1997 P Cr (PLP)

S. Madad Ali Shah for Applicants. Nemo for Respondent No. 1. Ch. Bashir for the State. Date of hearing: 14th March, 1997. By this Criminal Miscellaneous Application, applicants Qazi Muhammad Ali and Danyal Danish have approached this Court to exercise the jurisdiction vested in this Court under the provisions of section 561-A, Cr.P.C. and have prayed that direct complaint filed against them by respondent No.1 Muhammad Ayub Fazlani, Officer of Sindh Small Industries Corporation at Mirpurkhas, may be quashed. 2.The facts of the case, in short, are to the effect that applicants Qazi a Muhammad Ali is Editor of daily Newspaper Khadim-e-Watan published from Hyderabad while applicant No.2 Danyal Danish is a reporter of the same Paper. On 21-6-1992 the above said daily newspaper had carried out a news, the sum and substnace of which was to the effect that some persons of a particular group were being favoured with appointment letters for service in the Sindh Small Industries Corporation which was headed by complainant Muhammad Ayub: Fazlani. On having been offended by such publication complainant Muhammad. Ayub Fazlani took it to be a defamatory statement on the part of present applicants viz. Editor and Reporter of the newspaper along with the Printer and Publisher of the said newspaper by name Mushtaq Ahmed and Aslam Akbar Kazi, and he filed direct complaint under sections 500, 501 and 502, P.P.C. in the Court of Civil Judge and F.C.M., Mirpurkhas. The learned F.C.M. on examination of the complainant under section 200, Cr.P.C. passed an order issuing process for appearance of the applicants under these terms:-- "I have heard the learned counsel for the complainant. I have also perused the statement of complainant recorded under section 200, Cr.P.C. He has produced the sufficient documentary evidence. Keeping in view, attached, I am of the considered view that prima facie case, under section 500, P.P.C. read with section 502, P.P.C. is made out, I therefore, order to register the case against accused. No. 1 and three (3) under sections 500 and 502, P.P.C. Issue bailable warrants against the mentioned accused in the sum of Rs.5,000 each and P.R. Bond in the like amount. " Significantly, no order of issuance of process was made against the two accused viz. Printer and Publisher of the newspaper and absolutely no reasons for the same were shown. What was required by a Magistrate was to show as to which portion and part of the news published in the newspaper amounted to defaming the complainant but there was no mention of that fact in the order passed by the learned Magistrate. The applicants had challenged the order of the Magistrate in the Court of Sessions Judge under the provisions of sections 435 and 439, Cr.P.C. by a revision, but the same was dismissed observing that there was no illegality and irregularity in passing of the order of issuance of process but however, was left to the applicants to move an application under section 249-A, Cr.P.C. in the trial Court after it had recorded certain evidence, and thereby applicant could pray for acquittal. The applicants have, however, filed this application under section 561-A, Cr.P.C. stating that no offence is made out at all from the news published by the applicants in the newspaper and that it has been mistranslated that it amounted to racial discrimination. The words used by the learned Sessions Judge while deciding the revision that the news amounted to racial discrimination are not correct as after going through the entire contents of the news item I do not find that the applicants had any intention of distinguishing and creating differences of the "race" with regard to the respondent. In fact neither the complainant in his statement under section 200, Cr.P.C. described nor the contents of the complaint before the Court showed that there was any allegation against him of having committed discrimination between the races or that he was defamed in any manner. On the contrary I find from the contents of the relevant news that it amounted to a fair criticism against the action of the complainant who was a responsible officer, and that he had acted against the Rules and Policy in providing jobs to favourites when officially a ban was operating against such recruitment. The complainant, therefore, does not appear to have been defamed in any manner by this publication nor he has shown so in his statement under section 200, Cr.P.C. or the direct complaint and no particulars have been given of the portion of the news due to which his having been defamed in any manner, on account of the said publication could be spelt out. The newspapers should have the liberty of making fair comments and criticism on the actions of the Government Officers if they appear to go against the Rules and Policies, specially when favouring certain class of people. The main crux of the publication in this case was that the officer concerned had provided the jobs to his favourites or the persons of some particular class when there was a Government ban on the appointments therefore, by no stretch of imagination the publication in the newspaper could be termed to be aimed at dubbing the complainant to be guilty of racial discrimination or having lost any reputation on account of the publication of this news item. Therefore, I do not find that the provisions of sections 500 and 501, P.P.C. are attracted and any useful purpose will be served if this complaint is left on record of the Court. I am afraid that it will amount to abuse of the process of law to proceed any further with this case. 3. The other ground taken by the learned counsel for the appellants was that the statement under section 200, Cr.P.C. was not properly recorded by the Magistrate as it did not appear to be in his personal handwriting but it was in the hand of the Reader. The learned counsel on this point referred to the case of Tahir Javed and others v. Abdul Razzaq and others reported in PLD 1995 Lah. 261 and the case of Muhammad Ali Kazi and another v. The State and 3 others reported in 1994 PCr.LJ 430. In the latter case which is a decision by a Single Bench of our own High Court it was observed that the statement of the complainant in direct complaint should be recorded by the Magistrate himself in his own hand in order to exclude all possibilities of prompting and such statements should not be allowed to be recorded by the Reader of the Court or by any other clerk. There is no cavil with the principle laid down in this case but I do not find in this case that the statement under section 200, Cr.P.C. was not recorded in presence of the Magistrate himself although it appears in the hand of the Reader as pointed out by the learned counsel for the applicant. Similarly in the former case cited above which is also a Single Bench decision of the Lahore High Court, the learned Judge had found no evidence to the effect that the statement under section 200, Cr.P.C. was either written by the Magistrate himself or recorded on his dictation and consequently he had held the statement to be illegal. Under the law of Qanun-e-Shahadat every act of an officer, functioning in official capacity is presumed to have been done in accordance with rules provided by law unless it was proved to be contrary. Therefore, I feel that the statement under section 200, Cr.P.C. recorded in this case must have been in accordance with law and it has to be presumed that the Magistrate got it recorded in his presence. Therefore, I do not agree with the second argument of the learned counsel on the point that statement under section 200, Cr.P.C. should be termed as illegal and void. 4. The learned counsel appearing for the State had supported the case of the applicants on the first point that no defamation is spelt out from the publication and that such news item if curbed by the Courts treating it libellous or defamatory, the same will amount to hamper the freedom of the Press, and therefore, the learned State Counsel has conceded that this is a fit case for quashment. 5. Agreeing with the learned counsel on the first point and with the argument of the learned State Counsel on that point, I hold that this is a fit case where powers of this Court under section 561-A, Cr.P.C. are attracted, and I hold that if this case is left on the file of the Court of the Magistrate, the same will amount to abuse of the process of the law. Therefore, I order that the proceedings in the direct complaint against the applicants are liable to quashment. Consequently this application is allowed and the proceedings pending before the trial Court are quashed. N.H.Q./M-155/K Proceedings quashed.