1. By this Criminal Miscellaneous Application under section 561-A, Cr.P.C. The applicants/accused Abdul Kareem, Muhammad Usman, Muhammad Ameen, Muhammad Shareef, Moula Bux and Azizullah have sought the following relief:
(a) To quash the proceedings of the direct complaint No,61/98 titled Abu Zaffar v. Jamil and others under sections 500, 501, P.P.C. Pending trial in the Court of Judicial Magistrate-I, Naushahro Feroze.
(b) That any other relief, which this Honourable Court deems fit and proper may also be awarded to the applicants. The brief facts of the prosecution case as disclosed by the complainant Abu Zaffar Qureshi in the direct complaint filed before the learned Judicial Magistrate I, & F.C.M., Naushahro Feroze are that the respondent No,1/complainant is a highly educated person and is serving as P.A./Stenographer to the Superintendent of Police, Naushahro Feroze. He bears good record and reputation.
2. Respondent No,2/opponent Jamil and respondent No,3/opponent Ghulam Akbar Panhwar are reporters of Daily Newspapers 'SAWAAL' and 'SINDH'. The applicants/accused 3 to 6 are related inter se. Applicant/accused No,3 had entered into an agreement on 27-2-1996 with the respondent No,1/complainant for the sale of 0-75 paisa share in S.Nos.206 and 207 of Deh Shaeenh Verho Tapo Kandechuky, Taluka Khairpur Nathan Shah at the rate of Rs,60,000 per acre. Out of the sale consideration, an amount of Rs,1,20,000 was paid by the respondent No, 1/complainant to the applicant/accused No,3 and the same was acknowledged by him. The applicant/accused after receiving the balance consideration, was avoiding to execute the sale-deed in favour of respondent No,1/complainant. Therefore, on 21-3-1996 respondent No,1/complainant sent notice through his Advocate. Whereupon the applicant/accused No,1, 2, 3, 4, 5 and 6 were annoyed. The applicants referred the matter to one Sardar Dr. Asad Ali Khan Leghari where they admitted the claim of respondent No,1 and handed over the possession of disputed land to respondent 1 alongwith standing crop as per written agreement dated 27-2-1996. It is further stated that subsequently applicant/accused 5 backed out from the said agreement and got published false and fabricated news in the aforesaid Newspapers in order to defame him in the society with the result, friends, relations dissociated with him. He was degraded in the eyes of his high-ups and general public. The respondent 1/complainant filed complaint under sections 499, 500, 34, P.P.C. The learned Judicial Magistrate I and F.C.M., Naushahro Feroze after recording the statement of complainant only, passed the impugned order on 19-5-1998. I have heard Mr. Shafi Muhammad Memon, learned counsel on behalf of applicants/accused, Mr.Imdad Ali Awan, learned counsel on behalf of respondents/accused 2 and 3, Mr. Saifuddin Shah, learned counsel on behalf of respondent 1/complainant and Mr.Ghulam Sarwar Korai, learned counsel on behalf of Additional Advocate-General for the State. I have also perused the material placed on the record. A glance over. Sections 499 and 500, P.P.C., shows that under the former provision of law imputation/defamation has been defined whereas under the latter provision of law punishment has been prescribed. The section 499, P.P.C. Postulates that a person is guilty of defamation if he, by words either spoken or intended to be read, or by signsor by visible representation makes or publishes any imputation concerning any person intending to harm, knowing or having reason to believe that such imputation will harm the reputation of such person. But it is subject to just exception i,e, public good and opinion expressed in good faith respecting the conduct of public servant in the discharge of his public functions or character and opinion expressed in that context in good faith for public good. The condition precedent for the same is that it was expressed publicly free from malice and bona fide in public interest. Mere publication of imputation does not itself constitute defamation.
3. Thus for constituting an offence of defamation the mense rea or intention is essential ingredient.
4. The article so published must be libellous and it lowered down the reputation of the person. It will be pertinent to reproduce hereinbelow the alleged defamatory news items published in Daily Newspapers 'SINDH' and 'SAWAAL' in order to arrive at the just decision of the matter as well as for convenience sake:-- "DAILY SINDH HYDERABAD 24th January. 1998 STENOGRAPHER OF SSP, NAUSHAHRO FEROZE OCCUPIED THE LAND OF PEOPLE OF KHAIRPUR NATHAN SHAH. Mehar (N.R.) The residents of Khairpur Nathan Shah, Moula Bux and Abdul Karim made a complaint here to the journalists that a Stenographer of S.S.P., Naushahro Feroze has on the basis of forged documents got occupied our land situated in Deh Sheehan Verho S.Nos.206 and 207 and he has guarded land with criminal peoples, who had removed sugarcane crop from the harvested land.
5. They informed that we had made a complaint to the S.D.M., Mehar who ordered that the crop should not be cultivated till the decision of case but no such compliance was made. They have appealed to the Chief Minister, Sindh, I.-G. Sindh and D.C., Dadu for holding judicial enquiry for occupying land and justice be provided to us.
6. DAILY SAWAAL HYDERABAD 24th January, 1998 STENOGRAPHER OF SSP, NAUSHAHRO FEROZE OCCUPIED OUR LAND ON THE BASIS OF FORGED DOCUMENT RESIDENTS OF K.N. SHAH.
7. Mehar (From Jameel) Stenographer of S.S.P., Naushahro Feroze Abu Zafar, by taking advantage of his position and through forged document got our land occupied -- such complaint was made by the residents of Khairpur Nathan Shah namely Moula Bux and Abdul Karim and others in Press Club, Mehar. They said that above Stenographer (sic) in our land situated in Deh Sheehan Verhos.
