P L D 2010 Lahore 300 (PLP)

SAGHEER AHMAD QADRI, J.

Respondent No.1 Abdul Aziz Mohmand son of Abdul Hakim, Editor, Editional Management and Resident Manager, Jang Group of Newspapers filed a private complaint under sections 499/500/501/502/502-A P.P.C. against the present petitioner Malik Muhammad Shoaib Bhutta, Editor Daily "Tulou", Islamabad mentioning that the petitioner-accused being Editor and Publisher of Daily "Tulou", Islamabad started a vilification campaign against Jang Group of Newspapers, its CEO and GEO Television network while publishing highly defamatory, scandalous, derogatory, false, baseless, untrue and concocted news items/material with mala fide intention to harm, defame, demoralize and lower down the credibility of the Jang Group of Newspapers and its CEO. Details of the alleged defamatory material published by the petitioner-accused was mentioned in the complaint in its different paragraphs and prayed that action accordingly be initiated.

2. This private complaint was entrusted to the Court of learned Additional Sessions Judge, Islamabad who recorded cursory evidence led by respondent No.1 complainant and vide order dated 12-11-2009 summoned the petitioner-accused under sections 499/500/501/502/502-A, P.P.C. to face the trial. The petitioner subsequently appeared before the learned trial Court submitted his bail bonds and on 7-1-2009 submitted an application without mentioning any provision of law, however, from the contents of the application it seems that it was filed under section 265-K, Cr.P.C. The contents of the application are hereby reproduced as under:-- (1) That the above captioned complaint is pending adjudication before this Hon'ble Court against the applicant which is fixed today i.e. 7-1-2009 for framing of charge. (2) That the captioned complaint does not fulfil the requisites of section 198 of Cr.P.C. as such the same is liable to straight away dismissal. (3) That further to the above objection, the question whether substance complained against is defamatory or not is sub judice in a competent jurisdiction, where the cognizance has been taken. On the referred score also, the captioned complaint is liable to dismissal. In the circumstances, it is humbly prayed that the above captioned complaint may kindly be dismissed.

3. The learned trial Court after hearing the parties vide impugned order dated 27-1-2010 dismissed the application of the petitioner. Feeling aggrieved the petitioner-accused has preferred this criminal revision with a prayer that the impugned order be set aside and proceedings before the learned trial Court be quashed.

4. Learned counsel for the petitioner argued that under section 198 of Criminal Procedure Code, 1998, it is specifically provided that no Court shall take cognizance of an offence falling under Chapters (XIX) and (XXI) of the P.P.C. except on the complaint lodged by an aggrieved person. It was mainly argued that the complainant-respondent No.1 was not an aggrieved person and if at all any material was published by the petitioner it was allegedly against Mir Shakeel-ur-Rehman, Chief Executive of Jang Group of Newspapers and allied Companies like GEO Television, etc.; that respondent No.1 complainant in no way thus becomes an aggrieved person which is requirement under section 198, Cr.P.C. for filing any such complaint for initiation of action for commission of an offence defined as defamation under the Pakistan Penal Code. It was argued that the learned trial Court did not advert to this aspect and only on the ground that civil as well as criminal proceedings can proceed side by side dismissed the application moved by the petitioner. Prayed that respondent No.1 complainant being not an aggrieved person, therefore, impugned order passed by the learned trial Court is illegal as the complaint was not maintainable in the circumstances. Reliance has been placed on the judgment cited as Aslam Akbar Kazi and 3 others v. Gulzar Ahmad Channa and another (2003 P.Cr. L.J. 1892).

5. On the other hand, learned counsel for respondent No.1 complainant has vehemently opposed the arguments advanced by the learned counsel for the petitioner on the grounds that as defamatory material was published by the petitioner-accused basically against Jang Group of Newspapers, its CEO and GEO Television and the complainant-respondent No.1 being Editor and Editorial Management and Resident Manager Jang Group of Newspapers, therefore, defamatory material published by the petitioner-accused directly or indirectly affects him as well as Jang Group of Newspapers, etc.; that the respondent No.1-complainant in the circumstances is an aggrieved person as defined under section 198, Cr.P.C. Learned counsel further argued that even otherwise revision petition in the circumstances when charge is yet to be framed and the learned trial Court is to proceed on merits is not maintainable. Prayed that the impugned order was perfectly justified. While relying on Muhammad Abdullah v The State (2000 PCr.LJ 576), Bashir Ahmad v. Zafar ul islam and others (PLD 2004 SC 298), Imdad and 3 others v. The State and 2 others (2006 P.Cr.LJ 1243), SHEVO v. Regional Police Officer, Hyderabad Region, Hyderabad and 15 others (PLD 2009 Karachi 24) prayed that this revision petition be dismissed.

6. I have heard the learned counsel for the parties and perused the record.

7. Respondent No.1 being the Resident Manager of Jang Group of Newspapers filed the above mentioned complaint under sections 499/500/501/502/502-A, P.P.C. mentioning the facts that the material published by the petitioner-accused in his newspapers Daily "Tulou", Islamabad tantamounts to defamation of Jang Group of Newspapers, Companies, GEO News Channel as well as its CEO. The main contention raised by the learned counsel for the petitioner-accused in the application moved before the learned trial Court was that as respondent-complainant was not an aggrieved person as defined in section 198 Cr.P.C. therefore, the complaint was not maintainable.

8. In order to appreciate the arguments it is appropriate to reproduce the relevant provision of law i.e. section 198 Cr. P.C. "

198. Prosecution for breach of contract, defamation and offences against marriage.

No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence"

9. The word `complaint' has also been defined under section 4(h) of the Criminal Procedure Code which reads as under; "4(h) "Complaint"

Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer.'

