MUHAMMAD SALEEM JESSAR, J.---By means of instant Criminal Revision Application the applicants have assailed the Order dated 13.01.2018 passed by learned IXth Additional District and Sessions Judge, Karachi South whereby Direct Complaint filed by respondent No,1/complainant under Section 200, Cr.P.C. has been registered and bailable warrants have been ordered to be issued against the applicants in the sum of Rs.50,000/- each for their attendance before the trial Court.
2. Precisely, the facts giving rise to the filing of instant Criminal Revision Application are that respondent No,1 filed complaint under Section 200, Cr.P.C. alleging therein that he is an investigation journalist and joined ARY News as Head Investigation/Analyst on 1st December, 2014 and prior to that he was a partner with 'The Express Tribune' and 'International New York Times' and also hosted a talk show. His primary focus has been to unveil scams of corruption, misuse of authority, militancy and terrorism. Applicant No,1 Mir Shakil ur Rehman is the Group Chief Executive and Editor in Chief, so also the owner of the Daily 'Jang' and Daily 'The News' whereas respondent No,2 is his son and is CEO of Geo T.V. and also a co-owner of Jang and Geo Group.
It was alleged that a complaint was filed on 11.04.2016 by J.S. Bank against respondent No,1 in which process had not yet been served upon respondent No,
1. It was further alleged by respondent No,1/ complainant in his complaint that 18.06.2016, a misleading and false news appeared in Daily Jang in connection with the complaint filed by J.S Bank against respondent No,
1. According to respondent No,1, the said news was got published by the applicants with mala fide intention to defame and disrepute him. The heading of the said news was "Jhoot Bolo, Pagri Uchalo, Adalat Saboot Mangay to Maafi Mang Lo". On 19.06.2016, another misleading news appeared in Daily Jang with the heading, "Jhoot Bolo, Pagri Uchalo, Adalat Saboot Mangay to Ghair Hazir Ho Jao". The same news was also published in "The News" on 19.06.2016 and was also broadcasted by Geo News. It was further alleged that yet during pendency of the aforesaid complaint filed by J.S Bank against respondent No,1 wherein due to non-service of notice the Court issued Bailable warrants against respondent No,1 for 20.8.2016, following news was published in Daily "The News" on 19.06.2016: "a. Arrest Warrants again issued for ARY's Asad Kharal. b. It should be noted that it has consistently remained the policy of the above mentioned channel to defame and insult others and when the aggrieved party approaches court then remain absent from the proceedings."
It was further asserted in the direct complaint by respondent No,1 that publication of aforesaid news was an attempt by the applicants to target the reputation of respondent No,1 and to damage his integrity in the journalist fraternity as well as in general public, and to humiliate him by suppressing the true position, and also to damage his credibility as an investigative journalist which amounted to 'character assassination'. It was prayed in the direct complaint that cognizance may be taken against the accused/present applicants and they may be tried and punished in accordance with law.
3. After filing the aforesaid complaint, learned IXth Additional Sessions Judge examined the complainant and thereafter vide order dated 7th March, 2017 the trial Court sent R&Ps to the Court of IIIrd Civil Judge and Judicial Magistrate, Karachi South for holding preliminary inquiry under Section 202, Cr.P.C. who after recording statements of complainant's two witnesses namely Zubair Ali and Abdul Sattar, submitted the report to the trial Court. Thereafter, the trial Court vide impugned order 13.01.2018 registered the complaint and issued bailable warrants against the applicants in the sum of Rs.50,000/- for their attendance before the trial Court on 10.02.2018. The applicants have assailed the said order by way of filing instant Cr. Revision Application.
4. I have heard learned counsel for the applicants, learned counsel appearing for respondent No, 1/complainant, as well as learned D.P.G. appearing for the State and have also perused the material available on the record.
