P L D 1963 (W (PLP)

Underneath the caption appeared the text of the news mentioning Mr. Iftikhar Mirza (accused No. 3), the staff reporter, as its source. In the body of the report it is alleged that the complainant, along with his brothers and mother, sold about 13 or 14 kanals of land to a certain Hindu before Partition. After the departure of the Hindu purchaser to Bharat, in 1957 M. Safdar, the second son of Dr. Col. Allah Jowaya obtained another power-of-attorney from his sisters and brothers and sold this evacuee land to Mrs. Rabbani and other persons. It was, thus, alleged that the complainant having sold the land once gave a power-of-attorney to his brother for a second sale. The report further mentions that a report has been lodged with the local C. I. D. Police and the investigation is going on against the complainant and his brothers, sisters and mother on the allegation that they had twice sold the above-mentioned property and in spite of the announcement of the Rehabilitation Department during the Martial Law regime are in unlawful possession of evacuee property and did not disclose it to the Government.

3. The grievance of the complainant is that it is totally false that he had sold twice either by himself, or through any other person, any piece of land owned by him or his family. The com plainant further alleged that the body of the report falsely alleges that the complainant having sold the land once gave power-of attorney to his brother for a second sale. According to the complainant the allegation of double sale by the complainant is wholly false. The complainant's case is that his name has been merely dragged in for the purposes of defaming, libelling, sensa tionalism and adversely affecting the career, social status and reputation of the complainant by publishing and disseminating a totally false allegation as a news item against him by the accused persons in their widely circulated paper called " Daily Halaat ". The complainant alleged that the news item is highly defamatory and has adversely affected his honour, prestige and reputation not only in his individual capacity but also as the first Law Officer of the Province. 3-A. Accused No. 1 is the Chief Editor, Printer and Publisher of the " Daily Halaat ". Accused No. 2 is the Editor. Accused No. 3 is the Staff Reporter of the " Daily Halaat ". Accused No. 4 is the Press where the paper was printed by its Managing Agent, namely, Mr. Hamid Mahmood accused No. 5, who, it is alleged, was also responsible for its printing.

4. On the 29th of January 1963, my brother J. H. Rizvi, J. examined the complainant and, on coming to the conclusion that there were sufficient grounds for proceeding further with the case, summoned the accused for the 4th of February 1963. The matter came up for hearing before me on the 1st of March 1963. In the beginning, the complaint was resisted on behalf of the accused persons. The prosecution evidence was, therefore, recorded. The complainant was examined at length as P. W. 1 on the 1st of March 1963 and 2nd of March 1963, by his counsel and cross-examined by the counsel for accused Nos. 1 to

3. On 2nd of March 1963, Mr. Muhammad Iqbal, learned counsel for accused Nos. 4 and 5, stated that his clients were willing to tender unconditional apology and he would not cross-examine the complainant. At first, the complainant was not willing to accept the apology, but later on, on the advice of his counsel, he accepted the apology of Mr. Hamid Mahmood and Messrs Niwa-i- Waqt, Printers Limited, on the condition that the apology should be published in a prominent place in the leading English and Urdu Newspapers of Lahore at the expense of the two accused. The condition was accepted on behalf of the accused by their counsel. On the 5th of March 1963, the complainant compounded the offence with accused Nos. 4 and 5, and they were, therefore, acquitted under section 345 of the Criminal Procedure Code.

5. Accused Nos. 1 to 3 cross-examined the complainant on 1st and 2nd of March 1963. On 2nd of March 1963, accused No. 3 sought adjournment of the case for engaging another counsel as it was alleged that his interest clashed with the interest of accused Nos. 1 and

2. The case was therefore, adjourned for further cross-examination of the complainant to the 5th of March 1963. On that day, the accused No. 3 appeared through Hakim Chiragh Ali, Advocate. Accused Nos. 1 to 3 further tendered unconditional apology to the complainant and submitted an application to that effect. However, the complainant did not accept the apology of the above-mentioned accused and prayed that the case against them may be decided on merits. The counsel for accused Nos. 1 and 2 and accused No. 3 did not further cross-examine the complainant. The complainant was re-examined on certain points by his counsel. The counsel for the complainant further made a statement that in view of the uncondi tional apology tendered by the accused persons, which amounts to a plea of guilty, the complainant would not produce any further evidence in support of the complaint.

