' Nusrat Ali (hereafter "complainant") filed a complaint under section 500, P.P.C. In the Court of Ilaqa Magistrate, Police Station South Cantt., Lahore against Muhammad Abid and others, Chairman and Directors of Messrs Platinum Commercial Bank Limited (hereafter "petitioner"). According to Nusrat Ali-complainant, he was a known businessman of Karachi and was Chief Executive/Director of Messrs International Investment and Financial Services Limited (H & FSL) but resigned from the Directorship of the Company w,e,f, 19-9-1995. The complainant alleged that the petitioners in order to malign, defame and harm reputation of complainant, intentionally and with full knowledge of the consequences, in connivance with each other got published a defamatory notice against the complainant in Daily "Dawn", Lahore and Karachi on 21-7-1999 addressing the complainant as defaulter of Messrs Platinum Commercial Bank Limited and has been described as Chief Executive and Director of II&FSL. The complainant alleged that imputation was extremely defamatory and was designed to harm and degrade the reputation of 'complainant wilfully and it was an attempt to spoil the business of the complainant.
2. Statenient of complainant on oath was recorded in which he reaffirmed the contents of complaint. It was stated by him that the petitioners-accused were responsible for anything done in the name of the Bank and that in order to defame the complainant and in order to harm him in business circles, got published a notice/advertisement in Daily "Dawn", Lahore and Karachi dated 21-7-1997 in which the complainant was wrongfully written as Chief Executive/Director and simultaneously declared him defaulter: Amjad Ali was examined as P.W.1, one Muhammad Babar was examined as P.W.2 by the complainant at preliminary stage.
3. The trial Magistrate summoned the petitioners to face trial for offence under section 500, P.P.C.
Vide order, dated 29-7-1999.
4. Aggrieved of that, the petitioners submitted under consideration petition which was admitted to hearing vide order, dated 6-8-1999. The order, dated 6-8-1999 reads as under:-- "6-8-1999. Khalifa Shujaat Amin, Advocate.
' It is argued that Bank of the petitioners had filed a suit for recovery of Rs,1,05,56,678 in the Banking Court at Karachi. The Legal Advisor of the Bank served the complainant and others with the legal notice, which was not received, therefore, the same was published by him in Daily "Dawn", Karachi.
The publication of notice did not attract any provision of the P.P.C. In this behalf reliance is placed on the judgment reported as Mst. Hakim Mai v. The State 1993 PCr.LJ 1788.
(2) Notice for 29-9-1999. C.M. No,1 of 1999 ' This is an application for dispensing with the submission of certified copies of Annexures "A" to "K" the same is allowed subject to all just exceptions.
C.M. No,2 of 1999
(4) Notice for an early date. Meanwhile, proceedings before respondent No,2 are stayed.
(5) Copy Dasti.
(Sd.) Ihsan-ul-Haq Chaudhry, Judge."
5. The complainant filed written statement whereafter learned counsel for the parties were heard at length.
6. Learned counsel for the petitioners contended that Nusrat Ali was originally Chief Executive and Director of Messrs International Investment and Financial Services Limited which obtained considerable sum of money as loan from Platinum Commercial Bank when it was under a different management and later the petitioners assumed the management of the Bank and that recovery proceedings were initiated by the Bank against the Company and a notice was sent to its address and subsequently a notice was also published in Daily "Dawn" by a law firm and at that time affairs of the Bank were being managed by one Aman Ullah, General Attorney of the. Bank and he had instructed the Law firm to publish that particular notice. It was submitted that notice was directed against Messrs II & FSL only and for the purposes of service, names of certain persons who were associated with that Company as Directors was also given and that in the notice Nusrat Ali was not declared defaulter and reading of the notice will clearly show that only Company was called upon to repay the amount advanced to it by the Bank. It was contended that no imputation was made in respect of complainant and no offence under section 499/500, P.P.C. Was made out against the petitioners. It was submitted that the petitioners never instructed the lawyer to include his name in the said notice and since the petitioners were not author of the so-called imputation they could not be prosecuted. It was further contended that the petitioners or their Bank showed their bona fides when they filed civil suit for recovery of money against the defaulter Company and the complainant was not sued which clearly showed that they never intended to call the complainant a defaulter and as a matter of fact he was nowhere called a defaulter by the Bank. It was submitted that the complainant had presumed, which presumption was evident from the contents of the complaint, that the petitioners were responsible for publication of the name of the complainant but he had not led any evidence at the preliminary stage to show that the petitioners had instructed or directed the Law firm to do that, and since he had not banked upon any further evidence in the schedule to the complaint, his case cannot be improved upon now. It was also submitted that in the statement made by Nusrat Ali as well as his witnesses, no one stated that in their estimation or in estimation of others, the character of the complainant, moral or otherwise, was lowered and in this view of the matter the complainant had no cause of action and he cannot succeed at the trial. It was also submitted that complainant was permanent resident of Karachi but had filed the complaint at Lahore while all the petitioners were residents of Karachi and this was done with mala fides in order to humiliate the petitioners and the purpose of filing of complaint was not bona fide. It was also submitted that the complainant had escaped abroad and there was no likelihood of his return in the country in near future and trial will linger on unnecessarily and petitioners would suffer material and personal irreparable loss. It was contended that proceedings initiated by Nusrat Ali before Area Magistrate amounted to abuse of process of law and this Court has the jurisdiction to quash the proceedings in such a situation.