5. Learned counsel for the applicants has contended that the impugned order suffers from material illegalities and irregularities which are apparent on the face of the record as such impugned order is liable to be set aside. He further contended that while passing the impugned order, the trial Court has misinterpreted the provisions of Sections 200, 202 and 204, Cr.P.C. He further contended that the impugned order has been passed in a hasty and mechanical manner without applying judicious mind to the factual as well as legal aspects of the case. He further contended that learned trial Court has failed to scrutinize the contents of the complaint, nature of allegations made therein and the possibility of applicants' victimization and harassment. He vehemently argued that the trial Court has failed to appreciate that under Section 499, P.P.C. only the Reporter, the Publishers and the Printer can be implicated for any defamatory dissemination and not the owner or Editor in Chief of the newspaper. He further contended that essential ingredient for the offences under Sections 499, 500 and 501 P.P.C. that the alleged defamatory contents should be false and untrue is missing in the instant case as the complainant himself has admitted that the said news was true. According to him, when the fact reported is substantially true and it is reported in public interest, then no case of criminal defamation can be made out. He further contended that the learned trial Court also failed to take into consideration that there is unexplained delay in filing the complaint by the complainant/respondent No,
1. He further contended that the proceedings against the applicants are liable to be quashed as the same are abuse of process of Court and the applicants cannot be made to suffer agony, harassment and humiliation on the basis of patently false and unfounded allegations. He lastly prayed for setting aside the impugned order and quashing the proceedings initiated against the applicants on the basis of private complaint filed by respondent No, 1 . In support of his submissions, learned counsel for the applicants placed reliance on the case-laws reported as Ghaus Khan v. The State (1993.
PCr.LJ 764), Abdul Wahab Khan v. Muhammad Nawaz and 7 others (2000 SCMR 1904) and Waqar Ali and others v. The State through Prosecutor/AdvocateGeneral, Peshawar and others (PLD 2011 Supreme Court 181).
6. Conversely, learned counsel appearing for respondent No,1/complainant, while supporting the impugned order, contended that the same has been passed in accordance with law after properly taking into consideration factual and legal aspects of the case. He further contended that applicant No,1 being Editor in Chief, is responsible for the defamatory articles published in his newspapers as nothing could be done without his permission. According to him, it has been a constant practice that in various cases of defamatory publications Editor in Chief is made accused and even Honourable Supreme Court has issued notice to applicant No,1 being Editor in Chief of Daily Jang in another matter. Learned counsel further submitted that applicant without availing remedy before the trial Court or having an appropriate relief by surrendering themselves before trial Court have directly approached to this Court which is also not permissible. He prayed for dismissal of the Criminal Revision Application. In support of his contentions, learned counsel for respondent No,1 placed reliance on the case-laws reported as Noor Muhammad v. The State and others (PLD 2007 SC 9), Mst. Jameela and another v. Muhammad Arshad and another (1993 PCr.LJ 993), Director General, Anti-corruption Establishment, Lahore, and others v. Muhammad Akram Khan and others (PLD 2013 Supreme Court 401), Muhammad Ayoub Sorathia and 2 others v. The State (2017 YLR Note 262), M. Anwar, Bar-at-Law Advocate-General West Pakistan v. Saadat Khayali, Chief Editor, Printer and Publisher of the Daily "Hallat" and others (PLD 1963 (W.P.) Lahore 323) and K.M. Mathew v. KIA. Abraham and others (AIR 2002 SC 2989).
7. Learned D.P.G. appearing for the State also supported the impugned order contending that the same has been passed by the trial Court in accordance with the law. According to him, in a direct complaint, the court is not required to examine the material minutely but it merely has to see that, prime facie case has been made out to proceed further. He further contended that this Court in exercise of its inherent jurisdiction also could not embark upon to examine adequacy and or inadequacy of evidence which stage would come after the charge is framed and the complainant is given an opportunity to prove his case. He prayed for dismissal of revision application. Learned D.P.G. relied upon the case-laws reported as Muhammad Farooq v. Ahmed Nawaz Jagirani and others (PLD 2016 Supreme Court 55) and The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544).
