P L D 1976 Karachi 706 (PLP)

2. The facts leading to this petition in brief are that the petitioner No. 1 is the Attorney of petitioner No. 2 and respondent No. 3, who had entered into an agreement on 12th November 1970, with Yousuf and Bakhir, sons of Tharo Brohi, for purchase of agricultural land bearing survey Nos. 16, 17, 18, 19, 20 and 30, having a total area of 49 acres and 20 Ghuntas. This land was situated in Deh Taisar Tapo Songal, Taluka, Karachi on the Super Highway, 13th mile from Karachi. The said agreement was renewed by a subsequent agreement dated 9-6-1973, and in all Rs. 1,30,000 were paid by these intending purchasers to Yousuf and Bakhir. On 26-1-1974, Yousuf and Bakhir alleged that the said contract had come to an end due to breach on the part of the purchasers. They were, however, informed by notice that the agreement for sale. could not be cancelled unilaterally. The petitioners then found that: Yousuf and Bakhir had entered into some transaction with respondent No. 2,. Samnan Town Cooperative Housing Society Limited, for sale of the same land. They accordingly served them with a notice dated 22-11-1974. But the Society sent a reply denying every thing. It was then found from, the record-of-rights that the land in question had been sold by Yousuf and Bakhir on 11-7-1974, to two ladies Syeda Noor Jehan and Syedunnissa, who in turn had transferred the same land to Samnan Cooperative Housing Society Limited on 17-9-1974. An advertisement then appeared in Daily 'fang' of 5th November 1974, regarding Samnan Town Cooperative Housing Society Limited, offering plots to the general public in 'Tahir Ashraf Abad', Taber Ashraf being the name of father of respondent No.

2. The Attorney of the original purchasers Aun Syed Hashmi then consulted his legal adviser and published a notice in Daily Dawn (English) of De cember 1, 1974. Since this notice is subject-matter of charge for defamation, it is reproduced here in extenso: "NOTICE Public is hereby notified that the undersigned's principals, namely Messrs Muzzaffar Hussain son of Zafar Hussain and Syed Muhammad. Ismat son of Syed Muhammad Fazil, both residents of Karachi,, entered into a Sale Agreement in respect of agricultural lands,, bearing survey Nos. 16, 17. 18, 19, 20 and 30 measuring approxi mately 49 acres and 20 Ghuntas situated in Deh Taiser, Tappo Songal, Taluka Karachi on 12th November 1970, with Yousuf and. Bakhar, both sons of Tharoo Brohi which was subsequently renewed on 9-6-1973 in pursuance whereof the sellers have received from the buyers a sum of Rs. 1,30,000 (Rupees One Lac Thirty Thousand only) as part-payment towards the sale consideration. This Agree ment is very much subsisting. In spite of this, recently an advertise ment in newspaper has appeared for the sale of plots by Samnan, Town Co-operative Housing Society Limited, Firdous Colony. Karachi. It has been ascertained that the said advertisements pertains to those very lands in respect of which the said Agreement for the sale is very much in force. Any person dealing with the said Society for the purchase of plots in respect of the aforesaid] survey numbers shall be doing so at his own risk as to costs and. consequences. AUN SAIEED HASHMI (M. A. (End.) ATTORNEY C/O 77E, Block 2,Ghazali Road, P. E. C. H. S., Karachi-29." The petitioners also filed suit for specific performance of the original agreement of sale impleading Yousuf and Bakhir as well as respondent No. 2 as parties. Respondent No. 2, however, preferred a direct complaint in the Court of A. C. M. No. XVIII, Karachi against the Attorney and the two original purchasers of this land for offence under section 500/501, P. P. C. In the complaint they stated that the following passage in the notice, published in 'Dawn' was defamatory: (A) "the so-called agreement of sale is very much in force; (B) any person dealing with the said society for purchase of plots in respect of the aforesaid survey numbers shall be doing so at his own risk." The learned Magistrate after recording the statement of the complainant under section 200, Cr. P. C. issued bailable warrants against the accused petitioners 1 and 2 and respondent No.

3. They have, accordingly preferred this petition against the said order, issuing process under` section 204, Cr. P. C.

3. It has been argued by Mr. Sami Ahmad on behalf of the petitioners that the criminal proceedings initiated by respondent No. 2 for offences under sections 500 and 501, P. P. C. are mala fide and entirely misconceived. That even supposing that the notice published in 'Dawn' had harmed the reputation of respondent No. 2 yet it fell under Exceptions (1), (9) and (10) of section 499, P. P. C.; that it is not defamation to impute anything which is true for the public good in good faith for safeguarding one's own interests and those of the public. Exception (9) reads as under:- "It is not defamation to make an imputation on the character of,' another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good." Exception (10) is to the effect that: "It is not defamation to convey a caution in good faith to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good" Thus if the publication of notice was made in good faith, and for protection of the interest of the person making it or for the public good, no offence would appear to have been committed. In Khondkar Abu Talib v. The State and Muhammad Qamrul Aman Khan (PLD1967SC32) it was held that even ii the imputation published was false, yet if it can be shown that the accused had reasonable grounds far believing it to be true, and was not actuated in making such imputation by any malicious motive it cannot warrant a conviction under section 500, P. P. C. In Mushtak Ahmad Gurmani v. Z A. Suleri and another (P L D 1958 Lah. 747) it was held that if an allegation is true its publication will not be defamation in spite of the fact that it is intended to harm the reputation of the person against whom the imputation is made, provided the publication is for the public good. If, however, the -imputation is not true but is believed in good faith to be true the publication is for public good, section 79 of the Pakistan Penal Code read with First Exception to section 499 of that Code will come to the rescue of the accused. It was certainly not the intention of the petitioners to defame respondent No. 2 on account of any malicious motive. The whole idea of the publication of notice in `Dawn' was to safeguard their own interests and also to warn the public, intending to purchase the plots, that the matter of ownership of the plots by the Society was under a bona fide dispute. The very fact that suit for specific performance had been filed in respect of the same subject-matter would show that the petitioners had acted in good faith for safeguarding their own interest, whatever may be the ultimate consequence of such an act on their part.

