ABDUL LATIF KHAN, J.---Impugned herein is the judgment dated 8-4-2014 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Chakdara, Dir Lower, whereby appellants Shah Faisal, Muhammad Israr and Jalil, were convicted under section 500, P.P.C. And sentenced them to undergo five years' S.I.
2. Mst. Nishat, complainant, lodged complainant before the Court of Additional Sessions Judge, Chakdara, against Shah Faisal, Abdur Rahim, Jalil and Israr for commission of offences under sections 3/7/22 of the Qazf (Enforcement of Hadood) Ordinance, 1979, before the Additional Sessions Judge/Izafi Zila Qazi, Chakdara, with the allegations that they being reporters of daily newspapers 'Aaj', `Mashriq', `Aaj Kal' and `Jinnah' have published defamatory news items in their respective newspapers regarding her moral turpitude, which, after recording her statement under section 200, Cr.P.C, was sent to Illaqa Qazi, Chakdara, under section 202, Cr.P.C. For inquiry and report. On the receipt of report, learned Additional Sessions Judge summoned the accused.
Accused. Shah Faisal, Muhammad Israr and Jalil appeared before the court while Abdur Rehman was proceeded against under section 512, Cr.P.C. And it was on 20-12-2008, when learned Sessions Judge found that offence under section 500, P.P.C. Has been committed, sent the case to Illaqa Qazi for trial, who after framing of charge and recording statements of parties, convicted and sentenced accused Shah Faisal for one month while accused Muhammad Israr and Muhammad Jalil were acquitted of the charge on 4-10-2010, which was challenged, however, learned Sessions Judge, vide order dated 22-11-2010, accepted the appeal and the case was remanded back to the trial Court for trial de novo. The parties filed appeal/revision before this Court, which was accepted and the case was remanded to Sessions Judge for trial as the offence under section 500, P.P.C.
Was triable of Court of Session. After remand, learned Sessions Judge, vide judgment dated 8-4- 2011, convicted and sentenced the appellants as stated to above, hence, the present appeal.
3. Learned counsel for the appellants contended that learned trial Court has not fulfilled the requisite formalities and has taken the cognizance of the offence as original jurisdiction as the same has not been sent to it by Magistrate under section 193, Cr.P.C. He argued that the evidence produced by the complainant is full of contradictions and she has badly failed to prove her case but learned trial court to mis-]appreciation of evidence on record convicted the appellants without any cogent reasons.
4. As against that learned counsel for the complainant contended that the appellants have levelled imputation regarding moral character of the complainant, who was living with her husband and further contended that she has produced sufficient evidence to establish the guilt of the appellants and, as such, supported the impugned judgment of conviction.
5. I have considered arguments of learned counsel for parties and have gone through record of the case.
6. The record reveals that on 19-3-2008 Shah Faisal and Abdur Rahim, press reporters, informed the local police that wife of Taj Muhammad, namely, Mst. Nishat, is of easy character and one Afghan refugee was present in her house. The information was recorded by the police in Daily Diary No. 12, Exh.P.W.3/10. On the same date, the local police and the press reporters, brought a person, namely, Abdur Rehman to the Police Station, who was searched but nothing incriminating was recovered from him, however, he was booked under sections 107/151, Cr.P.C. And in this respect entry was made in Daily Diary No.13, Exh.P.W.3/9. The episode was also published in the daily newspapers. On 11-10-2008, Mst. Nishat, lodged a complainant before Sessions Judge against Shah Faisal, Abdur Rehman, Jalil and Israr, who were reporters of different newspapers, with the allegations that Shah Faisal and Abdur Rahim, who were residing in the same Mohallah with her, have with her husband, who was performing his duty. As Security Guard in Telenor Tower, and imputed baseless allegations regarding her moral character despite the fact that she is respectable Muslim, aged about 50/55 years besides a patient of Jaundice in order to disgrace her. In order to prove her case, she appeared as P.W.3 and supported the contents of complaint and deposed that Rehman Ullah had come to her house to repair the TV dish but the appellants due to with her husband brought the police and also published scandalous news in different newspapers against her. She also produced Wazir Khan as P.W.1 and Amin ur Rehman as P.W.2 and they also fully supported her version and deposed that the statements published in the daily newspapers are wrong and baseless as the complainant is having good moral character and she has been residing in the shelter of her husband. Statement of Anwar Said Khan, SHO, was recorded as C.W.1, who also brought on file, Exh.P.W. 3/10 and Exh.P.W.3/9, and deposed that he has arrested one Rehman Ullah on the information of press reporters, namely, Shah Faisal and Abdur Rehman. The complainant and the other P.Ws. Were cross-examined by the defence but no damaging aspect of the case was extracted from their mouth.
Defamation has been defined in section 499, P.P.C. Which provides that 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 except in the cases if it is in the public good or is made in good faith. Admittedly, defamatory statements have been published in different newspapers, Exh.P.W.3/1 to Exh.P.W.3/3, for which the appellants were the reporters and it has also been proved that it was the appellant Shah Faisal, who informed the police and blamed the chastity of complainant; therefore, they are liable for defamation. The appellants have failed to prove that the statements published in the newspapers or given to the police were in good faith or public interest and instead their intention was to disgrace her. From the evidence available on record, I am persuaded to hold that the conclusion drawn by the Court below regarding the guilt of appellants in the commission of above offence is based on sound and cogent reasoning, warrants no interference.
7. The contention of learned counsel that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless case has been sent to it under section 193, Cr.P.C, is misplaced because section 198, Cr.P.C. Provides procedure for prosecution for breach of contract, defamation and offences against marriage and according to the above provision, 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. No doubt, section 500, P.P.C. Falls in Chapter XXI of Pakistan Penal Code and, as such, the procedure provided in section 198, Cr.P.C. Has to be followed.
In the case in hand, the complainant herself lodged a complaint and the offence under section 500, P.P.C. Is exclusively triable by the Court of Session and the Court of Session, after recording statement of complainant under section 200, Cr.P.C. On 11-10-2008, sent the complaint to Illaqa Magistrate for enquiry under section 202(2), Cr.P.C. And on receipt of report from Magistrate on 27- 10-2008 summoned the accused.Under section 202, Cr.P.C. Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance, or which has been sent to it under section 190 or 192, may, if it thinks fit, for reason to be recorded, postpone the issue of process of compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation and proviso (2) of the Section, ibid, provides that a Court of Session may, instead of directing an investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint and learned Sessions Judge has committed no illegality while taking cognizance of the offence as he was authorized to take cognizance of the offence under section 500, P.P.C. For which special procedure has been given in Chapter XVI of the Criminal Procedure Code and it has been specifically provided in section 193(1), Cr.P.C. That except as otherwise expressly provided by this 'Code' or any other law for the time being enforced no court of Session shall take cognizance of any offence as a Court of original jurisdiction and as in Chapter XVI of the 'Code' there is special procedure for the complaint cases, therefore, the trial Court has committed no illegality while taking cognizance of the offence under section 500, P.P.C. Wisdom is also derived from case Fazal Karim and others v. Muhammad Boota and another (1991 SCMR 2157).
8. As far as the quantum of sentence is concerned, the same appears to be harsh; therefore, the same is reduced from five years to two years. This criminal appeal is partially accepted.