P L D 1967 Supreme Court 32 (PLP)

HAMOODUR RABMAN, J.‑This appeal, by special leave, is directed against the judgment and order of a learned Single Judge of the High Court of East Pakistan refusing to. interfere in revision with the conviction of the' appellant herein under section 500 of the Pakistan, Penal Code. The appellant, who was at the relevant time the General Secretary of the East Pakistan Union of Journalists, was charged with having issued on the 19th of February 1962, a false Press release to various newspapers in Dacca saying that one Abul Kalam Shamsuddin, who had been working in the capacity of Chief Editor of the daily Azad, Dacca, for over 20 years, had been replaced by Moulana Muhammad Akram Khan, the Chairman of the Board of Directors of Azad and Publications Limited and. that the said false Press release had lowered the reputation, prestige and dignity of the daily Azad in popular estimate. The appellant was further charged with having issued the said false and fabricated news due to previous malice that he bore against the said newspaper. The defence of the appellant was that the publication complained of was true and factually correct and had been issued in the public interest without any malice and without any one of the evil intents alleged by the prosecution. The defence, therefore, claimed that the publication was protected under the First Exception to section 499 of the Penal Code. The prosecution was started on a petition of complaint filed by Muhammad Qamrul Anam Khan in his capacity of Managing Director of the Azad and Publications Limited, a limited liability company incorporated in Pakistan, which owns and publishes the said Bengali newspaper " Daily Azad." In this petition of complaint it was stated that there was no post of Chief Editor of the said newspaper and that Abul Kalam Shamsuddin bad, at no point of time during his journalistic career, served as such Chief Editor of Azad, nor was he dismissed of removed from service or replaced from the post which he was occupying or continued to occupy, namely, that of "the Editor". The publication was alleged to be false to the knowledge of the appellant and to have been made in order to spread discontent among others in the journalistic world knowing that it would harm the reputation, prestige and dignity of the said newspaper as also of its management and in particular of its Managing Director the complainant. There is no dispute that the Press release was, in fact, published in several of the leading newspapers of Dacca and that it purported to have been issued by the then General Secretary of the East Pakistan Union of Journalists, the appellant. The only question, on which the parties joined issue was as to whether the contents of the publication were untrue and whether it had been made with .either or any of the harmful intents mentioned in section 499 of the Penal Code. The oral evidence led in , this case on behalf of the prosecution is brief. The complainant himself gave evidence and filed certain documents in support of his case that Abul Kalam Shamsuddin was never the Chief Editor. of the said newspaper and that, in fact, there was no such post of Chief Editor, but it was elicited from him in cross‑examination that in certain documents he himself had described Abul Kalam Shamsuddin as the Chief Editor and held him out to be holding such a position. His explanation, however, was that it was only by courtesy that Mr. Shamsuddin was described as the Chief Editor in order to distinguish him from others in charge of the editorial work of the said newspaper. He relied on the declarations filed by the newspaper with the authorities as also on published copies of the newspaper itself to show that Mr. Shamsuddin was not only declared to be the "Editor" of the said newspaper but that his name also appeared in every issue of the newspaper as the "Editor". Certain documents were also filed in which Mr. Shamsuddin had described himself only as "the Editor". Apart from this, the only other oral evidence adduced by the prosecution was of two persons to show that the management of the newspaper and the complainant in particular had fallen in their estimation after reading the news item complained of, and they had rung up the complainant to protest against the removal of the said Mr. Shamsuddin. The appellant also examined some witnesses on his behalf and proved certain documents to show that Mr. Shamsuddin was, if not de jure, at least de facto recognised and consistently described as the Chief Editor of the said newspaper. On his behalf an identity card (Exh. K), a letter (Exh. C), issued by the complainant himself, a tripartite agreement (Exh. D) entered into between the Management of the newspaper, its workers and the Conciliation Officer arid an award (Exh. E) of an Industrial Court in the Industrial Dispute Case No. 19 of 1962 were put in to show that the said Mr. Shamsuddin was not only called the Chief Editor and was described as such in various correspondences and official documents but, in fact, also discharged the functions of a Chief Editor. On this evidence the trial Court found that the offence had been made out and convicted the appellant under section 