1. ' In this case the applicants Zahri Khan and his wife Mst. Sahibi have prayed for abashment of defamation proceedings under section 500, P. P. C. Initiated by respondent No,
2. Mr. Y. S. Hashmi, who claims to be the Honorary Secretary of Pakistan Post Office Employees Cooperative Housing Society Limited, Karachi, in the Court of Additional City Magistrate, Ferozabad, Karachi, by filing a complaint dated 1st November 1978, whereupon, the statement of the complainant was recorded on 1st November 1978, and on the same day the process was ordered to issue to the applicants.
2. ' The contents of complaint are briefly described as under :-
(i) That Mst. Sahibi was the co-owner, with other relations, of certain survey numbers of land measuring about 84 acres situated in Deh Gujroo, Tapoo Songal, Karachi. She is alleged to have conferred, upon her brother Mr. Abdul Rehman, the power to sell her share in the said land and had executed a registered power of attorney dated 30th June, 1963.
(ii) The said attorney agreed to sell 54 acres of the said lands including the share of Mst. Sahibi in favour of Pakistan Pos.t Office Employees Co-operative Housing Society Limited, Karachi on 15th May 1971. Earnest money of Rs, 1,15,000 is alleged to have been paid.
(iii) Again on 14th May 1976 the same attorney entered into another agreement of sale with the same society in respect of rights of Mst. Sahibi and 2 others in respect of an additional piece of land measuring 526 acres in the same deh. Earnest money of Rs, 1,60,000 is alleged to have been paid. The complainant alleged that before entering into these 2 agreements he had personally contacted the applicants Zahri Khan and Mst. Sahibi and appraised them of the deal.
(iv) Thereafter, the complainant is alleged to have made a total payment of Rs, 18,49,000 to Mst.
3. Sahibi, her attorney and other co-owners towards sale consideration of the said lands.
(v) The said survey numbers were compulsorily acquired by the Government and in their stead certain new survey numbers in Scheme 33 were allotted to the co-owners including Mst. Sahibi.
(vi) On 16th February 1976 one of the co-owners of land Mr. Abdul Aziz Gabol died. Thereafter, the Post Office Employees Housing Society offered very substantial sum of money, over and above the one already agreed upon, to all the co-owners, but Zahri Khan, husband of Mst. Sahibi out of his greed did not agree to the same while the other co-owners agreed. Complainant personally appraised Mst. Sahibi of the crises, but she also failed to perform her contractual obligations. The Society was therefore forced to enter into a separate agreement with other co-owners on 10th April 1978, and agreed to pay them an additional sum of Rs, 7,50,000. The sale-deed was executed on 21st June 1978, where Mst. Sahibi was not a party.
(vii) That on 13th May 1978, Mst. Sahibi at the behest of her husband got a scandalous and defamatory notice published in Daily Jang, which reads as under :-{{URDU TEXT}}
(viii) Complainant continued that the notice has been published in a newspaper of wide circulation as accused had reason to believe that such imputation will harm the reputation of complainant and that complainant has wide membership and its managing body consists of senior Government officials.
(ix) The complainant alleged that by the publication of defamatory, malicious and mischievous notice, the prestige of the society has been badly damaged and the reputation and integrity of all members, particularly the complainant, and its Chairman Mr. Suleman and its Treasurer Mr. Asadullah Khan has been greatly harmed and jeopardized in the eyes of the members and the public at large.
(x) That the notice reflects upon the management of the society and it opened a door for query by members who want to know whether there was any contract at all and whether any payment had been made for land at zero mile as shown in the audit report already circulated.
(xi) Complainant claimed special damage having been caused to the society.
(xii) In the last para the complainant alleged that Zahri Khan and Mst. Sahibi .Work in close collaboration and in order to harm the reputation of the society they are busy night and day telling the members of the society and public that they never appointed Abdul Rehman as their Attorney and they are branding those who are managing the affairs of the society as cheats, swindlers and fraud, etc. ' The complainant in his statement under section 200 of Cr. P. C. Gave the history of the dispute and stated that the publication of notice by Mst. Sahibi has affected reputation of society as the members are doubting the existence of any transaction with Mst. Sahibi and accusing the office- bearers of misappropriation of accounts. He asserted that accused were making propaganda against the society and were alleging that there was no agreement with them and the agreement is false. He stated that he had published a notice in Dawn, Karachi dated 1st November, 1978 vindicating the position of the society. He stated that society has passed a resolution that as prestige of the society is at stake in the eyes of general public legal action for defamation be taken.