8. I have given anxious consideration to the arguments advanced by the learned counsel for the parties and have scanned the record available in the file. The main contention of the learned counsel for the applicants is that only the Reporter, the Publishers and the Printer can be implicated for any alleged defamatory dissemination and not the owner or Editor in Chief of the newspaper. In this connection he relied upon the provision of Section 499, P.P.C. According to him, respondent No,1 has victimized the applicants only in order to please his employer viz. ARY News. He relied upon the case reported as Ghaus Khan v. The State (1993 PCr.LJ 764), wherein it was held that: the provisions of section 499, P.P.C. are not attracted to prosecute a person who instigates another person for registration of a false case.
9. I am afraid in the instant case there is no question of instigation by the applicants to any other person to lodge a false case against respondent No,
1. Here the simple question is that; as to whether in the capacity of Editor in Chief of the relevant newspapers, the applicant could be held responsible for the publication of news in Daily 'Jang' and 'The News' which, according to respondent No,1, is defamatory in nature whereby the applicants with mala fide intention attempted to defame and disrepute him. This point was dealt within a case of Indian Jurisdiction reported as K.M. Mathew v. KI.A. Abraham and others (AIR 2002 SC 2989), wherein Supreme Court of India while dealing with this point held as under: "The contention of these appellants is not tenable. There is no statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Manager Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper."
In the said case it was further had that: "If the complaint is. allowed to proceed only against the 'Editor' whose name is printed in the newspaper against whom there is a statutory presumption under section 7 of the Act, and in case such 'Editor' succeeds in proving that he was not the 'Editor' having control over the selection of the alleged libelous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprits."
10. Yet in another Suo Motu Case bearing No,2/2011 decided on 17th September, 2011 by Gilgit Baltistan Chief Court against Mehtab Chief Editor Daily Ausaf and others, the Chief Editor, who was arrayed as Respondent No,1 in the said case, tendered unconditional apology for publishing defamatory news against the Court and he was accordingly held responsible but on account of his unconditional apology he was pardoned. In the said case it was held as under: "The Chief Editor Daily Ausuf failed to attend on appointed date but tendered unconditional apology through his Counsel Mr. Manzoor Hussain Advocate without contest. We considered the same insufficient unless he attended the Court and got recorded his statement. In his statement respondent No,1 again bowed his head before the Court by throwing himself at the mercy of the Court. He also conceded "the news" to be defamatory false and termed unintentional human error in his part...... Since Respondent No,1 has tendered written apology and also has thrown himself at the mercy of the Court, we deem the apology to be sincere as such he is not imposed any punishment and extended pardon to him as this Court is not vindictive."
11.In view of above, the plea raised by learned counsel for the applicants that Editor in Chief is not responsible for any defamatory publication in the newspaper is devoid of force.
12.The next contention of learned counsel for the applicants was that the fact reported in the news items in question was substantially true and that the same was published in public interest, as such no case of criminal defamation can be made out against the applicants. In this connection, suffice it to say that it is yet to be determined at the trial stage after recording of evidence etc. as to whether the alleged defamatory news contained true or untrue facts and before undertaking such exercise, it would be premature to adjudge determination of such fact.
Needless to emphasize that while dealing with a private complaint at the initial stage, the Court has only to see as to whether a prima facie has A been made out by the complainant for issuing further process in the matter or not and at that stage a detailed inquiry is not warranted. In the case of Noor Muhammad v. The State and others reported in PLD 2007 SC 9, Honourable Supreme Court held as under: "The Court cannot overstretch the proceedings as to convert the preliminary inquiry or the averments made in the complaint to a stage of full-fledged trial of the case. It is quite an initial stage whereafter the accused is having the opportunity, apart from showing his innocence in the case at the final stage, to have a recourse of an intermediatory remedy by moving the Court showing the complaint to be false and frivolous one and requesting the Court for his acquittal under section 249-A or 265-K, Cr.P.C. prior to further proceeding in the case to be taken. Mere summoning of an accused by the Court to answer the charges levelled against him does not tantamount to any infringement of any right of. a person but rather an opportunity afforded to him to explain his position. During the investigation of a FIR case, where the police is empowered to arrest without warrant i,e,, in cognizable case, such a process, i,e,, arrest etc. is resorted to by the police, even in a case where the person accused of the charge pleads innocence before the police and he succeeds in his efforts to some extent and the police agrees with him, yet before any recommendation by the police for his discharge, an insistence is made of his surrender before the authorities/court. The possibility of accusation turning out to be false or frivolous at the trial should not overbear the Court from issuing the process if the material available, prima facie discloses the case against the accused. At this stage a protracted inquiry or full-dressed rehearsal of trial is not required."