Learned counsel submitted that there was plethora of case-law on the subject that where the High Court finds certain proceedings as amounting to abuse of process of law or Court the case was quashed. Reliance was placed on 1993 PCr.LJ 1788 wherein a number of other precedents have also been noted.
7. Learned counsel for the respondents on the other hand submitted that complainant was a man of repute, was a well-known businessman of U.A.E. And Pakistan and by addressing him as defaulter in the notice, the petitioners-accused intended to harm his reputation as well-business and the notice was clearly defamatory and the petitioners could be prosecuted legitimately by the complainant. It was submitted that trial Magistrate had summoned the persons complained against petitioners, to face trial but instead of appearing before the Magistrate the petitioners chose to approach this Court which they could not have done. It was contended that petitioners should seek relief from the Court of trial Magistrate in the first instance and that unless this was not done the petition was not maintainable. It was submitted that where factual controversies are involved criminal cases are never quashed. It was also submitted that conduct of the petitioners also disentitled them to seek any relief from this Court as they banked upon certain fabricated record and averment were made in the petition in an oblique manner. It was submitted that alternate remedies were not availed by the accused and they have not shown any good grounds for invoking the jurisdiction of this Court. It was also contended that under the Companies Ordinance, the Company acts through the Board of Directors and whatever is done in the name of the company is deemed to have been done by Directors and the petitioners were directly liable for commission of offence under section 499, P.P.C. Which is punishable under section 500, P.P.C. It was submitted that statement made on oath by the complainant and his preliminary evidence showed existence of a prima facie case against the accused and this Court cannot substitute his discretion for that of the Magistrate and it cannot be said that no case was made out against the accused. It was submitted that there was considerable authority on the subject that discretionary relief in such cases is declined by High Court to litigants. It was also submitted that notice was issued through a Law firm but he had acted under the advice of the petitioners and he being an agent of the petitioners must have acted under the instructions of petitioners and onus lay on the petitioners to prove that Law firm acted beyond their instructions and the complainant was nowhere required to prove this fact. It was submitted that petition merited throwing out.
' Learned counsel submitted a brief note succinctly summarizing the view-point of the complainant. Learned counsel also relied upon the following case-law:--
(1) 2000 PCr.LJ 1150, (2) AIR 1982 SC 784(2), (3) PLD 1998 Lah. 71, (4) PLD 1994 SC 281, (5) 1991 PCr.LJ 1997, (6) 1987 PCr.LJ 803, (7) PLD 1967 SC 317, (8) PLD 1976 SC 461, (9) AIR 1992 SC 2206, (10) AIR 1996 SC 204, (11) AIR 1983 SC 595, (12) AIR 1981 SC 116 (1981 Cri.0 627), (13) 1968 SCM R 380, (14) 1999 PCr.LJ 258, (15) 1999 PCr.LJ 1154, (16) 1999 PCr.LJ 2099, (17) 1992 PCr.LJ 670, (18) 1992 PCr.LJ 58, (19) 1994 SCM R 2142, (20) 1986 SCM R 483, (21) 1992 PCr.LJ 834, (22) 1993 PCr.LJ 1788, (23) AIR 1976 SC 1947, (24)
PLD 1989 SC 166, (25) PLD 1974 SC 134, (26) PLD 1973 SC 236 and (27) PLD 1975 SC 331.