6. As a prima facie case was established against accused Nos. 1 to 3, I framed a charge-sheet against them for an offence under section 500 of the Pakistan Penal Code. Accused's state ment was recorded. In their statement they stated that they had already tendered an unconditional apology and pleaded guilty. They further stated that they did not want to produce any evidence in defence for the reasons mentioned in the written apology submitted on their behalf. Accused Saadat Khayali and Qayyum Javed, the Chief Editor and Editor of the daily "Halaat", respectively, further stated that they were not present at Lahore on the date on which news item in question was published in their newspaper and expressed their regret for what had happened. They further gave an undertaking that they would be careful in future and will carry out the undertaking given by them in the written apology.

7. It will, thus, be noticed that accused Nos. 1 to 3 have pleaded guilty to the charge under section 500, P. P. C. framed against them. It is, therefore, open to this Court under section 271(2) of the Criminal Procedure Code to accept the plea of guilty and convict the accused persons on that plea. But it is the duty of the Court even in such cases to find out whether the act complained of does or does not constitute an offence accord ing to law before convicting the accused. In Basant Singh v. The Crown (7 Lah. 359) a Division Bench held " that unless the facts averred in the charge amount in law to an offence under section 17(2), Criminal Law Amendment Act, the plea cannot amount to an admission of guilt under that section. An accused person does not plead to a section of criminal statute. He pleads guilty or not guilty to the facts which purport to disclose an offence under that section." In another case High Court Bar Association, Lahore on behalf of Chandi Ram v. Emperor (A I R 1941 Lah. 301) Bhide, J. observed that- " where an accused pleads guilty but the act complained of does not amount to an offence, the so-called plea of guilty is no more than an admission on the part of the accused that he had committed the act which is alleged to be an offence. But the question whether the act complained of does or does not constitute an offence according to law is obviously one for the Court to decide and hence the accused cannot be convicted merely on his plea of guilty."

8. On this view of the law, I shall proceed to consider the question whether the offence alleged against the accused Nos. 1 to 3 falls within section 500, P. P. C. The complainant in support of the complaint has only examined himself as a witness. The accused persons summoned certain police officers to produce some documents relevant to the case under considera tion. Later on, accused Nos. 1 and 2 gave up these witnesses. Accused No. 3, who was not represented by any counsel, hesitated to examine the police officers as witnesses in the case and was also not willing to ask these witnesses to produce the documents summoned from them. However, I considered the evidence of the police officer, who was present in Court, as material for the decision of the case and examined Mr. Ghulam Muhammad, Sub- Inspector, Enforcement Staff, Lahore, as Court witness in the case.

9. Both in the statement of the accused persons after the charge was framed against them and the written apology submitted by them, accused Nos. 1 and 2 have stated that on the date on which the news item in question appeared in their news paper, they were out of Lahore and were away to Rawalpindi to see the Minister for Information, Government of Pakistan, in con nection with the Government advertisement. All the three accused have further stated that the news was believed to be true by the staff and was published in routine and in good faith at a very insigni ficant space without any motive of defaming the complainant. According to accused Nos. 1 and 2 as soon as they returned from Rawalpindi they made enquiries about the news and as a matter of performing their routine obligation, sent their Chief Reporter, Mr. Malik Mumtaz, to the complainant to find out the truth. As a further proof of their good intention, they offered to apologize unconditionally and publish a contradiction of the said news as soon as they learnt that the news was incorrect. About that time, Messrs H. M. Qureshi and Aftab Ahmad, brothers-in-law of the complainant, came to them with photostat copies of some complaints said to have been filed by the complainant's mother with the Governor of West Pakistan. They led them to believe that the news was correct and could be supported with the genuine and un challengeable evidence. But, later on, all the accused persons realised that the said gentleman had actually misled their staff and them with the so-called documents which had no legal status. They admit that the news item was not correct and had been inspired by the said relatives of the complainant to defame him as a result of an old family fued. They further admit that they have been made use of by the said gentlemen to avenge their domestic differences with the complainant. Being con vinced that the news was entirely wrong and far from truth, they sincerely regret embarrassment and inconvenience caused to the complainant and submitted their unconditional apology to the complainant. It is submitted by them that having found that the news under question was entirely wrong and wilfully inspired by complainant's relations mentioned above only to defame him, they felt that there was no moral justification with them to pursue the case.