13. In the case of Muhammad Farooq v. Ahmed Nawaz Jagirani and others reported in PLD 2016 Supreme Court 55, it was held by apex Court as under:-- "To take cognizance of an offence in complaint case, burden of proof in preliminary enquiry for the issuance of process and or summons as the case may be is much lighter on the complainant and he is required to establish prima facie case, whereas, the burden of proof placed on the prosecution during regular trial is Much stringent and the prosecution is required to establish and prove the case beyond reasonable doubt."
14. It has also been pleaded on behalf of the applicants that there is an unexplained delay in filing of complaint by respondent No,1 and the superior courts have not appreciated . such long delay.
According to learned counsel for the applicants, such delay establishes mala fide and ulterior motive on the part of the complainant/respondent No,1 to victimize the applicants by involving them in false complaint. In support of this assertion reliance has been placed on the cases reported as Muhammad Fiaz Khan v. Ajmed Khan and another (2010 SCMR 105) and Abdul Wahab Khan v. Muhammad Nawaz and 7 others (2000 SCMR 1904). In the case of Muhammad Fiaz Khan, supra, it was held by Honourable Supreme Court as under: "6. It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts. Facts highlighted hereinabove clearly depict that respondent No, 1/ complainant had filed the complaint after a considerable delay after availing different remedies mentioned hereinabove. It is a settled law that no limitation is provided in criminal law for lodging a complaint. See Queen Empress v. Ajudhia Singh and others 10 All. 350. In spite of the aforesaid general principle of law when the complaint was filed after "a considerable delay which was not explained by the complainant then in such a situation it raises suspicion as to its truthfulness meaning thereby that delay in filing complaint is not by itself fatal except under very special circumstances. The complaint looses its truthfulness with the length of delay, more particularly when it is based on oral evidence."
15.In the case of Abdul Wahab Khan, supra, it was held as under: "We are conscious of the fact that no time limit has been fixed for filing such complaint but there should be some limit as the complainant cannot be allowed to file such complaints in accordance with his own time schedule, convenience and whims and wishes. The factum of delay creates doubt regarding the authenticity and genuineness of the allegation on the one hand and the possibility of fabrication on the other. It is worth mentioning here that allegedly the judicial files were sold in the year 1984 but the complaint was got lodged on 1.11.1990 without any plausible justification"
16. Needless to emphasize the well settled principle of law that each and every case is to be decided-on its own peculiar circumstances and facts and even in the case of Muhammad Fiaz Khan, supra, relied upon by the learned counsel for the applicants himself, a reference has been made to such proposition of law. From a minute scrutiny of the facts of the afore-cited cases, it seems that there is mark distinction between the facts and circumstances of the cited cases and that of the present case. In the case of Muhammad Fiaz Khan, supra, it has been categorically held that: "It is a settled law that no limitation is provided in criminal law for lodging a complaint." It was further held that; "......delay in filing complaint is not by itself fatal except under very special circumstances."
17. Besides, in the said case the facts were that the complainant was allegedly going in his car to Attock when on the way certain culprits duly armed with firearms, opened fire at him and out of three shots out of which only one shot hit on left side of his car. He went to lodge FIR which was not registered by police, as such he moved an application before concerned Additional Sessions Judge for registration of FIR and same was dismissed, therefore, he filed a Writ Petition before Lahore High Court. Upon the directions of High Court, his statement was recorded by police; however, during investigation the same was found incorrect and false. Besides, inquiry was also conducted by concerned S.D.P.O. upon the directions of Lahore High Court who then submitted his report that the allegations levelled by the complainant/ petitioner were not correct. Consequently, proceedings under Section 182, P.P.C. were initiated against him wherein prosecution led evidence.
