This application under section 561-A, Cr. P. C. Has been preferred for quashment of the proceedings in the Criminal Case No. 72 of 1980, pending in the Court of the learned Civil Judge & F. C. M.
Ratodero.
2. The facts of the case are that the complainant who is respondent No. 2 filed a direct complaint under sections 500, 501 and 502, P. P. C. Which reads as under :- "(1) That the complainant is the owner of `Sangeet' Cinema and Rice Mill at Ratodero and holds respectable position in the locality.
(2) That the complainant installed `Sangeet' Cinema on his own plot No. 762/2 Ward `B' on 10-3- 1972 under no objection certificates issued to him by the District Magistrate Larkana after observing the requisite formalities and the Cinema was in operation.
(3) That the above-named accused at the instance and instigation of one, Mr. Abdul Wahid Soomro son of Haji Allah Bux Soomro and in connection with him managed to harm the reputation of the com--plainant.
(4) That on 28-4-1978 one article appeared in the weekly 'Hari' Sindhi newspaper of Ratodero, of which accused No. 1 is Editor, accused No. 2 isManaging Editor and the accused No. 3 is news reporter wherein information were made as follows :- Head Lines Attempt of doing Shahid (demolish) a century old mosque.
(i) In which it is published that the complainant had constructed Cinema on the portion of mosque plot, further the District Magistrate Larkana had cancelled the permanent performance licence for ever.
(ii) Complainant have let off the water of Cinema with intention to damage the walls of the mosque near Cinema. Lastly the District Magistrate and Colonel ascertained from public that Cinema's licence would be cancelled.
(5) That the aforesaid imputations levelled against the complainant by the accused, have provocated the feelings of Muslims and instigated public to stand and voice for "Jehad", have created ill and hatred feelings against the complainant and thereby complainant has lost reputation in: the eyes of public.
(6) That the imputation and defamatory matter which appeared in the Weekly 'Hari' Sindhi newspaper, which hurt the feelings of the complainant who was so much distressed that he could not dare to file a suit earlier.
(7) That the complainant had sent a notice on 5-12-78 under registered A. D. Cover and the same was served upon them.
(8) That the complainant approached the Police Station on 3-7-80 but the S. H. O. Refused to register report, hence this complaint.
(9) That the accused Nos. 1, 2 and 3 published the said imputation con--cerning the complainant's status intending to harm or knowing to harm or having reason to believe that the said imputation would harm the life and reputation of the complainant and as such committed offence in defaming the complainant and hence action to be taken against them according to law.
It is therefore prayed that warrant be issued against each of them and they be placed on their trial according to law.
That complainant's prayer is in the interest of justice.
(Sd.)
Complainant."
3. The learned Civil Judge & F. C. M. Ratddero, after recording the statement of the complainant under section 200, Cr. P. C. Issued the process against the applicant under sections 295-A, 298, 500 and 501, P. P. C. On 10-7-1980.
4. Mr. Nooruddin Sarki, the learned counsel for the applicants contends that no offence under any of the section is made out against the applicants. It has been pointed out by him that the publication of the news item was made in $o many daily newspapers of Karachi, i.e. Jang, Jasarat, Sadaqat and `Hurriyat' between 24-4-1978 and 27-4-1978. The respondent No. 2 did not file any complaint or application against any of the Editor, publisher or printer of any of the above- said newspapers. He however filed the com--plaint against Editor' and Managing Editor of the weekly `Harri' only. This weekly also published the same news item in it's issue on 28th April 1978. It has also been contended by him that in spite of the fact that this news-item appeared in the `weekly Harr?
In 1978 and the respondent No. 2 gave such notice to the applicants on 5-12-1978 still no complaint was filed against them till 6th July 1980. There is absolutely no explanation for such inordi--nate delay in filing of the complaint. The complainant has actually filed the complaint when the Chairman of the Municipal Committee Ratodero by a resolution on 1-7-1980 approached the Government of Sind that the cinema near the mosque being against Islamic principles should not be allowed to run and this infuriated the respondent No. 2 who filed the complaint against the applicants on 6-7-1980. Moreover the body of the complaint does not show if any one conveyed to the complainant that by reading such news, his reputation has been affected or an impression has been created which was nothing short of defamation of the respondent No. 2. Actually, the matter involving the publication pertained to an issue which involved a matter of public interest in which permission to run a cinema in violation of the Cinema--tograph Rules was projected and no offence whatsoever has been committed by such publication. But the real facts have been revealed which are supported by the subsequent orders of the District Magistrate, Assistant Commissioner and S. D. M. Ratodero who have stopped the running of the cinema on public demand. He places his reliance on;---
(i) AIR 1924 All. 299 and
(ii) AIR 1962 Madh. Pra. 382.
6. Mr. Ghulam Ali Khokar, the learned counsel appearing for the respondent No. 2 has straightaway contended that the offences under sections 500 and 50). P. P. C. Are prima facie made out against the applicants though process under sections 295-A and 298, P. P. C., was not called for under the circumstances of the case. It has also been contended by him that the applicants had alternative remedy by approaching the trial Court under section 294-A, Cr. P. C. And it would be premature to quash the proceedings in spite of the fact that the complaint has been lodged after nearly more than two years. He relied upon;
(i) PLD 1975 Kar. 231,
(ii) 1980 P Cr. L J 561, and
(iii) 1981 P Cr. L J 230.
7. Mr. Niaz Ahmad Khan, the learned counsel appearing for the State has contended that the issue involving publication is based on the facts which do not constitute any offence against the applicants and their case will be covered by Exceptions 5, 9 and 10 of section 499, P. P. C. There being no case against the applicants under any of the sections, the order issuing process is abuse of the process of the Court and the proceedings of the case pending before the Court are liable to be quashed under the circumstances of the case.
8. I have considered the contentions of the learned counsel for the applicants, respondent No.. 2 and the State. I have also gone through the citations referred to by them. The complaint has been filed after nearly more than two years of the publication of the news item in the newspaper. There is also no dendal of the fact that same news item had appeared in so many other Dailies of the country but the complainant only preferred to file complaint against the applicants who are the Editor and the Managing Editor respectively of the weekly Hari of Ratodero. The issue of course involves a matter of public interest and the licence issued to the applicant has been cancelled considering it in violation of the Cinematograph Rules. There is nothing on the record to explain as to why the respondent No. 2 did not file the complaint for long two years. It is also true, that the complaint has been lodged after a resolution of the Municipal Committee, Ratodero on 1-7-80.
Therefore possibility that the complainant has filed this complaint with a view to harass the applicants cannot be ruled out under the circumstances of the case. Even otherwise there is absolutely no case made out by the respondent against the applicants. The condition precedent for such offence of defamation lies in the dissemination of the harmful imputation which is not at all available in the news item involved in this case. I therefore do not feel that any purpose in furtherance of the justice will be served if the proceedings are allowed to be continued in the trial Court. I am, therefore, of the view that issue of process on such a complaint is abuse of the process of the Court and this is a fit case for quashment of the proceedings of the case.
9. In the result I allow this application and quash the proceedings of Cr. Case No. 72 of 1980, Ghulam Hussain Bhatti v. Aitbar Ali and others, under sections 295-A/298/500/501, P. P. C. Pending in the Court of Civil Judge & F. C. M., Ratodero.