10. Coming to the evidence produced in the case on behalf of the complainant, it will be noted that he has not suppressed any facts in respect of the alleged sales made by his brother M. Safdar, his mother and two sisters. His statement shows that his father died in the year 1944 and left children by his two wives. The complainant is the child by the second wife of his father. His father left by this branch nine children, the complainant being the eldest son from the branch of second wife. The com plainant, Muhammad Sarwar and M. Safdar are the three sons and Emina Begum, Razia Begum, Hanifa Begum, Surrayya Begum, Masuma Begum and Tahira Begum, are the six daughters left by the deceased. Mst. Sakina Begum, the widow of the deceased, is the mother of the complainant and the above-men tioned eight children. Four of these children, Surrayya Begum, Tahira Begum, Muhammad Sarwar and Muhammad Safdar, at the time of the death of the complainant's father were minors. Large property was left by the father of the deceased. He also left some property in village Begumpura, which consisted of 34 kanals, 4 marlas and 68 square feet in the shape of plots, which were demarcated by Improvement Trust and divided into several plots. In order to manage the property on behalf of their minor brothers and sisters in 1944, the complainant was appointed by the Guar dianship Court at Lahore as the guardian of the above-mentioned minor persons. Later on, there was private partition between the branch of the petitioner's family with the senior branch of the family and with the permission of the Guardianship Court the complainant entered into a private partition on behalf of the minor children under partition deed Exh. P.

1. Annexure `A' refers to the entire property left by the complainant's father and item No. 7 of this Schedule refers to the property in Begumpura. Out of the Begumpura property 23.96 kanals came to the share of the complainant's branch of the family jointly. The complainant's case is that the property situated in Begumpura was disposed of by him from time to time. Four kanals out of this property were sold immediately after Partition to Dar-ul-Furqan. Another plot of land was sold to one Hadi Ali. In 1947, the petitioner, on his own behalf and. on behalf of his brothers, sisters and mother, sold plots Nos. 2 to 13 and 16 to 28 to two Hindu gentle men, namely, Aroor Chand and Prem Chand. The area of this land was 13 kanals. This land was sold under a registered sale deed. The complainant further stated that thereafter he did not re-sell these plots to any other person and had nothing to do with the above-mentioned plots of land. The complainant has cate gorically denied that he had anything to do with the sale trans actions entered into by M. Safdar, his two sisters and mother in the year 1957.

11. The complainant's case' is that towards the end of November and in the beginning of December 1962, he learnt that M. Safdar, his younger brother, had dealt with the above-men tioned property and disposed it of to some persons without his knowledge. Thereupon, he made enquiries and he was informed that M. Safdar had sold 5 or 6 kanals out of this land to some third party. He further learnt that in this sale transaction his two sisters, Tahira, Hanifa, and his mother were also a party. In answer to a Court question, whether the above-mentioned tran sactions entered into by his brothers, sisters and mother were within his knowledge before he learnt about it towards the end of November and beginning of December 1962, the complainant emphatically denied it. The complainant has produced the certi fied copies of the sale deeds entered into in 1957, executed by his brothers, two sisters and mother Exhs. P. 2/A, P. 2/B, P. 2/C, P. 2/D, P. 2/E, P. 2/F, P. 2/G, P. 2/H and P. 2/I. The complai nant has further asserted that no part of the news item mentioned at page 8 of Exh. P. A relating to him is correct. He has denied to have given any power-of-attorney to his brother M. Safdar in respect of the above-mentioned sale transactions. He has further denied to have anything to do with the alleged transactions of sale and has expressed that he had no knowledge about it when they were entered into by his brothers, sisters and mother. The complainant has also stated that at no time he was told that any complaint bad been lodged against him for dealing with the above-mentioned evacuee property. In cross-examination the learned counsel for accused Nos. 1 to 3 tried to bring on the record certain material to show that there was family dispute between the complainant, his mother, brothers and sisters and that certain complaints were made against him to the Governor of West Pakistan and to some of the Judges of this Court. In my opinion, those questions were wholly irrelevant for the considera tion of the allegations made in the complaint. The learned counsel for the accused persons however, submitted that he wanted to establish that the complainant had no reputation and, therefore, the question of harming his reputation, which is one of the ingre dients of section 500, P. P. C. did not arise. I have looked into these documents also and have come to the conclusion that prima facie the allegation against the complainant that he has played a fraud on his mother has not been established. On the other hand, the complainant's version that he was not a gainer under the sale deed executed by his mother in favour of his two brothers and was a loser appears to be well-founded.