8. Defamation is communication to third parties of false statement about the person to injure his reputation or to deter others from associating with that person. Defamation by the printed words is libel and defamation by spoken words is slander. The defamation consists of: a false statement of facts about another; an unprivileged publication of that statement; some degree of fault depending on the type of case; and some damage or harm caused. The law considers every citizen to be respectable and aims at protecting the respect, prestige, the honour and the reputation of the citizen which he actually and in reality possesses. The criminal law of defamation is contained in section 499, P.P.C. The law contained in above provision of law is exhaustive. It enumerates parameters of the offence and also provides for privilege or defences which might be available to an accused person. Section 499 reads as under:- "Section 499.--- Whoever, by words either spoken or intended to be read, or by signs 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, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1.--- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person of living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.--- It may amount to defamation to make any imputation concerning a company or an association or collection of persons as such.
Explanation 3. --- An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4. --- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of other, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
The definition shows the necessary ingredients of the offence to be as under:--
(1) Making of imputation or defamatory statement (libel or slander);
(2) communication to a third party or publication;
(3) intention to harm or knowing or having reason to believe that such imputation will harm the reputation of such person.
9. There are a number of defences available to an accused person which are:--
(1) truth of statement made in public interest;
(2) honest opinion about public conduct or public functionaries;
(3) statement being an opinion about public conduct of a person;
(4) neutral and fair/accurate reporting of Court proceedings;
(5) honest expression of opinion about merits of the decided case;
(6) fair comment about merits of public performance;
(7) bona fide censure passed by a person in authority;
(8) accusation made by a person in good faith, to a person in authority;
(9) accusation made to safeguard the personal interest of the individual or for the public good of a person or to public;
(10) putting a person or public on caution against another for public good.
10. The imputation is a defamatory statement, accusation or charge which complainant alleges is conveyed by the matter published by the accused and concerning the complainant. Certain imputations per se are defamatory but in certain cases the meaning conveyed by the words used might by disputed between the parties. For the complainant the statement or imputation might be defamatory but for the opposite-party this might not be so. Some times is difficult to delineate between a fact and innuendo, or comment and opinion. The Court obviously is not bound to accept the plea of the complainant that the words conveyed those particular meaning which he alleges that the statement conveyed. The standard usually followed by the Court is reaction or opinion of a fair-minded person in this context. A fair comment or the opinion usually is not defamatory if made bona fide. Some times considering a certain form of words employed to be defamatory is a pure value judgment which depends on matter of personal impression or individual perception. Demand for return of money per se is not defamatory. Calling a defaulter is also not defamatory. However, calling a person wrongfully a defaulter in certain socio-political milieu might be defamatory provided the case is not covered by the ninth or tenth exceptions to the penal provision.
11. According to Ratan Lal (Law of Crimes) the evidence required for any criminal case where prosecution of accused is sought for defamation, consists of the following:--
(1) Existence of an imputation or a defamatory statement;
(2) That such imputation emanated from the accused;
(3) That the accused made or published it or communicated it to a third party;
(4) The accused intended thereby to harm the reputation of the complainant or that he knew or had reason to believe that he would do so."
12. The basic ingredient, in every case of defamation is making, by the accused, of an imputation or statement which a fair-minded person would consider to be defamatory. The second-most important ingredient of the offence is establishment of the fact that the author or origniator of the defamatory statement was that accused who was being tried by the Court. In civil tort of defamation the principal might be responsible like his agent through whom the defamatory statement is published or communicated but in criminal law it has to be proved that agent was instructed by the principal to have acted in that matter. Unless it is shown that agent of an accused had acted specifically on his instructions in a particular manner, the accused cannot he saddled with the liability for making the imputation or convicted for offence under section 500, P.P.C. The law of defamation contained in section 499, P.P.C. Is qualified and enlarged by several exceptions contained therein. The case in hand is quite simple in nature as the accused had not fallen back on any privilege which might be available to an accused under exceptions contained in section 499, P.P.C. Their case is that they did not instruct the Law firm to specifically include the name of Nusrat Ali in the list of defaulters and that the notice otherwise was not defamatory as no fair minded person after going through contents of the notice published in Daily "Dawn" would come to the conclusion that Nusrat Ali was being declared or called a defaulter.