500 of the Penal Code. He was sentenced to pay a fine of Rs. 50 or in default to suffer simple imprisonment for two weeks. The learned Sessions Judge of Dacca was then moved to make a reference to the High Court under section 438 of the Criminal Procedure Code but he dismissed the application in limine. The High Court was then moved in revision under section 439 of the Criminal Procedure Code and a rule was obtained, but after hearing the rule it discharged the same and upheld the conviction and sentence of the appellant. The High Court took the view that since there was no post of Chief Editor of the said newspaper Mr. Shamsuddin could lay no legal claim to such a status and, therefore, , the press release saying that he had been removed from such a post was clearly false and not protected by the First Exception to section 499 of the Penal Code. It was also argued before the High Court that the evidence adduced by the prosecution, even if believed, did not make out a case under section 500 of the Penal Code (vide ground No. 2) but the High Court repelled this contention on the short ground that since the evidence adduced did not show that Mr. Shamsuddin ever legally held the status of a Chief Editor, the offence had been made out, as in the absence of such proof the plea of truth and justification was bound to fail. The contention that the prosecution had not adduced any evidence to show that the appellant was responsible for the issuance of the press release was also discountenanced on the ground that it was inconsistent with the plea of truth which was in the nature of a plea in confession and avoidance. The appellant was, therefore; held to be not entitled to raise the question that the prosecution had failed to prove that he was responsible for the publication complained of. Leave was granted in this case to consider the following points; (1) that in the absence of proof that the defamatory news item had been published in the newspapers at the instance of the petitioner his, conviction under section 500, P. P. C. was bad in law; and (2) that in any event the opposite‑party Muhammad Qamrul Anam Khan had no locus standi to lodge the complaint; but the appellant was also granted permission to add an additional ground in his petition. The appellant has now, accordingly, urged in support of his appeal three grounds, namely, the two mentioned in the order granting leave and an additional ground to the effect that the evidence adduced in this case by the prosecution had not made out the offence charged. We propose to examine this last contention first, as it was also the first ground urged in the High Court. It is argued on behalf of the appellant that a criminal prosecution for defamation materially differs from a civil action for defamation in which the Court proceeds to decide mainly upon the basis of the pleadings of the parties. In a criminal prosecution for defamation, however, the Court cannot proceed on such technical considerations, for, it is not discharged of it, responsibility of finding out whether on the facts proved or admitted the case falls within any one of the Exceptions mentioned in section.499 of the Penal Code. The initial onus in such a case is always on the prosecution to prove the essential ingredients of the charge, namely, (i) that the accused is responsible for the publication ; (ii) that there is an imputation in the publication which is false, and (iii) that the imputation has been made with the intention of harming or knowing that it would harm the reputation of the person against whom it is made. If the imputation is false that may be a circumstance to be taken into consideration for ascertaining the intent of the publisher but it is not by itself sufficient to base the conviction upon. Again, it should not be forgotten that in a criminal prosecution it is sufficient if the accused can show that the imputation was substantially true. The onus upon the accused of proving that his case comes, within either of the Exceptions may also be discharged if he can show that he had reasonable grounds for believing it to be true and was not actuated in making such an imputation by any malicious motive. The mere fact, therefore, that the imputation contained in the publication is factually incorrect will not by itself be sufficient to warrant a conviction under this section. The complaint that the High. Court has, in the present case not correctly appreciated the scope of the enquiry or approached the case in its proper perspective is not without foundation. The High Court appears to have taken it for granted that since Mr. Shamsuddin did not legally enjoy the status of a Chief Editor there was no factual basis at all for the imputation made in the publication complained of and, therefore, it must be taken to have been fabricated with a malicious intent. Learned counsel appearing in 'support of this appeal has taken us through the documents relied upon by the defence in this case. The first of these is a confidential letter (Exh. C) issued under the signature of the complainant himself, on the 15th of August 1961, in which Mr. Shamsuddin has been clearly described as the Chief Editor and has been appointed as the Chairman of