4. A question then arises whether the petitioners should face the criminal trial and urge these points in their defence, or whether the prosecution of the petitioners would amount to harassment and abuse of the process of Court so as to warrant immediate interference by the High Court at this stage. On this point the learned counsel for the petitioners has referred me to Col. Waheed's case (P L D 1956 Kar. 489). It was held in that case that the High Court had power to quash proceedings if it was satisfied on the basis of undisputed documents including the police diaries, that no prima facie case could be said to have been made out. It was observed in the course of that judgment, that Courts must always be anxious to see that their processes are not made a means of harassment to citizens. It was, therefore, necessary to probe into the facade of high -sounding allegations and find out if there was a substratum of truth, which could make out a case for the prosecution; if not, then the conclusion could be reached that further prosecution would be an abuse of the process of the Court. In Raja Haq Nawaz v. Muhammad Afzal and others (1971SCMR698) it was observed by S. A. Rahman, J. that "normally, of course, every case should be allowed to proceed according to law, and resort to the provisions of section 561-A of the Code of Criminal Procedure should not be lightly made, as this would circumvent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muzammil Khan (PLD1967SC317). Each case must, however, be judged on its own special facts and circumstances. There is a power vested in the High Court to quash criminal proceedings if it is satisfied 8 that the process of the Court is being abused, not to advance the interest of justice but to subject the accused persons to unnecessary harassment. This view was followed in the case of Umar Khan v. Market Committee, Jhelum (P L D 1972 Lah. 497). It was held in that case that where prosecution is entirely unwarranted under the law, it would amount to an abuse of the process of Court. That it is always open to a citizen to invoke the provisions of section 561-A, Cr. P. C. if the prosecution launched against him has no legal foundation. In Yousuf Khan v. The State (P L D 1967 Pesh. 255) it was observed: "But when this Court is satisfied that an accused is being prosecuted, though there is no material before the Magistrate for his prosecution, it will be abdicating its functions, if it did not interfere to stop patent injustice, calling for a prompt redress." In Kazi Taj Muhammad v. The State and another (P L D 1962 Kar. 330) it was held by Inamullah, J. as he then was, that "under section 561-A, Court has ample jurisdiction to interfere where a person is being prosecuted on a charge which, on evidence produced by the prosecution does not exist. This would amount to harassment of an accused person and will be an abuse of the process of law." In this connection reliance was placed on the case of Gokul Prasad and another v. Debi Prasad (A I R 1925 All. 311).

5. Mr. Sarfraz Khan has argued on behalf of respondent No. 2 that the mere fact that a suit for specific performance is pending in respect of the same dispute will not be a bar to criminal proceedings started before the Magistrate and in support of this proposition he has quoted Abdul Wahid v. The State (1975 P Cr. LJ 28). It was observed in that case that where dispute in civil suit was likely to be irrelevant to the criminal case, then the discharge of the criminal case would be premature. That decision has, however. no application so far the facts of the present case are concerned. It is of course an established rule that mere fact of civil proceedings having been instituted cannot be a ground for quashment of the criminal case though it may be a ground for stay of the criminal case, if the questions involved are common and there is likeli hood of any conflicting decisions. In the present case, however, no question of stay can arise, as quashment has been sought on totally different ground that, on the facts alleged in the complaint, and in view of the documentary evidence, the charge for criminal offence under section 500/501, P. P. C. cannot be sustained.

6. It is correct that the inherent powers of the High Court under section 561-A are to be exercised sparingly, carefully and with caution to do real and substantial justice; but where the High Court comes to the conclusion that the criminal case started, is wanting in bona fides and the complaint has been brought for the purpose of harassment and not to advance the interests of justice, then the High Court must come to the rescue of the accused party and stop such proceedings, which in its opinion amount to an abuse of the process of Court. In the present case there was a genuine dispute regarding the sale of the plots in question and the party had ignored the prior agreements of sale, in spite of the fact that a payment of substantial amount had even been accepted and the party had then sold the very same land to the housing society. It cannot be said that the persons affected thereby, had acted criminally by warning the general public and by safeguarding their own interest, that the sale of land to the Society was under dispute. Since no criminal offence was disclosed, nor was there any indication of such offence having been committed in the absence of any malice, the High Court has to interfere to quash such proceedings, for which there could be no evidence in support, in order to secure the ends of justice. A bare statement of these facts would show that it is a fit case for interference at an interlocutory stage. 'The learned Assistant Advocate-General has frankly stated that the notice in question was published in good faith and the allegations in the complaint do, not, therefore, make out even a prima facie case.

7. Under the above circumstances the proceedings of the criminal case in question pending in the Court of A. C. M. XVIII are hereby quashed. S. Q. Proceedings quashed.