Shabana Mustafa daughter of Ghulam Mustafa has brought the instant criminal miscellaneous application for quashing the proceedings pending before the Judicial Magistrate S.30, Model Town Courts, Lahore under section 500, P.P.C. Initiated at the instance of her former husband Dr. Muhammad Khalid arrayed as respondent No, 1 .
2. Facts necessary to be dilated upon for effective adjudication are that the petitioner was married to respondent No,1 on 11-3-1995 but unfortunately differences developed between the spouses compelling the petitioner to leave the house of her husband on 25-6-1995. Respondent No,1 filed a suit for restitution of conjugal rights before the Judge. Family Court, Lahore whereas the petitioner filed suit for jactitation of marriage with alternate prayer of dissolution of marriage before the Judge, Family Court, Islamabad. On 13-6-1997 suit of the petitioner for dissolution of marriage was decreed on the ground of cruelty and respondent No,1 's suit for restitution of conjugal rights was dismissed on 17-9-1997. Respondent No,1 filed an appeal against the decree granted to the petitioner dissolving her marriage with respondent No,1 which was dismissed by the Additional District Judge, Lahore and Constitutional petition laying challenge to the decree of dissolution of marriage was also dismissed on 5-3-1999.
3. On 21-10-1997 respondent No, 1 filed a. Complaint under section 380, P.P.C. 14 Hadd and under sections 499, 500 and 506, P.P.C. Against the petitioner and her parents before the Magistrate, Islamabad. After considering preliminary evidence Magistrate summoned only the petitioner under section 500, P.P.C. Later, on the application of the petitioner before the Hon'ble Chief Justice of this Court the complaint was transferred to the Judicial Magistrate S.30, Model Town, Lahore.
4. Petitioner moved an application under section 249-A, Cr.P.C. Praying for her acquittal on the ground that no case for her conviction was made out on the bare perusal of the contents of the complaint. The application was dismissed by the Magistrate, Section 30 Model Town Courts, Lahore on 22-5-1999 on the ground that the petitioner after having been summoned as an accused did not agitate the said order, therefore, her application for acquittal before recording of any evidence was not entertainable and as such dismissed the same. It was also held that letter dated nil written by petitioner Shabana Mustafa to the Prime Minister of Pakistan was prima facie defamatory in nature. In the same order it was observed that similar application can be brought after recording some evidence it was so desired by the petitioner.
5. Order of dismissal was challenged in revision before the Sessions Judge, Lahore and the same was entrusted for adjudication to the Additional Sessions Judge, who, vide his order dated 21-7- 2000 dismissed the revision on the same grounds and reasoning which prevailed with the Magistrate.
6. Learned counsel for the petitioner has contended that the basis of the complaint made by respondent No,1 is an application allegedly written by the petitioner to the Prime Minister of Pakistan whose Para.XVII being relevant is reproduced as under:- "That most of the people of Village Chatta Batta and surrounding villages believe that my father- in-law Babu Muhammad Sadiq and mother-in-law Mst. Kalsoom are drug trafficker, professional blackmailers and can do anything for collecting easy money. Although I could not comment on the correctness or otherwise of the opinion of the general public yet the same is not altogether baseless."
7. Learned counsel for the petitioner taking his argument to its logical conclusion submitted that the reproduced paragraph could at the most constitute defamation against the father and mother of respondent No,1 who have not brought the complaint and the action for defamation under the criminal law being in nature of a personal wrong, only the person wronged can bring the complaint. In other words learned counsel clarified that either father or mother of respondent No,1 could have moved the complaint, however, by no stretch of law respondent No,1 has any locus standi to move the present complaint. It was next contended that the preliminary evidence recorded did not debar her to make a challenge that no case is made out in the complaint under section 249-A, Cr.P.C. There being plethora of case-law that such an application can be brought at any stage rather the words of section itself expressly vest the accused with the right to bring such an application at any stage of the proceedings even if no evidence has been recorded. It was also contended, by placing on the file of this Court, judgment of Civil Judge-V, Mansehra, whereby suit of Muhammad Sadiq Khan, father of respondent No,1, against petitioner Shabana Mustafa for recovery of Rs,80,00,000 by way of damages, on the basis of the same alleged defamatory letter written to the Prime Minister of Pakistan was dismissed on 26-6-2000, on the ground that Civil Courts being the Courts of plenary and ultimate jurisdiction the matter was thoroughly thrashed and adjudicated by the said forum, therefore, criminal complaint regarding same subject-matter cannot now proceed.