12. The first and foremost objection raised by learned counsel for the complainant was that the petition was not maintainable; that petitioners should appear before the lower Court in the first instance and seek relief therefrom which is being claimed through under-consideration petition which was incompetent and that discretionary relief should not be extended to the petitioners.
Case-law referred to by the learned counsel essentially addresses these propositions. The High Court is the apex Court under the Code of Criminal Procedure. It has the power and also an obligation to see to it that every provision of Code of Criminal Procedure is being given effect to; that all the agencies and for a set-up under the Code remained functional, do not become dysfunctional or non-functional and for that reason this Court ordinarily does not interfere in proceedings which are sub judice before lower Courts and full liberty is given to the lower fora to exercise their jurisdiction to the maximum extent in accordance with law to determine the controversies which are pending before them. The Court, however, has unabridged and unqualified power to interfere in any appropriate case where it is found that any particular proceeding would tantamount to abuse of process of law and of the Court. The power of Court in this regard is not abridged by any provisions of law or precedent.
13. A notice was published in Daily "Dawn" dated 21-7-1999 which according to complainant was defamatory. The notice was issued to defaulters. In top corner of the notice words "Na-Dehinda" in Vernacular (and not "Na-Dehindagaan plural" was employed which showed that it was being addressed to one addressee. The notice was issued to Messrs International Investment and Finance Service Limited through Chief Executive/Director, Nusrat Ali and other Directors of II&FSL. In the body of notice no reference whatsoever was made to Nusrat Ali or Chief Executive of II & FSL and perusal of the notice clearly showed that it was issued to Messrs II & FSL. In the concluding paragraph of the notice it was clearly mentioned that an application for winding up of the company would also be moved in case the loans were not repaid. The reference throughout the notice was made to the company and not to any individual including the complainant. Any fair- minded person after going through the notice would not infer, assume or come to the conclusion that Nusrat Ali was declared, shown or called as defaulter. Obviously there was no imputation or defamatory statement made against Nusrat Ali. The complainant in his complaint had stated that he had been addressed as a defaulter where factually this was also not the case. Notice was addressed to Messrs II & FSL. In his statement made under oath the complainant improved upon his case and stated that he was held (Qaraar dia) defaulter by Messrs Platinum Commercial Bank Limited. The Bank obviously did not declare Nusrat Ali as their defaulter nor he was shown as defaulter to the public and apparently no statement which per se was defamatory in respect of or concerning complainant was published in newspaper. The petitioner at the most could have waxed some grievance that his name was wrongly associated with a company which might have been a defaulter. But that was not his case anywhere. It might be observed that it has not been denied that Messrs II & FSL was not a defaulter Company and others who were shown as Directors etc. Were not to the Directors of that Company. The complainant originally was Chief Executive and Director of Messrs II & FSL. And his name might have been given by the lawyer under an honest mistake.
14. The notice was published through Mr. Nafees Siddiqui or Messrs Nafees Siddiqui Law Associates who are not being prosecuted by the complainant. The complainant had assumed that notice in terms it appeared in paper was issued on the asking of the accused. Notice has been issued at the behest of the accused but neither the complainant nor the preliminary evidence brought on record by the complainant shows that the petitioners had called upon Messrs Nafees Siddiqui to show Nusrat Ali-complainant as defaulter of the Bank. There is no allegation and there is no evidence to this effect. The law requires that the prosecution must establish by independent evidence that lawyer was specifically instructed by his principal to make the imputation and unless this is proved by the prosecution, accused cannot be convicted. A direct nexus between the author or originator of the imputation and its publication or communication has to be established by the prosecution by independent evidence in order to succeed in a case of defamation. The century-long established position of law is stated in Law of Crimes by Ratanlal and Dhirajlal as under:-- "There must be evidence to show that the publication was made by the accused. The prosecution must affirmatively prove that the accused published the libel complained of. Admission as to publication in the written statement of the accused cannot be used to fill up the gap in the prosecution evidence. In a prosecution for libel the only evidence adduced of publication was that the particular issue of the journal containing the libel bore the statement that it was printed and published by the accused. The sworn complaint also stated that the accused published it, and the accused said in the lower Court in his written statement that what was published was a substantially true report without any malicious intention and he did not deny that he published the libel. It was held that there was no legal evidence of publication.
