ASLAM RIAZ HUSSAIN, J.-The facts giving rise to the present petition are briefly that Mr. Habibul Wahab El-Kheiri wrote an article in the Weekly `SHAFAT'. Lahore, dated 30th of April 1978, about the malpractices of the officials of the Department of National Savings and the conduct of various officials of the said ,Department was criticised by name. One of the officials criticised by Mr. El- Kheiri, namely, Ch. Saeed Ahmad, Joint Director, National-Savings, Lahore Region, Lahore, instituted criminal pro--ceedings under sections 500, 501, 502 and 504, P. P. C. Against the petitioner as well as the Printer and Publisher of the Weekly `SAHAFAT'. The case is pending in the Court of Ch. Aurangzeb M. I. C., Lahore. Mr. El-Kheiri petitioner challenged the jurisdiction of the learned trial Magistrate and submitted that the question of jurisdiction to hear the matter should be decided by him, first. His contention was that the learned trial Magistrate did not have the jurisdiction to try the, offence in view of the provisions of section 198, Cr. P. C. But his request was not accepted. He, therefore, made an application, under section 561-A, Cr. P. C. For quashment of the aforementioned proceedings, before the Lahore High Court. The application was, however, dismissed by a learned Single Judge vide order dated 22nd of April 1979. Hence the present petition for special leave to appeal.
2. We have heard Mr. El-Kheiri, Advocate, who has appeared in person. To appreciate the contentions raised by him it would be useful to refer to the relevant portions of sections 198 and 198-A, Cr. P. C. Which are reproduced below : Section 198, Cr. P. C.
"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 1st Proviso . . . . . .. .
2nd Proviso . . , . , .
Section 198-A, Cr. P. C.: "(1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Pakistan Penal Code (Act XLV of 1860) is alleged to have been committed against the President, the Prime Minister, a Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister or any public servant employed in connection with the affairs of the Federation or of a Province, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
(2) Every, such complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to accused of the offence alleged to have been committed by him.
(3) No complaint under subsection (1) shall be made by the Public Prosecutor accept with the- previous sanction (a) in the case of the President or the Prime Minister or a Governor, or any Secretary to the Government authorised by him in this behalf; (b) in the case of a Federal Minister or Minister of State, Chief Minister or Provincial -Minister, or any Secretary to the -Government - authorised in -this behalf by the Government concerned; (c) in the case of any public servant employed in connection with the affairs of the Federation or of a Province, of the Government concerned.
(4) No Court of Session shall take cognizance of an offence under sub section (1), unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(5) When the Court of Session takes cognizance of an offence under subsection (1) then, notwithstanding anything contained in this Code, the Court of Session shall try the case without the aid of jury or assessors and in trying the case shall follow the procedure prescribed for the trial by Magistrates of warrant cases instituted otherwise than on a police report.
(6) The provisions of this section shall be in, addition to, and not in derogation of those of section 198."
3. Mr. El-Kheiri submitted that sections 500, 501 and 502, P. P. G., which relate to `defamation', fall in Chapter XXI of the P. P. C. He contended that in view of the provisions of section ly8-A, Cr. P. C., which was inserted in the Cr. P. C. By Act XXV of 1974, the forum for hearing and deciding cases of defamation against persons holding certain high offices, as well as public servants generally, would, now by the Court of Session and not a Magistrate's Court. The petitioner also pointed out that according to the said section the Court of Session can take cognizance of such an offence only upon a written complaint made in that behalf by the Public Prosecutor, and that even a Public Prosecutor is not competent to file a complaint, in such cases, without the sanction of the Central or the concerned Provincial Government, as the case may be.
4. In support of his contention he laid stress on the words "Notwith--standing anything contained in this Code'', at the beginning of subsection (1) of section 198-A, Cr. P. C. And argued that whereas, earlier, by virtue of section 198, Cr. P. C., offences under Chapter XXI were triable by a Magistrate of the 1st Class but now, after the introduction of section 198-A, such offences have been made triable exclusively by a Court of Session. He argued that the effect of subsection (6) of section 198-A, which provides that the provisions of this section "shall be in addition and not in derogation of the provisions of section 198" is only that the aggrieved person, i.e. The person defamed, can also file a complaint before the Court of Session. He, therefore, contended that the learned Magistrate seized of the -matter at present has no jurisdiction to proceed with the private complaint instituted against him by Ch. Saeed Ahmad, respondent.
