P L D 2016 Peshawar 29 (PLP)

MALIK MANZOOR HUSSAIN, J.--This appeal has been preferred against the order dated 22.2.2013 passed by learned Additional District Judge/Izafi Zila Qazi-II, Swat, whereby suit filed by appellant under Defamation Ordinance, 2002, was rejected for want of jurisdiction.

2. Facts gave rise to the instant appeal are that appellant filed a suit for recovery of Rs.50 million as damages under the Defamation Ordinance, 2002. The respondent No.1 appeared before the Court and filed an application for rejection of plaint on the ground that since the Defamation Ordinance, 2002, was not extended to the PATA as required under Article 247(3) of the Constitution of Islamic Republic of Pakistan, 1973; therefore, the suit filed was not maintainable.

3. The learned trial Court/Additional District Judge through impugned judgment dated 22.2.2013 held the suit not maintainable on the ground that Defamation Ordinance, 2002, is not extended to PATA and rejected the plaint. Feeling dissatisfied by the order of learned Additional District Judge/Izafi Zila Qazi, the petitioner filed the instant writ petition.

4. Arguments heard and record perused.

5. The main ground which prevailed before the learned Trial Court was that as per requirement of Article 247(3) no enactment shall, ipso facto, applied to PATA unless the President so directs in case of Federally Administered Tribal Area and in case of provincial legislation unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs with respect to any law.

6. There is no denial of the fact that all the enactments made through Ordinances promulgated by the Chief Executive during the period of Emergency passed under the authority of Declaration of Proclamation of Emergency in October, 1999, or under the authority of Provisional Constitution Orders were given validation under Article 270-AA of the Constitution through Seventeenth Amendment. The Defamation Ordinance, 2002, was made applicable to the whole of Pakistan and under the definition clause, PATA is part of. Pakistan. Article 247 of the Constitution was non-operative when the Ordinance, ibid, was promulgated on 1st October, 2002, therefore, it was not the requirement of law at that time that the Ordinance, ibid, which was passed when Article 247 was non-operative and a separate Ordinance/Order as Regulation by the President in this regard was not required for extension of the Ordinance, ibid, to the PATA. Reference can be made to the other Ordinances like the then Local Government Ordinance, 2000, Criminal Law Amendment Ordinance, 2002, whereby 22-A was inserted in Criminal Procedure Code and also provision of Section 489-F PPC was introduced, National Accountability (2nd Amendment) Ordinance, 2000, whereby amendment was made in Section 18 of the Ordinance, 1999, and also Contempt of Court Ordinance, 2003.

7. As the validation was made and protection was given under Article 270-AA of the Constitution, thus, it can be concluded safely that there was no need to promulgate a separate Regulation for extension of application of the Ordinances, ibid, to PATA which were already made applicable to whole of the country including the PATA.

8. Furthermore, the Defamation Ordinance, ibid, was promulgated by the President in pursuance of the Proclamation of Emergency on the 14th day of October, 1999, and the Provisional Constitution Order No.1 of 1999 read with the Provisional Constitution (Amendment) Order No.9 of 1999, and it was made applicable to whole of Pakistan at once, therefore, it is manifest that President has not promulgated the Ordinance in exercise of his ordinary powers under Article 89 of the Constitution rather it was in exercise of powers under the Provisional Constitution Order No.1 of 1999 read with Provisional Constitution Order No.9 of 1999. Similarly, a perusal of Section 5-A(1) of the Order No.9 of 1999 clearly laid down that the Ordinances promulgated by the President were subject to the limitation as to its duration given under Article 89 of the Constitution but at the relevant time of publication of Ordinance, 2002, ibid, the Article 89 was suspended. All the legislations made between 12.10.1999 to 31.12.2003 were validated through Act No.III of 2003 of the Constitution (Seventeenth Amendment).

9. The upshot of the above discussion is that provisions of Defamation Ordinance, 2002, introduced through Ordinance LVI of 2002 are alive and enforced in PATA and there was no need to regularize the same through passing of any fresh Regulation. It is pertinent to mention here that Defamation (Amendment) Act, 2004, was promulgated on 30.11.2004 and at that very time the Article 89 of the Constitution was very much there, therefore, through Khyber Pakhtunkhwa Sharia Nizam Adl Regulation, 2009, notified on 16.4.2009, under paragraph 3(1), the amendment introduced in the Act, ibid, was extended to PATA. For the convenience paragraph 3(1) is reproduced as under:-

3. Application of certain laws.

(1) The laws specified in column (2) of Schedule-I, as in force in the Khyber Pakhtunkhwa immediately before the commencement of this Regulation, and so far as may be, all rules, notifications and orders made or issued thereunder, shall apply to the said area. Under paragraph 3(1) schedule, at S. No. 88 The Defamation (Amendment) Act, 2004, was duly extended to PATA.

10. The view expressed by the learned trial Court in the impugned judgment is not in accordance with provisions of Constitution and is against the provisions discussed hereinabove. In view of what has been discussed above, this Appeal is allowed, the impugned order passed by learned Additional District Judge/ Izafi Zila Qazi is set aside and is declared to be without lawful authority and of no legal effect. The suit filed by the petitioner under Defamation Ordinance, 2002, would be deemed pending before learned Additional District Judge, who shall decide the same in accordance with law and merit of the case. ZC/89/P Appeal allowed.