony and creating awareness amongst the public about peace on the directives of the Government was [B likely to cause any sort of defamation to the parents of the kids. It is worth‑noting that prior to the filing of this complaint, the complainant/respondent No.1 had moved an application dated 13‑12‑1994 to the learned District and Sessions Judge, Sanghar, alleging therein that the minor boys were made to join the rally without the consent of the parents whereby the complainant/respondent sustained torture as it was violative of the human rights. Accordingly he prayed for legal action against the applicant/accused. However vide order dated 22‑12‑1994 passed by the' learned District & Sessions Judge, Sanghar in presence of parties the matter was filed. The regrets were expressed by Mr. Qureshi, S.D.E.O. Shahdapur who held assurance for the future. The complainant/respondent accordingly felt satisfied. Photostat copy of the said document has been filed alongwith the direct complaint and has been relied upon by the complainant/respondent No. 1: The allegations levelled by the respondent No, l/complainant are that the minor children of the complainant who were studying in the school were made to attend a peace rally by the administration of a Government Primary School, feeling aggrieved of that peace rally the respondent No.l got issued a legal notice to the applicant in this case who at the relevant time was serving as District Education Officer (M), Sanghar. Notice was served C by the respondent No. l/complainant through his Advocate and was replied by the applicant/public servant. On receipt of the reply of the said legal notice the direct complaint appears to have been filed. The allegation against the present applicant is that the said peace rally was arranged under his orders. It was further alleged that complainant/respondent was enjoying good reputation, respect and honour in the town and that he was defamed by certain comments made in the reply of the legal notice. Strangely enough there is also an allegation in para. No.2 of the complaint that the accused/applicant was previously a school teacher and was living in a small rented house, and that presently he was residing in large big valuable house in the town and possess many plots in town. On minute perusal of the allegations made in written complaint prima facie no offence has been constituted. But it is quite dismaying that the learned trial Magistrate took cognizance under all the sections which were incorporated in the said complaint without determining the applicability of the sections. It will not be out of place to mention that the main object of section 200, Cr.P.C is to protect the public from false, frivolous and vexatious complaints filed against them in criminal Courts and that the E Magistrate must not lightly accept the written complaint and proceed to issue process until they have surely sifted the allegations made against the accused and are satisfied that prima facie the case has been made out against those who are accused of the criminal offences. The offences so alleged as apparent from the contents of the complaint are that the children of the complainant' were made to participate in peace rally according to the policy of the Government, though the applicant/accused in this case was a District Education Officer and was not directly responsible for participation of minor children or for that matter for any inconvenience caused to them due to their participation in the rally. So far the question of any defamation is concerned it was the complainant who got issued a legal notice to the present applicant and the present applicant simply replied the said notice. There is no allegation whatsoever in the reply of the notice which may constitute the offences under sections 499, 500, P.P.C.. There is absolutely no insult threat or abuse whatsoever in order to constitute any offence under sections 504 and 506, P.P.C. The other sections have also been misapplied?. On perusal of the R & Ps of the case I have concluded that the respondent No. l /complainant in this case was obliged by the learned trial Magistrate for the reasons best known to him. It appears that the learned trial Magistrate even did not care to go through the definition of the sections which were applied and passed orders for registration of the complaint in a mechanical manner without holding any preliminary enquiry. I am of the considered view that the prosecution was motivated by malice, and the learned Magistrate acted in unlawful manner and in colourable exercise of powers. For the above reasons the proceedings pending in the Court of Civil Judge and F.C.M., Shahdadpur in Criminal Case No.32 of 1995 (Amir Bux v. Roshan Ali) are hereby quashed. These are the reasons for the short order dated 24‑8‑2001. H.B.T./R‑58/K Proceedings quashed.