4. However, the allegations of 'Cheats, Swindlers and Fraud' were not repeated in this statement.
5. ' The A. C. M. Passed the following order on 1st November, 1978 :- "Examined the complainant. Issue summon to accused Mst. Sahibi and accused Zahri Khan under section 500, P. P. C. Fixed for 22nd November 1978."
6. ' I have heard Mr. M. H. Shah for applicants and Mr. Sami Ahmed for respondent No,
2. None appeared for the State.
7. ' Mr. Shah contends that (1) contents of notice are not defamatory at all, and in any case Mst. Sahibi had a right to issue the said notice to safeguard her rights under Exception 9 to section 499 P. P. C.
8. ' He also contended that (2) complaint against Zahri Khan was completely uncalled for as he was not connected with the land in any manner.
9. ' He further contended that (3) the complaint was merely a device to compel Mst. Sahibi to enter into an agreement of sale of her share in the land, which she was refusing, and that in any case the civil suit for specific performance of the contract had been filed by the society and in such circumstances the complaint was an abuse of the process of the Court.
10. ' Mr. Sami Ahmed on the other hand referred to the contents of power of attorney, 2 agreements of sale of 1971 and 1975 and the agreement of 10th April 1978 and argued that (1) in the circumstances of the case the notice in question was defamatory in character as it damages the credit and reputation of the society.
11. ' He further argued that applicants should have resorted first to the provisions of section 249-A of Cr. P. C. Before resorting to section 561-A, He referred to various Supreme Court authorities to the effect that if a specific remedy is provided by the Criminal Procedure Code then resort to the extraordinary and special provision of section. 561-A of Cr. P. C. Should not be allowed. He did not deny the allegation of filing of a suit for specific performance of the contract by the society, but asserted that the same had no bearing on the complaint which was filed to sustain the good name and prestige of the society.
12. ' Mr. Sami referred to PLD 1976 SC 461 where the case pending under provisions of Foodstuff Control Act was not quashed on merits. He also referred to PLD 1963 SC 237 where it was observed that where appropriate remedy is available under an express provision of law then resort to section 561-A of Cr. P. C. Was not justified. But, it was also observed in that ruling that section 561-A is limited to abuse of process of Court and it cannot be regarded as wide enough to give same powers to High Court as provided under sections 435-439 of Cr. P. C. In PLD 1965 SC 287 it was observed that to attract provisions of section 561 of Cr. P. C. The abuse must be of the process of the Court and not of the investigation agency. Again in PLD 1967 SC 317 it was reiterated that section 561-A of Cr. P. C. Should not be invoked where express remedy is available. It was also observed that High Court should be reluctant to use powers under section 561-A of Cr. P. C. Unless it can be shown that the charge even if believed will not disclose any offence. Lastly he referred to 1979 SCMR 94, where the Supreme Court observed that in view of the provisions of section 249-A of Cr. P. C. Resort to section 561-A of Cr. P. C. Is not justified.
13. ' I have no option, but to follow the Supreme Court decisions. But Mr. M. H. Shah referred to 1968 SCMR 1256 reprinted in 1971 SCMR 698 the case of Raja Haq Nawaz, where Supreme Court observed that normally every case should be allowed to proceed in ordinary course, but each case must be decided on it's own facts. It was further observed that if the purpose of the case is not to advance the cause of justice, but is designed to harass accused then it should be quashed. This case has, therefore, again made it possible for the High Court to review the facts of each case and to quash the same if it is designed to harass the accused.