' It is incumbent on the complainant to produce evidence to show that the accused made or published the imputation complained of notwithstanding that the accused admits the publication when examined under section 342 of the Code of Criminal Procedure, 1898. A Magistrate is neither empowered under that section to put questions to the accused if the prosecution has not led any evidence implicating him in the offence nor is his statement admissible in evidence to fill the gap in the absence of such evidence." '
(Reference in this regard was placed on Mariano PA (1904) 10 Burma LR 304; Jeremiah v. Vas (1911) 2 MWN 576; Devi Dyal (1922) 4 Lahore 55 and Law of Crimes: Ratanlal and Dhirajlal's Twenty-Fourth Edition, pages 2470 and 2471).
15. It has been contended on behalf of the complainant that under section 196 of the Companies Ordinance, the petitioners being Directors were liable for anything done on behalf of the Bank and the Law firm must have acted under the advice of the petitioners and that they were, therefore, liable for publication of the notice. Under civil tort of defamation an agent and principal might be equally liable but in criminal law, it has to be proved by independent evidence by the prosecution or complainant that the lawyer or agent had acted and the imputation which was subsequently published or communicated was issued or sent under the specific instructions of principal. Mere presumption that this must have been done is not enough. In Nihal Singh v. Arjan Das 1983 Cri.LJ 777 (Del.). The complaint was lodged against Chairman of Company publishing dailies but the Chairman was neither the printer nor publisher nor editor and it was held that he could not be imputed knowledge of contents of their articles under section 7 of the Press Act and accordingly the proceedings launched against him were quashed. As observed above the complainant simply has assumed that he was shown to be associated with a defaulter Company on the asking of the petitioners. The notice admittedly was published by a Law firm and it would wrong to assume without evidence that the petitioners had instructed the lawyer to publish the notice in terms it appeared in the paper. In Miss Rebecca Mondal v. Emperor AIR 1947 Cal. 278 it was held that where publication was made by lawyer, client cannot be charged directly with offence of defamation.
Similarly in Subbu Chettiar v. Ayyaru Chettiar AIR 1959 Ker. 342 (V.46 C.113), where a reply was sent through lawyer containing defamatory statement, it was held that it was unsafe to convict the accused on the basis of reply and it could not be inferred that accused must be presumed to have given instructions to lawyer for that reply. In the under consideration case lawyer is not being prosecuted though there is no exception from liability apart from the exceptions contained in section 499, P.P.C. Everybody associated with libel or slander or publication thereof is equally liable to be prosecuted under the germane law. The petitioners obviously cannot be prosecuted on the mere presumption that they might have instructed their lawyer to issue or publish the notice. In the absence of specific allegation that the petitioners knowing fully well that Nusrat Ali was not associated with Messrs II & FSL had instructed their lawyer notwithstanding the fact that he had resigned from the Directorship and Office of the Chief Executive of II & FSL to include his name in the notice, the petitioners could not be tried for offence under section 499/500, P.P.C.
16. It was also contended that the complainant was permanent resident of Karachi and had chosen to file the complaint at Lahore against the petitioners who worked in Karachi in order to give rubbing to them. Though the complainant has an option to file a complaint at any place where the newspaper was circulated, yet the choice of forum by the complainant, who resided at Karachi according to Annexures "R-5" etc., whereby he chose Lahore for filing of complaint, appears to be ill-founded and motivated.
17. After perusal of record and after considering the submissions made at the Bar, I am of the considered view that the complainant is trying to overreach in the matter and complaint has been filed by him in order to air personal rancour and vendetta. The Courts do not provide an arena to parties for mudwrestling. The complainant had no bona fide cause of action. No imputation was made by the petitioners against him and proceedings having been initiated before trial Magistrate clearly amounted to abuse of process of law. This requires intervention by this Court. The Court is mandated to do that.
18. Proceedings in complaint case titled Nusrat Ali v. Muhammad Abid and others (complainant under section 500, P.P.C.) pending in the Court of Judicial Magistrate/Magistrate 1st Class, South Cantt., Lahore are hereby quashed as these tantamount to abuse of process of law and Court.