OMAR SIAL, J. Asad Ali Toor ("Mr. Toor"), the applicant herein, is a print and electronic media journalist working in Pakistan, who also operates a channel on the video sharing service, YouTube M/s. Axact (Private) Limited ("Axact"), the answering respondent, is a company limited by shares, incorporated in Pakistan and engaged in the business, of Information Technology. Mr. Toor, on 28.09.2022, uploaded a video on his YouTube channel, which 2 employees working for Axact claimed, defamed Axact. A direct private complaint bearing number 4597 of 2022 was filed by Axact before the learned 4th Additional Sessions Judge, Karachi South. The learned trial court registered the complaint under sections 499, 500, 502-A and 505 P.P.C. on 09.11.2022. Mr. Toor, being aggrieved by such a registration, has now approached this Court.
2. Learned counsel, representing Mr. Toor, has argued that the court in Karachi did not have jurisdiction and in any case neither was what Mr. Toor Uploaded, directed towards Axact nor was what he said defamatory. Learned counsel for Axact was of the view that the courts in Karachi did have jurisdiction and that as the trial court had taken cognizance of the complaint, Mr. Toor should approach the trial court for the redressal of his grievance. My decision in this matter is not based on the territorial jurisdictional issue which the counsels have argued and hence for the sake of brevity no further discussion is made on this aspect of the counsels arguments. Learned Assistant Attorney General supported the impugned order. I have heard all counsel. My observations and findings are as follows.
3. One of the cases which Mr. Raj Ali Wahid, representing Axact, has relied upon in his argument is an unreported order of the Supreme Court of Pakistan in a case titled FIA through Director General, F.I.A. and others v. Syed Hamad Ali Shah (C.P. 1257 of 2020). In particular, in this order, learned counsel has relied on paragraph 4 of the order. The essence of the observation made in this paragraph is that the High Court does not have power under section 561-A Cr.P.C. to quash an FIR or an investigation proceedings. Reliance on a few lines of the order without looking at the thought of the Court holistically would not be appropriate. While relying on the first few lines of paragraph 4, the learned counsel did not emphasize that the Court itself also gave a reason for the High Court not to do so. In order to facilitate reference, it would be, appropriate to quote what the Court said: "This is because jurisdiction of a High Court to make an appropriate order under Section 561-A Cr.P.C. necessary to secure the ends of justice, can only be exercised with regard to the judicial or court proceedings and not relating to any other authority or department, such as FIR registration or investigation proceedings of the police department." The Court itself in the same paragraph of the order went on to observe, "This has been authoritatively held by a five-member bench of this Court in Shahnaz Begum. A High Court, therefore, can quash a judicial proceeding pending before any subordinate court under Section 561-A Cr.P.C, if it finds it necessary to make such order to prevent the abuse of the process of that court or otherwise to secure the ends of justice; however, it should not ordinarily exercise its power under Section 561-A Cr.P.C. to make such order unless the accused person has first availed his remedy before the trial court Under Section 249-A or 265-K, Cr.P.C.". One of the key observations made by the Court: A High Court, therefore, can quash a judicial proceeding pending before any subordinate court under Section 561-A Cr.P.C., if it finds it necessary to make such order to prevent the abuse of the process of that court or otherwise to secure the ends of justice. There is no dispute however that a High Court should not ordinarily exercise such a power under section 561-A Cr.P.C. to make such orders unless the accused person has first availed his remedy before the trial court under section 249-A or 265-K Cr.P.C. Learned counsel for Axact has also relied upon Muhammad Farooq v. Ahmed Nawaz Jagirani and others (PLD 2016 SC 55). In this case as well the Supreme Court has observed that exercise of jurisdiction by the High Court under section 561-A Cr.P.C. should not be undertaken in the normal course and that the exercise of the inherent jurisdiction was dependent on non- availability of alternate and efficacious remedy and/or exercise of some extraordinary circumstances warranting exercise of such jurisdiction. Some other cases have been cited by the learned counsel for Axact, however, I have not referred to them because each Of those cases reiterates the same thought i.e. a High Court should not exercise powers under section 561-A Cr.P.C. ordinarily however the same may be exercised in exceptional cases and for reasons to be recorded by the High Court.