8. Nos.206 and 207 where the sugarcane crop is standing and he by occupying land through criminal peoples is trying to cut sugarcane crop. In this connection S.D.M., Mehar had also passed order under section 145, Cr.P.C. That the sugarcane be kept in Amanat. In spite of that order said persons are removing the sugarcane. They appealed to Chief Minister, Sindh, I.-G., Police, Sindh and D.C., Dadu for holding judicial enquiry against Stenographer for possessing forged document and justice be provided to us else we will file our case before the High Court."
9. The plain reading of the above news items shows that the applicants/accused held a Press conference and complained about the respondent No, 1/complainant and apprised the Press Reporters about the violation of the order of the Court, committed by the respondent No,1/complainant.
10. The perusal of the material placed on record shows that in the complaint under sections 499, 500, P.P.C., no specific instance has been quoted/cited nor any witness was examined by the complainant to substantiate that his reputation was lowered down in the eyes of any of his superiors, friends or persons of general public. He even failed to examine any of his relation who discontinued the contacts with him after the publication of the articles reproduced herein above.
11. The allegations made in the complaint are of general nature.
12. It is a matter of great concern that the trial Court also without applying its judicial mind, issued the process in haste and failed to consider that the prima facie evidence for the purpose of sections 499, 500, P.P.C. Has been lacking in the case. The public man cannot claim amenity from criticism even when he holds public/official position.
13. The criticism is essential for the healthy society as it is meant for the improvising the society. Thus a newspaper acts within its legitimate sphere when it offers criticism of what he considers and bona fide believes to be good for the community. This privilege is only available if the article was not published out of malice and personal ill-will. In the case of Aun Saieed Hashmi and another v. The State and 2 others PLD 1976 Karachi 706 it was observed that where a statement is published for public good and to safeguard the interest of its maker and there was no malicious motive involved, no offence of defamation is made out against the accused.
14. In the case in hand nothing was reported/published or printed by the newspapers of their own and they did not criticize, but what was stated by the applicants/accused before them, it was reproduced. It will be pertinent to reproduce hereinbelow Article 19 of the Constitution of Islamic Republic of Pakistan:-- "19. Freedom of speech, etc.--Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the Press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, commission of or incitement to an offence."
15. The plain reading of the abovesaid Article shows that fundamental right of Press was protected in publishing news item against the action for defamation. The scope of the freedom of the Press was widened by the 4th Amendment Act of 1975. In the case of Majid Nizami, Prop. The Nation and Nawa-i-Waqt v. Sheikh Muhammad Rashid PLD 1996 Lah. 410 it was observed that the public man or public property and discussion of their conduct in public affairs cannot be denied. Right as well as duty of criticism must not be stifled by putting curbs on those responsible for reporting to public conduct. In a free democratic society for general public, press is the only medium through which disclosures about doings of the persons holding public offices are possible. It is almost too obvious that who owns office in Government and who are responsible for public administration are, and must always be open to public criticism. At the same time, it is not less obvious that the very purpose of criticism levelled at those who conduct public affairs by their conduct is to undermine public confidence. It is further observed that the right of people to speak out through a free Press in hallmark of democratic society. Also constitutionally are rights of free speech and freedom of Press. Far from creating sensational news it is expected of Press to carry reports about people indulging in any sort of irregularities. The publication of reports considered to be in public interest, thus, goes to make Press powerful. Media is supposed to take lead in reflecting if anything wrong is taking place. Press is also supposed to highlight the problems as well as successes in society considering as a national duty but not to go too far infuriating out information. The omission of word "defamation" from Article 19 of the Constitution by Fourth Amendment Act (1975) implies that press had a qualified freedom to publish any material which comes to its notice, though it may be considered by someone to be defamatory for him. At page 534 of the said report it was observed that the freedom of Press hardly requires any emphasis. It is essential not only for the healthy growth of democratic norms but also for inculcating awareness in the citizen and for reflecting public opinion. Its ultimate object is protection of the rights of citizens. In an accountable democracy, it is a common practice that those who find no other venue of venting their views on matters of public interest use columns of Press for this purpose. The ordinary people on getting an opportunity, can express opinion on any issue of public importance, if not otherwise at least through the traditional "letters to the editor". In the report at page 536, it was observed that the journalists cannot expect to be walled apart from the community in which they live. The publications in newspapers should be seen in total perspective of social and political life. Their impact would be determined keeping in view the legal and Constitutional provisions relating to libel and defamation. The freedom of Press is relevant for reason that a society, their rule of law in all its aptitude prevails, allows censor of people to fullest extent to uphold freedom of expression guaranteed to them by Constitution. It is further observed at page 539 that the newspapers have professional and social obligations to honestly reproduce information to the public, to educate the people and inculcate in them an awareness on all subjects of national interest. They also play an important role in bringing awareness in public about their leaders and in building public opinion with the object of betterment of the society. For this reason law recognizes importance of expression of views or making statements as social or moral duty and grants a privilege from action for libel and defamation if made honestly, justly and fairly. Honest and fair reporting of a public statement or bona fide expression of opinion on a matter of public interest is not actionable even if it does not come to be true. The presss as a fourth pillar of the State has carved out its place in the society by exposing fearlessly the evils which afflict it, and, one of them is the good use or the bad use to which people put the powers placed at their disposal as trust. In doing so, reporters should be absolutely sure of facts and to ascertain or check before publishing them, lest they should cause irreparable loss to the person concerned.
16. The upshot of the above discussion is that no prima facie case under sections 499, 500, P.P.C. Has been made out and continuance of the proceedings before the trial Court would be abuse of the process of the Court.
17. Consequently, the application for the quashment of the proceedings is allowed and proceedings pending before the trial Court against applicants/accused 1 to 6 and respondents/accused 2 and 3 are hereby quashed.