However, when the case was fixed for recording of his statement, he then filed private complaint which was dismissed by the concerned Magistrate and the Revision Application filed by the complainant against the order of the Magistrate was also dismissed by concerned Additional Sessions Judge. Thereafter, the complainant filed writ petition wherein Lahore High Court remanded the case to the trial Court after five years. Again the trial Court dismissed the private complaint and the findings of the trial Court were also confirmed by the concerned Additional Sessions Judge. However, Honourable Lahore High Court set aside the order passed by learned Additional Sessions Judge. The said order of Lahore High Court was challenged before Honourable Supreme Court. It was in that background, that Honourable Supreme Court made above-quoted observations. In the cited case, it was specifically held by the apex Court, "complainant had filed the complaint after a considerable delay after availing different remedies..." which is not the case of respondent No,1/complainant here. In this view of the matter, the facts and circumstances of the cited case and that of the instant case are quite different hence the cited case is distinguishable.
18. In the second case of Abdul Wahab Khan, supra, too, the facts were quite different. In fact, Special Magistrate, WAPDA had filed a private complaint against certain government officers working in WAPDA and Anti-Corruption Establishment wherein various serious allegations of corruption, tampering with official record, theft of judicial files, with ulterior motives and receiving of an amount of Rs.30,000/- in lieu of alleged sale of judicial files were levelled against them. The complaint was dismissed vide order dated 01-11-1990 and the Revision Application against the said order was also dismissed by Lahore High Court on 19.05.1993.
19. In fact, in the said case Honourable Supreme Court maintained the two orders whereby complaint as well as Revision Application were dismissed respectively not merely on the ground of delay in filing the direct complainant but the same were maintained mainly on the following grounds:
(i) "Admittedly the complaint was filed without any sanction from appropriate Government, and thus, at first instance it was mandatory for the learned Special Judge to dilate upon the said aspect of the matter to find out as to whether the complaint could have been entertained due to want of sanctions or otherwise? No inquiry or probe worthy the same was made in this respect which aspect also escape noticed from the learned Single Bench of Lahore High Court, Lahore. The complaint should have been dismissed or returned back to the complainant due to want of sanction without determining its truth or falsity." (Page 1911)
(ii) "The learned Single Judge of the Lahore High Court, Lahore, has also not examined properly the question as to whether schedule offences could have been tried with non-scheduled offences or otherwise. The learned Special Judge has erred while holding that non-scheduled offences could not be tried with scheduled offences by ignoring the provisions as contained 'in section 5(7) of the Pakistan Criminal Law Amendment Act, 1958,..." (Page 1912)
(iii) "...In short it can be concluded that the appellant was not competent to file complaint regarding tampering with the record and removal of judicial files and complaint could have only been filed by the successor in office." (Page 1915).
20.Besides, while making the afore-quoted observations, which have been relied upon by the learned counsel for the applicants, Honourable Supreme Court also held that; "We are conscious of the fact that no time limit has been fixed for filing such complaint."
21.Learned counsel for the applicants has also relied upon the following observations made in the case of Abdul Wahab Khan, supra: "It is well settled by now that the court concerned must scrutinize the contents of complaint, nature of allegation made therein suppoirting material in support of accusation, the object intended to be achieved, the possibility of victimization and harassment if any to ensure itself that no innocent person against whom allegations are levelled should :suffer the ordeal of protracted time consuming and (cumbersome process of law."
22.He also referred the case of Waqar Ali and others v. The Stale through Prosecutor/Advocate- General, Peshawar and others reported in PLD 2011 Supreme Court 181 wherein it was held as under: "This will ensure that the process of law is not abused through filing of vexatious complaints.
Courts are also duty bound to scrutinize complaints and, if necessary, examine complainants, to protect hopeless victims of false complaints or complaints which do not show the existence of all necessary elements of an alleged offence."
