1. This is an application under section 561-A, Cr.P.C by which the applicant S. Dawood Shah has sought quashment of criminal case under section 500, P.P.C. Pending against him in the Court of X11 Additional City Magistrate, Karachi South. The said criminal case was started on direct complaint filed by respondent Noor Shah who happens to be the step brother of the applicant. The allegations made in the direct complaint are that on account of good reputation that the applicant enjoyed in family, the respondent appointed him as the attorney to look after his property at his native place. Later on when the respondent found that the applicant was not working faithfully he had withdrawn power of attorney from him. The reupon the applicant was so annoyed that he sent an application to Chief Martial Law Administrator, endorsing its copy to Martial Law Administrator Zone 'C', Commissioner Karachi, Director Anti-Corruption, making therein false and frivolous allegations in the following words:- "The complainant is a corrupt Government official and he during the previous regime has made a lot of money while he was posted at lucrative posts and being a clerk purchased 10 Marlas of land to the worth of Rs.10,000 at Village Tordher and constructed a house over it for Rs.80,000. Besides this he also got a house at Jinnah Shirine Colony and a flat at Super High Way flats respectively."
2. The learned Magistrate after recording statement of the complainant (respondent) registered the case and issued process against the accused (applicant). It is stated on behalf of the applicant that before filing the present quashment application, he moved an application under section 249- A, Cr.P.C. Before the trial Court but no order has so far been passed on that application.
3. It is not disputed that the controversial application was addressed by applicant Dawood Shah to the Chief Martial Law Administrator and the other authorities. The said application admittedly contained the allegations of corruption etc. Against the respondent. The contention of the learned counsel for the applicant, however, was that the application in question did not amount to defamation of the respondent becau--se firstly, it was not published and secondly the allegations contained therein were made in good faith. In the opinion of the learned counsel the disputed communication fell under Eighth Exception to section 499 P.P.C. And consequently the applicant could not be held to have committed offence of defamation. Accordingly he prayed for quashment of the defamation case pending against him.
4. "Section 499. Defamation. Whoever by words either spoken or intended to be read, or by sign or 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, is said, except in the cases hereinafter excepted, to defame that person: Provided that the exceptions in this section, other than the fourth exception, shall not apply in cases in which the imputation is published in a 'book', 'news-sheet' or 'newspaper' as defined in the West Pakistan Press and Publications Ordinance, 1983 (P.W.) Ordinance No. XXX of 1963)."
5. "Eight Exception.-Accusation preferred in good faith to authorized person. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation."
6. Plain reading of section 499 makes it abundently clear that if any person by words intended to be read makes any imputation concerning other person intending to harm the reputation of such other person or knowing that such imputation will cause harm to his reputation, the person making the imputation will be guilty of defamation except in cases which are covered by Exceptions to the said section. The disputed communication obviously contained the material which adversely reflects on the reputation of the respondent. Therefore, it falls under section 499 hereinabove, as the said material was intended to be read by those to whom it was addressed and was conveyed with knowledge, if not with intention, that it would harm the reputation of the respondent to whom it was imputed. The only question that arises for determination was whether the disputed material was covered by Eighth Exception referred to above. If the imputations in question are proved to have been made in gooth faith and to those who have lawful authority over the respondent with respect to the subject-matter of the accusation, then of course the imputations will be hit by the above Exception and the maker thereof would not be liable for offence of defamation. But it is only by evidence that the disputed accusations can be proved to have been made in good faith. Such evidence can be produced in the trial Court where the case against the appellant is pending.
7. The argument of the learned counsel for the applicant, however, was that no proof was required as, in view of the case law cited by him, the imputations similar to those contained in disputed communication fall under Eight Exception and are, therefore, excepted. The argument was obviously without force. It would be noticed that disputed communication was sent not only to the Chief Martial Law Administrator but also to Martial Law Administrator, Commissioner Karachi and Director Anti-Corruption. The respondent against whom the allegation of corruption was made was employed in the office of Deputy Commissioner at the relevant time. Therefore, excepting Director Anti-Corruption no other authority specified above had direct control over him in respect of the subject-matter of the accusations. Although the Director Anti-Corruption could be held to be concerned with the subject-matter of the accusations yet it is to be proved even in his case that the imputations were sent in good faith. In other words it is to be proved that the sender of the communication believed that the material contained therein was true. For such proof it is necessary to lead evidence which can be produced in course of the trial.
8. It may now be examined how far the authorities relied upon by the learned counsel for the applicants have helped him. The first case referred to by him is of Ghulam Murtaza v. The State PLD 1966 (H.P.) Kar. 337. In this case although the publication of the imputation was held as necessary ingredient of the offence of defamation, the alleged libellous communication was made only to person whose character was attacked and the said communication was sent to him by registered post with acknowledgement due. It was throught his own negligence that the contents of the letter were perused by others. Thus the writer of the letter was held not to have published the letter. The facts of the instant case being totally different, the above reported case would not help the applicant.
9. The third case relied upon by the learned counsel for the applicant is of Mst. Safooran Bibi and 2 others v. Abdul Hamid PLD 1976 Lah. 1548. In this case the impugned statements were made in suit for dissolution of marriage. As such statements were relevant to issues and meant to protect were's own right, they were held to be covered by Exception 9. That is not the position in the instant case. Therefore, the above reported case will not be applicable in the instant case.
10. The last case referred to in this connection is of Begum Shamim Firdaus v. The State 1984 P Cr. L J
22. In this case two defamation cases based on two telegrams directed against the complainant were quashed on consideration of the background leading to sending of the impugned telegrams.
11. The telegrams were found to have been made in good faith. Thus, even this case has no relevance with the facts of the instant case and as such it is not applicable.
12. The upshot of the above discussion is that since it is yet to be proved at the, trial that the disputed communication addressed to various authorities was made by applicant in good faith, this is not a fit case for quashment. The application for quashment is, therefore. Dismisses.