This is a complaint filed by the four petitioners praying the proceedings on a complaint under section 500, Cr. P. C. Institutes against them by Mehdi Hassan be quashed. The petitioners were represented by Mr. Zahoorul Haq and the complainant Mehd Hassan appearing in person whereby the State was represented b; Mr. Abdul Karim Lakhan.
2. Briefly stated the facts are that the petitioners are res dents of Hassan Colony in Golimar Karachi and this colony has been established by U. P. Mohajreen Association. With regar to the management of this Association disputes have been pending since 1962 which have resulted in several suits having been file and some criminal complaints instituted. Presently Mehdi Hassan claims to be the president of this association and in that capacity he is administering the affairs of the association.
3. The facts leading to this complaint are that Mehdi Hassan complainant made a report to the S. H.
O. Golimar Police Station on 9-6-1968, wherein he alleged that the petitioner had organised a procession consisting of 40 or 50 persons who were raising provocative slogans and using abusive language against him and he requested the S. H. O. That the persons responsible for this procession may be prevented from acting in such unlawful manner. It seems police took no action and complainant Mehdi Hassan thereafter filed a direct complaint before the Additional City Magistrate Court No. 22, Karachi, against the four petitioners and nine others alleging commission of offences under section 500, P, P. C. And sections 504/34, P. P. C. The learned Magistrate held preliminary inquiry under section 202, Cr. P. C. And ultimately issued process against all the 13 accused including the petitioners in these proceedings. Six witnesses have been examined by the complainant and the complainant who appeared before me in person stated that he would not lead any further evidence in the case.
4. The allegations mainly in the complaint were that water in the said colony was supplied by the water carriers but due to shortage of water supply in the mains the carriers did not supply water to the residents on and from 8-6-1968, and since supply of water bad been stopped, the accused including petitioners had organised a procession which paraded in 'the colony and raised extremely provocative, insulting and abusive slogans which were as follows : "(i) Mehdi Hassan Murdabad.
(ii) Taqi Hasain Nazvi Murdabad,
(iii) Shamsul Hasan Murdabad,
(iv) Wali Haider Murdabad.
(v) Riaxul Hasan Mordabad,
(vi) Yazid ke Bache Pani lao,
(vii) Yazid ke Bache Bahar Ao,
(viii) Yazid ke Bache colony se Bahar Nikaljao,
(ix) Kutte ke Bache Bahar Ao."
Mr. Zahoorul Haq, learned counsel for the petitioners has contended that this case was fit for quashment because the allegations were only to the effect that the petitioners and the co- accused had used abusive and insulting language and merely because provoca--tive, insulting and abusive epithets had been used this could not a prosecution for an offence under section 500, P. P. C. He further contended that the offence if any would fall under section 504, P. P. C. Which was exclusively triable by a conciliation Court and the learned Magistrate acted wrongly in proceeding with trial and in doing so he had assumed jurisdiction which in fact did not vest in him. The other contention of Mr. Zahoorul Haq was that by comparison of the complaint and the original report made to the S. H. O. Golimar Police Station. It was patent that the com--plainant Mehdi Hassan had inflated the number of accused in the case and made improvements in regard to the version of the inci--dent and that being so in the background of enmity between the parties, the proceedings should be quashed as the case could not be termed to be false.
5. On the other hand the contention of Mehdi Hasan complainant and Mr. Abdul Karim Lakhan, learned counsel for the State is that no case for quashment of proceedings had been made out because the proceedings are maintainable and alternative-- remedy also available. Therefore, they contended that since all the prosecution evidence had been examined it would not be proper to divest the trial Court of its normal function --f appre--ciation of evidence, for which the stage is now ripe.
6. As to the question whether abuse or insult can found a prosecution for defamation. Mr. Zahoorul Haq has placed reliance on four cases. The first of these is reported in AIR 1946 Mad. 223, where, a Single Judge has laid down that in a social club, members have a right to honest freedom of expres--sion and such freedom cannot be preserved unless the community is immune from the threat of criminal proceedings hanging over him. I am afraid this decision does not help the petitioners as in the present case, the words used are clearly such as cannot be termed to be honest expression of one's opinion. The other case on which the learned counsel for the petitioners relied is reported in AIR 1943 Sind 196. The facts in that case were that one brother had written a letter to his elder brother protesting against the treatment meted out to him. I cannot possibly see how this case can help the petitioners in obtaining the relief that is sought in this petition. The other two cases are reported in AIR 1929 Lah. 232 and AIR 1936 Lah. 294. In the first case the facts were that in heated argument the accused had called the complainant a thief and for that reason the matter was too petty to be brought to the criminal Court. This case is clearly distinguishable as in the present case there was a deliberate act of taking out a procession and using filthy language against the complainant. In the other case from Lahore High Court the conviction of the accused was upheld because in an election campaign the accused had attacked the complainant in relation to the complainant's capacity as a lawyer. The ratio is understand--able as in regard to election campaign, the capability as an Advocate in contesting an election is not a point for consideration and therefore if he was attacked as being an incapable Advocate the same was held to be defamatory. In the present case the stand of the complainant is that supply of water was not the func--tion of the committee and therefore when he was addressed as "Yazid" a false imputation was made against him. But to say that insulting, abusive language can never form a foundation for an action for defamation would be stretching the point too far. Sir Shadi Lal, C. J., in 30 Cr. L J 4 has laid down that while it is true that a mere abuse is not ordinarily defamation but the fact that the words used by the writer were those of abuse does not itself take the article out of the definition of defamation, if taken as a whole it was calculated to disrepute the complainant. No general rule can be laid down that abusive or insulting language can never amount to defamation.
I would on the contrary hold otherwise subject to just exceptions available and also subject to the question whether the language has a tendency of impairing the reputation of a person. I have therefore no hesitation in repelling this argument on that score. With regard to the other contention of Mr. Zahoorul Haq that the number of accused had ayes been inflated in the complaint and the version of the incident had been improved I cannot extend the relief in these proceedings because that would normally be the function of the trial Court to appreciate the evidence and come to the conclusion with regard to the identity of the accused and the nature of the allegations. The other point raised by Mr. Zahoorul Haq is that the offence, if, any, falls under section 504, P. P. C. Which is exclusively triable by the conciliation Court is also not tenable as the ques--tion has already been dealt with by me in the foregoing discussion on the point whether abusive language can form the basis of a prosecution for defamation.
7. On the other hand I am of the view that since the matte has already been pending fox four years and all the prosecution witnesses have been examined, it would not be proper to quash the proceedings in exercise of inherent jurisdiction of this Court. Their Lordships of the Supreme Court in the case of Ghulam Muhammad v. Muzamal Khan (PLD 1967 SC 317) have observed that the inherent jurisdiction conferred by section 561-A, Cr. P. C. Would not nor--mally be invoked where another remedy is available because these inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and these powers do not vest the High Court with powers to make any order even though the same may be in the interests of justice. Their Lordships have observed that jurisdiction under section 561-A, Cr. P. C. Is neither an alternative jurisdiction nor an additional jurisdiction but it I a jurisdiction which is preserved in the interest of justice for redress of a grievance when no other procedure is provided by the Code itself. Applying this principle to the present case, I feel the since all the prosecution witnesses have been examined in this case and the case is ripe for consideration on the question of charge it will not be proper to invoke section 561-A, Cr. P. C. For the purl poses of giving relief to the petitioners.
8. Under these circumstances, this petition is dismissed. I would further direct that the trial Court should proceed with this case expeditiously and decide the same within three months.