23. There could not be even a slightest cavil to the proposition of law as settled by Honourable Supreme Court in the aforesaid cases. However, while reiterating the well settled principle of law that each and every case is to be decided on its own peculiar circumstances, it may be observed that merely relying upon a particular proposition of law is not enough until and unless specific pointation has been made to the particular facts in the relevant case to which such proposition of law is intended to be applied and attracted. Without showing any nexus between such principle of law and the specific facts in the particular case, it would not be sufficient to rely upon such proposition of law. In the instant case, learned counsel has not succeeded to point out the specific and particular facts and circumstances to which aforesaid proposition of law is attracted. He has not been able to substantiate that the trial Court in the instant case did not 'scrutinize the contents of complaint, nature of allegations made therein supporting material in support of accusation, the object intended to be achieved, the possibility of victimization and harassment` as laid down in the case of Abdul Wahab Khan, (supra). Likewise, the learned counsel also could not establish that in the instant case 'process of law was abused through filing of vexatious complaint' and that the trial Court failed to 'scrutinize the complaint and examine the complainant' as held in the case of Waqar Ali and others (supra), relied upon by him. Having said so, it can safely be held that the aforesaid case-law relied upon by the learned counsel for the applicants are also distinguishable and not attracted to the present case.
24. Since the trial Court after completion of codal formalities has brought the complaint on record.
After registering the case, trial Court took cognizance of the same and has issued bailable warrants against the applicants. The applicants without approaching the trial Court or availing remedy available under the law, have directly approached to this Court which is not permissible, reliance in this regard can be placed on the case of Director General, Anti-Corruption Establishment, Lahore, and others v. Muhammad Akram Khan and others reported in PLD 2013 SC 401, whereby it has been held as under: "2.The law is quit, settled by now that after taking cognizance of a case by a trial Court the FIR registered in that case can not be quashed and the fate of the case and of the accused person challanned therein is to be determined by the trial Court itself. It goes without saying that if after taking of cognizance registered in that case can not be quashed and the fate of the case and of the accused person challanned therein is to be determined by the trial Court itself. It goes without saying that if after taking of cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/ 265-K Cr. P. C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction."
25. Even otherwise, it seems that in the instant case only process has been issued to the applicants for their appearance in the Court and at the trial stage they would be afforded sufficient opportunity of hearing to disprove the allegations levelled by respondent No,1 in the direct complaint. Besides, other remedies admissible under the law would also be available to them for initiating appropriate proceedings against the complainant and also for awarding compensation to them, if ultimately it is found and concluded that the complaint was frivolous and vexatious and had been filed with ulterior motives only to victimize the applicants. In the case of Noor Muhammad v. The State and others (PLD 2007 SC 9), Honourable Supreme Court held as under: "Moreover, section 250, Cr. P. C. also provides sufficient safeguard to an accused against a false and frivolous accusation by the complainant, which envisages that the court while acquitting an accused at the trial stage, holding that the charge brought against him, was false, frivolous or vexatious has sufficient power to award adequate compensation."
26. In the case in hand the applicants have prima facie by-passed the ordinary legal course available to them provided under the Criminal Procedure Code and since there has been placed no exceptional circumstances to justify departure from normal course, hence in absence thereof inherent jurisdiction vested under Section 561-A, Cr.P.C. cannot be exercised which otherwise would amount to interrupt and divert the ordinary Code of Criminal procedure; however, the applicant agitated the same plea before the trial Court. As far as revisional powers vested under Section 435 Read with Section 439, Cr.P.C. are concerned, I found no jurisdictional error or material illegality and irregularity in the impugned order which may warrant interference of this Court. It is settled law that Revisional jurisdiction cannot be used for interrupting or subverting the normal and irregularity in the impugned order which may warrant interference of this Court. It is settled law that Revisional jurisdiction cannot be used for interrupting or subverting the normal criminal proceedings unless an order under reference is found tainted with miscarriage of justice, same cannot be interfered with.
27.The upshot of above discussion is that in view of aforesaid factual as well as legal aspects of the case, I do not find any justification to interfere with the impugned order dated 13.01.2018 passed by learned IXth Additional District and Sessions Judge, Karachi South and consequently, instant Criminal Revision Application is hereby dismissed along with listed applications.