12. The case of the complainant that the news item published in the accused persons' newspaper "Daily Halaat" is absolutely false so far as he is concerned, is also supported by the statement of C. W. 1 Ghulam Muhammad, Sub-Inspector, Enforcement Staff, Lahore. According to this witness, Walayat Shah lodged information with the police on the 4th of October 1962. He pro duced the file of the investigation conducted on this complaint marked C. W. 1/1. He stated in unambiguous terms that no allegation was made with the police against the complainant in respect of any sale transaction of evacuee property in the year 1957. It is, therefore, quite obvious that the news item in ques tion so far as it relates to the complainant is absolutely false and has no foundation. I have also gone through the file of the complaint filed by Walayat Shah. No allegation has been made in this complaint against the complainant. On the other hand, the allegations are only confined to M. Safdar, his two sisters and mother. There is thus not the slightest doubt that the allegations against the complainant that he sold the property left by his father in Begumpura twice or gave a power-of-attorney to his brother, M. Safdar for disposing it of later on is absolutely false. I have no reason to disbelieve the evidence of the complainant on all the points, referred to above. The sale transaction, referred to in the news item, has nothing to do with him. It was only his brother, two sisters and mother, who can be said to have resold their so-called share in the property, left by his father in Begum pura village. During the cross-examination of the complainant an attempt was made to bring out the fact that after the disposal of the property by him on his own behalf and on behalf of his minor brothers, sisters and other persons as attorney no change was made in the revenue records. In my opinion, there was no such responsibility on the complainant in this behalf. Under section 34 of the Punjab Land Revenue Act, 1887, any person acquiring, by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as land owner, assignee of the land revenue or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate. There was, thus, no duty on the complainant to get the mutation changed in the name of the purchasers and no blame can be cast on him in this respect. I am satisfied that no part of the news item has any basis whatsoever so far as the allegations against the complainant are concerned. I am further satisfied that the complainant is a man of good character, enjoys good reputation and is a respectable citizen of Pakistan. He holds an important social status in the City of Lahore and, being the Principal Law Officer of Govern ment of West Pakistan, enjoys a very high position in the official circle of this Province. There is nothing on the record to the contrary in this respect. It is, therefore, absolutely clear to me that the accused persons have been guilty of publishing the news item containing defamatory matter against the complainant, who enjoys perfectly good character, reputation, respect being a man of high social status.

13. In the beginning of the trial, an effort was made on behalf of the accused persons to justify the news item, but the accused persons immediately realised that it was a very hazardous step on their part. Ordinarily, a plea of justification should be put forward only in case of practical certainty of success. If there is no substantial defence, immediate apology in the widest terms is a step which may fairly lessen the offence committed under section 500, Pakistan Penal Code. It was for this reason that before beginning the trial I had told the accused persons that it was open to them to express their unconditional apology and I would take that into consideration before I finally come to a conclusion in this matter. At first, the accused were reluctant; but, later on, better counsel prevailed and they acted on the proverbial saying of "better late than never".