5. We have carefully considered these contentions but cannot bring ourselves to agree with the same.
Section 198, Cr. P. C. Provides that .No Court shall take cognizance of an offence falling under :----
(1) Chapter XIX of the Cr. P. C. (i.e. Offence of breach of contract to attend on and supply wants of helpless person);
(2) offences under sections 493 to 496 of Chapter XX (which are offences relating to marriage); and
(3) offences under Chapter XXI, i.e. Offences under sections 500, 501 and 502, which relate to defamation); except on a complaint made by a person aggrieved by the defamation. In other words, although in the case of the majority of the offences under the Penal Code the machinery of law can be moved by any one who has seen the commission thereof has any knowledge about its commission, but in the case of the offences under Chapters XIX, XX and XXI mentioned in section 198, P. P. C. Only the person who is aggrieved by the commission of any of those offences can move the Court. The 'Court' competent to try such offences has, however, not been specified in that section, because the trial Court is to be determined by reference to the entry in column 8 of the 2nd Schedule to the Cr. P. C., against the relevant section of the P. P. C., which in the case of the offences mentioned in section 198, Cr. P. C. (i.e. Offences under Chapters XIX, XX and XXI) could be 'any Magistrate' or 'a Magistrate of the 1st Class' or the 'Court of Session' depending on the offence.
6. Section 198-A, Cr. P. C., however relates only to offences under Chapter XXI of the Penal Code (i.e. Offences relating to defamation), where the person defamed is the President, the Prime Minister, a Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister or any public servant employed by the Federation or the Provinces, in respect of his conduct in the discharge of his public functions. Obviously the object of enacting section 198-A, Cr. P. C. Was that where the holder of any of' offices mentioned in the said section, or a public servant, is defamed, butt is reluctant to go to Court, by filing a private complaint, either because of lack of means or for any other reason, the relevant Government may, itself, move the machinery of law, through a complaint by the Public Prosecutor. Keeping in view the high office of some of the persons men--tioned in the section and that the fact that the Government is to initiate the proceedings through the Public Prosecutor, the forum for the trial has been specified as the Court of Session rather than a Magistrate of the 1st Class as - mentioned in column 8 of the IInd Schedule to the Cr. P. C. Against the offences under Chapter XXI, P. P. C.
7. The words "Notwithstanding anything contained in this Code" occurring at the beginning of subsection (1) of section 198-A, Cr. P. C. Are meant only to create an exception with regard to the pre-condition' imposed on the taking of cognizance of cases by a Court of Session. They do not relate to the provisions of section 198, Cr. P. C., as argued by the petitioner, but refer to the provisions of subsection (1) of section 193, Cr. P. C. As it stood before its amendment by the Law Reforms Ordinance, 1972. It would be noticed that at the time when section 198-A, Cr. P. C. Was inserted in the Cr. P. C. By Act XXV of 1974 on 24th of April 1974, (i.e. Before the enforcement of the Law Reforms Ordinance on 26th of December 1975), section 193, Cr. P. C. Required that a Court of Session could take cognizance of a case only when the accused was committed to it for trial.
Section 198-A, Cr. P. C. However created an exception by providing that where the person defamed is one of those mentioned in that section, the Court of Session could take cognizance directly upon a complaint in writing made to it by the Public Prosecutor.
8. The result is that although the concerned Government can now prosecute any person for the defamation, inter alia, of public servants, by itself filing a written complaint through the Public Prosecutor, but by virtue of the provisions of subsection (6) of section 198-A, Cr. P. C. The right of the 'aggrieved person' under section 198, Cr. P. C to file a private complaint is maintained in tact, so that if the Government does not choose to initiate proceedings to vindicate big honour, he can himself move the relevant Court by filing a private complaint. It may, however, be mentioned again that in that case the trial Court would be that specified in the 1lnd Schedule to the Cr. P. C. Against offences under sections 500, 501 and 502, P. P. C., namely a Magistrate of the 1st Class.
The petition is consequently dismissed.
Before parting with the case it may be observed that section 198-A, Cr. P. C. Requires to be amended in view of the fact the commitment proceedings have been abolished by the Law Reforms Ordinance which was enforced on 26th of December, 1975.