10. In normal course a complaint may be filed by any person bringing into the notice of a concerned Magistrate or a Court for initiation of an action against some person who allegedly committed an offence. Sections 195 to 199-B of Criminal Procedure Code, however, provides an exception to the general rule. Here in special circumstances certain embargoes/pre-conditions are imposed before initiation of complaint against public servants or by the public servants as well as in cases of defamation and marriages, etc. under section 198, Cr.P.C. it has specifically been provided as above mentioned that in such-like cases and for the present controversy in prosecution of an offence of defamation the complaint must have been filed by an aggrieved person before a Magistrate or Court of competent jurisdiction. The words aggrieved persons are of much significance used in section 198, Cr.P.C. The word person is defined in section 11 of the P.P.C. which is hereby reproduced: "Person". The word `person' includes any Company or Association, or body of persons, whether incorporated or not."

11. If the above mentioned definitions seen person means not only an individual but it includes a Company, an Association or body of persons whether incorporated or otherwise. The juristic persons are also termed as person falling under the above mentioned definition. If section 499, P.P.C. is seen whereby the offence of defamation is define it says:-- "

499. Defamation.

Whoever by words either spoken or intended to be read or by sign or by visible representations, makes, or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person is said, except in the cases hereinafter excepted, to defame that person.".

12. The word person also used by the legislature while defining the offence of defamation as reproduced above. In a judgment cited as Municipal Board, Konch v. Ganesh Prasad Chaturvedi (A.I.R. (99) 1952 Allahabad 114) while deciding with the same proposition it was held

"

4. Having regard to the provisions of section 499, read with Explanation 2 and the definition of the word `person' in S.11, Penal Code, it cannot be said that a complaint for defamation is not maintainable at all by a corporation. But certainly the scope of such a complaint by a corporation is not the same as that by individuals. The Municipal Board per se has hardly a reputation. If the management is good it will be said that the Board is being run efficiently. But if the management is bad there is bound to be accusation of inefficiency and nepotism, etc. If a person makes any imputation so as to cause any special injury to the property of the Board then the Board can maintain a complaint under 5.500..."

13. While committing the offence of defamation an accused actually causes an injury to the reputation of a person as he intends to lower down the status of a person in the estimation of his fellow being or within the circle in which said person moves or enjoys a good reputation. In a way damage is caused to the property of a person. The word injury is defined under section 44, P.P.C. which says-- "

44. The word "injury" denotes any harm whatever illegally caused to person, in body, mind, reputation or property."

14. From the above discussion I feel it is clear that a person includes not only an individual but a body or association, a company and an offence of defamation can also be committed against such person/juristic person or body of a persons collectively.

15. Now the second important aspect i.e. the person aggrieved is to be defined and discussed who according to the provision of section 198, Cr.P.C. can lodge a complaint in cases of defamation. The word aggrieved has not been defined in Pakistan Penal Code. Its literal dictionary meaning if seen the aggrieved person and aggrieved party has been defined in Blacks Law Dictionary in its 5th Edition one whose legal rights is invaded by an act complained of.

16. In order to consider if a person is aggrieved of an imputation levelled against, facts and circumstances of each case is to be looked into. In a case cited as Shabana Mustafa v Dr. Muhammad Khalid and others (PLD 2001 Lahore 98) the Hon'ble Single Bench of this Court in a case of defamation against a lady held

"Where an imputation is made regarding moral character of a female who is living in the shelter of her father, brother or husband, a compliant can be brought undoubtedly by such male person, because in that eventually the male kith and kin in whose abode she is residing is also indirectly affected by such imputation."

17. In another judgment cited as Hosseinbhoy Ismailji v. Emperor (AIR 1934 Sindh 1880) it was held-- "Criminal P.C. (1898), S.198

"Aggrieved"

Whether person is aggrieved should be determined with reference to nature of accusation

Person should have directly or indirectly suffered in his own reputation."

18. Similar view has also been taken in another judgment cited as Surajmal v. Ramnath (AIR 1982 Nagpur 58) wherein it was held: "Whether complainant is person `aggrieved" must be decided on facts of each case--Adopted son is a person aggrieved by the defamation of his adoptive mother"

19. Here in this case if the contents of the complaint and the cursory statement recorded by the learned trial Court are seen it has specifically in so many words was agitated by respondent No.1-complainant that due to imputation/defamatory material published by the petitioner-accused not only Jang Group of Newspapers/Companies suffered loss to the reputation the complainant-respondent No.1 in his personal capacity was also defamed. Respondent No.1-complainant in his statement at preliminary stage specifically state

20. At another place during statement before the learned trial Court the complainant-respondent No.1 further stated as under--

21. In the light of above discussion and law as discussed above, if the facts and circumstances of the present case are seen the respondent N0.1--complainant was able to make out prima facie case showing him as an aggrieved person as defined under section 198, Cr.P.C. entitled to initiate the complaint for the commission of alleged offences of defamation against the petitioner-accused.

22. The Judgment cited as Aslam Akbar Kazi and 3 others v. Gulzar Ahmad Channa and another (2003) PCr.LJ 1892) by the learned counsel for the petitioner whereby while discussing the provision of section 198-A, Cr.P.C. the complaint was found liable to be quashed is 'tot applicable on the facts and circumstances of the present case. Under section 198-A, Cr.P.C. a public servant if in his official capacity is defamed then he has to file a complaint through public prosecutor as well as with the previous sanction of the concerned Government.

23. In the circumstances, the impugned order passed by the learned trial Court does not call for interference by this Court while exercising its revisional jurisdiction. This petition merits dismissal which is hereby dismissed. N.H.Q./M-150/L Petition dismisse