14. ' Mr. M. H. Shah also referred to 1971 SCMR 613 where the proceedings which were of a civil nature were quashed. He further referred to PLD 1976 Lah. 1548, 1977 P Cr. L J 565, PLD 1971 Kai. 937 and 1966 P Cr. L J 181 where the proceedings had been quashed on the facts of each case. In respect of 1979 SCMR 94, Mr. M. H. Shah pointed out that after the judgment of that case their Lordships of the Supreme Court have admitted a Criminal petition of special leave to appeal of one Bashir at Karachi wherein the order admitting the petition they have observed that the view of the Supreme Court in 1979 SCMR 94 requires reconsideration. Counsel contended that the position in respect of application of section 249-A of Cr. P. C. Is therefore, not concluded by the Supreme Court.
15. On perusal of the contents of notice published by Mst. Sahibi, I am not able to read any imputation, which could harm the reputation of the society. It is an ordinary notice denying the existence of any agreement. Such notices are issued by the affected parties daily and nobody takes any serious notice of the same. Publication of such notice does not lead to any conclusion that any party against which such notice has been issued is either dishonest or that it has misappropriated the money of it's members. In any case in this notice there is a simple assertion of the stand taken by Mst. Sahibi that she denies having entered into any agreement with Post Office Employees' Society or having authorized any one else so. Why should this notice be construed as imputing any dishonesty or lack of integrity in respect of the society or its office-bearers. There are no words to that effect in this notice and if the members or the society misconstrue the same then it is their own action for which they cannot hold Mst. Sahibi Bibi or her husband responsible. No reasonable person would regard this notice as defamatory to the society or its office-bearers and in fact if such a notice is regarded as defamatory then it would become almost impossible for the litigants to publicly state their position in respect of a particular contract if they wish to repudiate the same.
16. At the most this notice would amount to repudiation, if any and it could be not regarded as throwing any mud on the society or its office-bearers, therefore, the issues of process on the basis of this notice was completely unjustified and amounts to an abuse of the process of the Court particularly in view of the fact that the whole purpose of the proceedings seems to be to browbeat Mst. Sahib Bibi to enter into a contract with the Society on the same lines which other co-sharers had entered into on 10th April 1978. The whole tenure of the complaint is directed against the refusal of Mst. Sahib Bibi to enter into an agreement and to honour the agreements of 1971 and 1975 It has been clearly stated at the bar by the applicant and not denied by the respondent that a civil suit has already been filed for specific performance of the contract against Mst. Sahibi by the Society, and therefore, also the continuation .Of this proceedings in the Criminal Court would be completely unjustified. Moreso because the Managing Committee of the Society had resolved to file these proceedings as it affected the prestige of the Society. The process of the criminal Court is not to be used for enhancing the prestige of the Society. Another important factor to be noticed in this regard is that the Society itself has admitted that it had entered into an agreement with other co-sharers on 10th April 1978 and the Society had paid extra amount of Rs, 7,50,000 to those co- sharers, but Mst. Sahibi had refused to be associated with the same, and therefore, she may have considered it necessary that she should clarify her position by issuing a notice. I am not here suggesting for a moment that the stand taken by Mst. Sahibi is correct as the same shall have to be determined by a Civil Court on the basis of evidence produced before it. But I can only state that according to exception 9 of section 409 of C. P. C. Any person can make an imputation in good faith to protect his interest, and therefore, if Mst. Sahibi felt that she had not entered into an agreement with the society or had not executed a power attorney in favor of someone else in respect of her share then she could issue such a notice to protect her interests and in that case even if there was any imputation in that notice then the same would be protected.
17. ' I am, therefore, convinced that the notice in question did not involve any imputation and hence the complaint was merely designed to browbeat the applicant into submission, and therefore, it was an abuse of the process of the Court. 1 may state here that oral allegations which are attributed to the applicants in para. 20 of the complaint, where the applicants are alleged to have called the persons managing the affairs of the society as "Cheat, Fraud and Swindlers", etc. Are not found in the statement of complainant recorded under section 200, Cr. P. C. And therefore those allegations were not substantiated by the complainant on oath or he did not attach any importance to them, and in any case no particulars were disclosed in respect of those allegations as to when they were made and to whom they were made and therefore, they cannot be taken any serious note of, and had to be completely ignored.
18. ' In view of the above discussion the proceedings under section 500, P. P. C. Pending in the Court of Additional City Magistrate (Ferozeabad and Bahadurabad), Karachi, against the applicants are hereby quashed.