a Committee to enquire into certain complaints made by members of the "news desk" against their colleagues. The concluding paragraph of this letter also requests all concerned to attend the first meeting of the said Committee "in the Chamber of the Chief Editor". The next document relied upon is the tripartite agreement (Exh. D), in which one of the matters in dispute upon which agreement is reached is "the allowance of the Chief Editor." This, according to the agreement, was to be "decided between the Management and the Chief Editor within 7 days from the date of joining of the Chief Editor who is on leave" Mr. Shamsuddin had given , evidence to say that this refers to him as he was on leave at that period of time. This assertion has not been rebutted or challenged but it is said that this v as inserted because the workers wanted Mr. Shamsuddin as the Chief Editor. This hardly explains the definite provision in this clause of the agreement for the fixation of the allowance of the, Chief Editor. It clearly envisages that there is a Chief Editor whose allowance has to be fixed. This tripartite agreement was made on the 12th of December 1961. Aft6r this the final decision (Exh. 4‑C) in items of the tripartite agreement was made on the 20th of December 1961. In this Mr. Shamsuddin was described only as the "Editor" and it was stated that he would draw increment of pay of Rs. 25 with effect from 1‑7‑60 to 30‑11‑61 and that his pay on 1‑12‑61 will be Rs. 1,050 per month. This was followed by another decision of the Board of Directors of the Azad and Publications Limited appointing Moulana Muhammad Akram Khan, the Chairman of the Board of Directors, as the Chief Editor of the newspaper, from the 19th of February 1962. The Press release complained of in this case was issued in this background on the 20th of February 1962. The question that arises for consideration upon these facts is as to whether the Press release was, in the circumstances, a deliberate and malicious distortion of fact or as to whether the person' responsible for the issuance of the Press . release could have had no reasonable ground for believing it to be true and to .have caused the publication to be made with any malicious intent? It is contended that whether Mr. Shamsuddin enjoyed the legal status of a Chief Editor or not he was held out to the world at large as the Chief Editor of the said newspaper and that he was often described in documents issued under the signature of the complainant himself as such. By reputation, therefore, at any rate, every one concerned in the journalistic sphere knew him to be the Chief Editor of the daily Azad. In the circumstances, the appointment of Moulana Muhammad Akram Khan as the Chief Editor was, in good faith, regarded by such persons to amount to a replacement of Mr. Shamsuddin and, as such, the news item published was substantially true or one, at any rate, which the appellant had reasonable grounds for believing to be true. In support of the bona fides of the appellant reliance is also plac ed upon the fact that by the appointment of Moulana Muhammad Akram Khan as the Chief Editor Mr. Shamsuddin himself felt aggrieved and lodged a complaint before the Industrial Court charging the Management of the Azad and Publications Limited with having altered his conditions of service and reduced him in rank during the pendency of an industrial dispute, in contra vention of the provisions of section 30 of the Industrial Disputes Ordinance, 1959. It is worth noting that in this case before' the Industrial Court Mr. Shamsuddin himself claimed that he had been the Chief Editor of the Azad since 1940. The plea of the present complainant, who was the opposite‑party in the said case before the Industrial Court, was, as here, that Mr. Shatusuddin was never the Chief Editor of the Azad nor was he ever recognised as such. In fact, there never existed any such post as Chief Editor in respect of the said newspaper. The clear finding of the Industrial Court in that case was, however, that "the Management by its order appointing Moulana Muhammad Akram Khan as Chief Editor as well as by its action has altered the service conditions of the Editor reducing him almost to the status of a non‑entity and that since this has been done, notwithstanding the pendency of a dispute concerning the conditions of service of Mr. Shamsuddin, the conclusion is irresistible that the second party has violated the mandatory provisions of section 30 of the Industrial Disputes Ordinance, 1959." The documents now relied upon by the appellant were also relied upon before the Industrial Court and the latter was also of the opinion that even though Mr. Shamsuddin did not enjoy the legal status of a Chief Editor he was for all intents and purposes the Chief Editor and was certainly by courtesy known as the Chief Editor. This decision of the Industrial Court was published in the Dacca Gazette Extraordinary of the 10th of July 1962, sometime after the petition of complaint was filed on 29‑3‑62 but is nevertheless, relevant for determining whether the appellant could have had any reasonable ground for believing in good faith that Mr. Shamsuddin had been removed from the post of Chief Editor. Upon