4. Before proceeding further it would therefore be appropriate to first address the question as to whether there are any exceptional grounds or whether it is necessary for the High Court to make an order in order to prevent abuse of the process of the trial court or to otherwise secure the ends of justice. In my opinion, in the circumstances of the present case, there is a ground for the High Court to entertain an application under section 561-A Cr.P.C. in order to prevent the abuse of the process of the trial court as well as to secure the ends of justice. Looking at the case broadly, the case is exceptional as at the heart of it is the fundamental right of speech as enshrined in Article 19 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). The reason I have taken an exception and not dismissed this application on the ground that the applicant should now seek his remedy before the trial court, are as follows:
5. Freedom of speech is not a fundamental right which is not unfettered. The debate of where the right of freedom of speech ends and hate speech begins has been the subject of numerous debates since at least 1948 when the right of freedom of expression was given a place in Universal Declaration of Human Rights. Coincidentally, such a right is contained, as in our Constitution, in Article 19 of the Declaration. There is no denying though that freedom of speech is our blueprint for personal liberty and the cornerstone of a free society." "The matrix, the indispensable condition, of nearly every other freedom" that's how Justice Benjamin Cardozo referred to freedom of speech.
6. At the core of this dispute is the right to freedom of speech. A right guaranteed under Article 19 of the Constitution. In any action, civil or criminal, courts of law as guardians of the Constitution, must ensure that the right to freedom of speech is not breached so easily. Our Constitution itself spells out certain restrictions on this right when it states that Freedom of speech can stand restricted by law to the extent that the same would undermine any of the following: (i) glory of Islam, (ii) integrity security or defense of Pakistan or its amicable relations with foreign States; (iii) public order, decency or morality; (iv) contempt of court; (v) commission of or incitement to an offence. Some, if not all, of these restrictions have been codified as offences through different statutes. In the current situation it is simply not the case of Axact that what Mr. Toor said breached any one of the exclusions given in the Constitution. In such a situation, it is clear then that a court must guard the right to freedom of speech even more closely. Axact's action is based primarily on section 499 of the Pakistan Penal Code and prima facie even the conditions given in that section may not be satisfied.
7. With much respect a cursory look at the complaint which has been filed had begged certain questions to be answered before the right to freedom of speech was curtailed. These questions included, how does what was said impact Axact even in a prima facie manner? Was there even remotely any evidence of damage caused as a consequence of was said? If Axact was aggrieved then why has not Axact, as required under the companies legislation, acted in accordance with the legislation to initiate criminal proceedings? No resolution passed by the company in its general body, or Board of Directors is on record or was ever obtained. How on earth did the 2 persons, who have filed the complaint, say that they were aggrieved by the alleged defamation when they were in essence some unknown employees of a subsidiary company of Axact? Why was a criminal complaint being filed in Karachi, albeit the law allows the same to be filed, however it would have been more convenient for both parties to litigate in Islamabad? The court should have the above basics, at the very least, before taking cognizance of a criminal complaint that is a challenge to the fundamental right of freedom to speech. We must also not lose sight of the fact that initiation of unnecessary litigation, causes massive burden and inconvenience to the parties involved and further burden on an already struggling criminal justice system. A guidance to the learned trial courts in respect of such cases is my reason to drift from the rule as I am of the opinion that such guidance, subject to the wisdom of the Supreme Court, may assist our learned trial courts in cases impacting freedom of speech.
8. Mr. Toor and Axact in their own ways have contributed extensively towards defending the right of freedom of expression and speech in our country. When persons of such profile and large admirer base come into conflict for minor, insignificant reasons, it no doubt causes a negative impact on the right of freedom of expression. In all honesty, it seems that this is more a case of conflict of egos than real criminal harm. It is hoped and expected that the parties will be in a position to resolve such disputes through mediation.
9. A vague complaint from which it seems that Axact itself has given an interpretation to claim that what Mr. Toor said was regarding them; 2 unknown employees of a subsidiary company of Axact being aggrieved; Axact, itself not initiating any complaint for defamation to it no authorization from Axact to the 2 employees to initiate action; and most importantly the right of freedom of expression being attacked on a flimsy ground, make me conclude that in the circumstances, it would be appropriate to quash the proceeding arising out of the complaint filed by Axact.