14. It must have been noticed that accused Nos. 1 and 2 have pleaded that they were out of Lahore at the time when the news in question was published in their newspaper on the 25th of January 1963. According to them, they had gone to Rawalpindi to see the Minister for information, Government of Pakistan, in connection with the Government advertisement. Mr. Rafiq Ahmad Bungash, therefore, contended that the offence, if at all, was a technical one. I shall, therefore, have to consider the question whether their absence at the material time would absolve them from the responsibility of the news item published in their newspaper. Except the bare statement of the two accused, there is no evidence in support of their assertion that they were out of Lahore at the material time. Assuming for the sake of argument that the two accused persons were out of Lahore on that date and the news item in question was published in their absence, they cannot escape their responsibility for the alleged offence. In law, the declaration made by the Editor under section S of Act XXV of 1867 (Now section 6 of Ordinance XV of 1960) to the effect that he was the printer and publisher of the newspaper was prima facie proof of publication by the editor. It would, be however, sufficient answer to the charge if the editor proves that the libel was published in his absence and without his knowledge, and that he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person. This view is supported by a decision of the Madras High Court in Ramasami v. Lokanada (I L R 9 Mad. 387) and another decision of the Allahabad High Court Har Swarup v. Muhammad Siraj (I L R 50 All. 806). In the last-mentioned case, a Division Bench of the Allahabad High Court held- "prima facie the person who is the `declared printer' of a newspaper is responsible for everything that is printed in it He can, however, escape liability by showing that he was absent bona fide, that is, not with the purpose of evading responsibility, when a particular article complained of was printed. But if he does so, he is bound to give evidence as to who the actual printer of the paper in his absence was." Accused Nos. 1 and 2 have not denied that they are the Chief Editor and Editor, respectively, of the newspaper the "Daily Halaat". The complainant has also produced their declaration Exh. P. 4, and prima facie they are responsible for the news item in question.

15. I have considered the plea of the two accused persons in the light of the above-mentioned discussion. But neither the accused persons have examined any witness in support of their plea nor have they produced any evidence to show that in their absence they had entrusted the management of the paper to a res ponsible person nor have they disclosed the name of any such person. In these circumstances, the accused Nos. 1 and 2 cannot escape their liability in respect of the news item under consideration.

16. After careful consideration of all the facts and circumstances of the case, I am satisfied that all the three accused have been guilty of the offence of section 500 of the Pakistan Penal Code and are liable to be convicted on the evidence adduced in the case and their plea of guilty. This case is a glaring instance of cheap sensational journalism which is not a healthy sign or commendable act. This type of journalism must be avoided by responsible journalists in the interest of public at large. The accused persons in the preset case did not at all act in a respon sible manner. As pointed out by Mears, C. J., in the case of Muhammad Nazir v. Emperor (A I R 1928 All. 321) an Editor should be most watch ful not to publish defamatory attacks upon individuals unless he first takes reasonable pains to ascertain that there are strong and cogent grounds for believing the information, which is sent to him, to be true. But this salutary guiding rule was not followed by any of the accused. They did not even take any step before the trial of the case to contradict the news item. Accused No. 3, Staff Reporter of the "Daily Halaat", is stated to be the source of information of the news item in question. But the news supplied by him, as already discussed, against the complainant has no connection with the information lodged with the C. I. D. Police. Obviously reference to the complainant in it was either based on conjectures or an inspired one. In whatever light it may be taken, it is most reprehensible. No Court of Law can countenance such conduct. He has given an undertaking that in future he would be careful and not indulge in supplying false sensational news. Let me hope he will abide by it.

17. All the three accused have now tendered un unconditional apology to the complainant. Although it has not been accepted by him, but it is an extenuating circumstance in favour of the accused persons. Mr. Shabir Ahmad, the learned counsel for the complainant, also conceded that in view of the apology, it is net a case in which a deterrent sentence should be passed against them. I would, therefore, convict the accused under section 500, Pakistan Penal Code, and sentence each of them to Rs. 200 fine. In default of the fine, each of the accused persons will have to suffer simple imprisonment for one month. The accused are allowed to deposit the fine within a week. A. H. Order accordingly.