these facts it is now contended with some force that no case of maliciously and deliberately making a false publication had been made out. We are of the opinion that there is a great deal of force in this contention. If the Management of the Azad and Publications Limited had for a period spread over several years held Mr: Shamsuddtn out to the journalistic fraternity as the Chief Editor of the daily Azad and described him as such in documents issued under the signature of its Managing Director himself as also allowed him to sign identity cards of other members of the staff as such Chief Editor, then can an outsider be legitimately said not to have had any reasonable ground for believing that he not only de facto but also de jure held such a post, particularly, since this impression is, is no small measure, confirmed by the fact that a dispute had, in fact, been raised as to the allowance of the Chief Editor and the Management had agreed to fix the allowance of the Chief Editor within 7 days. In this context, from the announcement of the appointment of Moulana Muhammad Akram Khan as the Chief Editor the only impression that could reasonably be formed was that Moulana Muhammad Akram Khan had replaced Mr. Shamsuddin as such Chief Editor. Indeed, the filing of the industrial case under section 31 of the Ordinance of 1959 also indicates that Mr. Shanlsuddin himself regarded it as a reduction in rank and succeeded in obtaining from the Industrial Court an order to the effect that the appointment of Moulana Muhammad Akram Khan was an interference with his conditions of service or in contravention of the provisions of section 30 of the Ordinance. If Mr. Shams uddin himself felt so and the Industrial Court upheld his) contention then can it be said that an outsider like the appellant had deliberately misrepresented the facts or, in the above context, issued the Press release complained of with a malicious intent? We are unable to agree with the High Court that these facts led to the irresistible conclusion that the publication was a deliberately false one and had been made with a malicious intent. It is unfortunate that the High Court did not look at the case of the appellant in the proper perspective of the facts established by the documentary evidence adduced on his behalf. On this ground, therefore, we are of the view that this appeal must succeed. But since the appellant has also raised two other points we will deal with them briefly. The next point raised by the appellant is that the complainant Mr. Qamarul Anam Khan had no locus standi to file this complaint, for, he was not a person aggrieved. It will be sufficient in this connection to say that Mr. Qamarul Anam Khan was the Managing Director of the Azad and Publications Limited who was entrusted with the management of the company and also possessed the powers of appointing and dismissing members of the staff, including the Editor and the Chief Editor. A complaint on behalf of a company has, furthermore, necessity, to be filed by some person authorised by the company to do so, either specially or generally and normally a Managing Director does possess such powers. In the absence, therefore, of any proof that the Articles of Association of this company did not vest the Managing Director with such powers we are unable to accept the contention that the complainant. did not possess such powers as the Managing Director of the company. In any event, it is clear from the petition of complaint itself that the accusation was not only that the Management and the printers and publishers of the Azad had been defamed but that the complainant, i.e. the Managing Director himself, had also been personally defamed. The locus standi of the complainant, therefore, is abundantly established and there is no substance in this contention. The next contention of the appellant is that since the prosecution has not proved the original of the Press release there is no proof that he was the person responsible for the publication. It is, however, pointed out to us that the complainant in his evidence clearly stated that the appellant had supplied this item of news in his capacity of General Secretary of the East Pakistan Union of Journalists but this assertion was not challenged in cross‑examination. It is not open, therefore, to the appellant now to contend that there was no proof of this fact. By not challenging its correctness he must be deemed to have admitted the same. Learned counsel for the State, when confronted with the finding of the Industrial Court and the complaint of Mr. Shams uddin himself as to his demotion, was compelled to concede that if it is held that the Industrial Court had found that by the appointment of Moulana Muhammad Akram Mr. Shamsuddin had, in fact, been demoted then he would not be able to support the conviction of the appellant for defamation under section 500 of the Penal Code. We have already indicated that there was a clear finding to that effect by the Industrial Court, this appeal, set aside the con viction and sentence of the appellant and acquit him of the charge under section 500 of the Penal Code. The fine, if already realised, should be refunded to him. A. H. Appeal allowed.