8. Learned counsel appearing for respondent No,1 stated that the letter written by the petitioner to the Prime Minister of Pakistan not only defamed the father and mother of respondent Nd.1 but also the respondent before his relatives, friends and public-at-large as wide publication was given to the said letter which was marked to the Deputy Commissioner, Mansehra, the original place of abode of respondent No, 1, therefore, the complaint was filed by the person who was competent to do so in the eyes of law. Learned counsel for the respondent reiterated the stance taken by him before the trial Court and the revisional Court that the petitioner having failed to challenge the order dated 12-2-1998 wherein she was summoned as an accused by the Judicial Magistrate Section 30, Islamabad, application under section 249-A, Cr.P.C. Was not maintainable as no evidence had been recorded. In support of his arguments he referred to Malik Muhammad Ibrahim v. State 1985 PCr.LJ 929 and M. Yaseen v. The State 1994 PCr.LJ 1939. It was further urged that petition for quashing the F.I.R. Under section 561-A, Cr.P.C. Was not maintainable against the order dated 21- 7-2000 passed by the Additional Sessions Judge, Lahore in revision.
9. I have attended to the arguments of the respective counsel with considerable application of mind and have also scrutinized the record made available on the file.
10. Section 499, P.P.C. Defines defamation which for the facility of reference is reproduced below:- "Defamation.-Whoever by words either spoken or intended to be read, or by sign or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reasons 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 4 of section 499, P.P.C. Is also relevant and is reproduced:-- "No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his case or 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."
11. There is no cavil with the proposition that in order to move the machinery of criminal law any person can agitate the matter either under section 154, Cr.P.C. Or can bring a complaint under section 200, Cr.P.C. However, there are certain offences which can only be brought by a person aggrieved of such an offence.
12. Section 198 of the Code of Criminal Procedure provides that no Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offences: ' Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf.
13. Chapter XXI of the Pakistan Penal Code relates to an offence of defamation. According to the referred to provision of law the complaint can only to be brought by some person aggrieved by such offence. The only person aggrieved by imputation made in Para. XVII of the letter allegedly written by the petitioner to the Prime Minister of Pakistan, is the father or mother of respondent No, 1 . The mother could bring a complaint through another person after taking leave of the Court.
Similarly father could bring a complaint directly. How the respondent is aggrieved by the imputation contained in the referred to letter is beyond comprehension, conclusion receives support by reading Explanation 4 reproduced above, which states that the reputation of a person can only be harmed by imputation which lowers his moral or intellectual character in the estimation of others. In Explanation 4 reference has been made to a person who has been defamed and against whom the imputation is directly made. Aggrieved person does not mean the next kith and kin of a person defamed. If interpretation placed by counsel for respondent No,1 is given to the word "aggrieved" not only section 198, Cr.P.C. Would become redundant but any relative of a defamed person could bring an action for defamation, which is not the intent of the law-giver spelt out in the referred to provision of law. Support is also received from the perusal of Explanation 1 to section 499, P.P.C. Which provision empowers the near and dear ones of a deceased person to bring action if an imputation is levelled against the deceased.
14. Viewing this proposition from another angle there was no impediment or hindrance in the way of the father of respondent No,1 Muhammad Sadiq, to bring an action for defamation under the criminal law as he had already brought a civil suit in the Court of Civil Judge, Mansehra which was dismissed.
15. Although I have not been assisted by either of the learned counsel representing the parties on this subject but my own research confirms my view after going through case-law that where an imputation is made regarding moral character of a female who is living in the shelter of her father, brother or husband, a complaint can be brought undoubtedly by the aforesaid male persons because in that eventuality the male kith and kin in whose abode the females are residing are also indirectly affected by imputation concerning the moral character of the female. This is not the position in the instant case. Respondent No,1 is an adult male serving in the medical profession at Islamabad living independently. To support this proposition reference is invited to the case of Ramdhani v. Swamidin reported in AIR 1953 Vindh. Pra. 9, in which case sister was defamed by her former husband and complaint was brought by the brother, it was held that brother is not an aggrieved person and could not file complaint.
16. In the case Ghulam Murtaza v. State and others reported in PLD 1966 Karachi 337, a letter was addressed to the father attacking character of his son, it was held that complaint by the father could not be entertained, amongst other reasons, on the ground that there was no imputation made against the father regarding his moral or intellectual character.
17. The upshot of the discussion, therefore, is that the complaint brought by respondent No,1 was without any locus standi and no action under the law could be taken upon it.
18. The argument of the learned counsel for respondent No,1 that this Court is bereft of its jurisdiction under section 561-A, Cr.P.C. To correct orders passed by the Sessions Judge under section 439-A, Cr.P.C. Is negated by numerous rulings of the apex Court. To cite some of them reference is invited to the case of Mst. Sarwar Jan v. Ayub and another reported in 1995 SCMR 1679 wherein it was held that section 561-A, Cr.P.C. Bestows inherent powers upon the High Court to check abuse of process of a Court which is extensive in its application and section 439, Cr.P.C. Does not circumscribe its jurisdiction. Words "nothing in this Code" have been intentionally used by law- makers to unbridle the scope of section 561-A ibid. because the conditions justifying interference by the High Court under section 561-A, Cr.P.C. Are to give effect to any order under the Criminal Procedure Code and to prevent abuse of process of any Court or to secure, the ends of justice.
19. Reference can also be conveniently made to the case of Haji Sher Hassan Khan v. Hidayatuallah and another reported in 1996 SCMR 1476 wherein it was discussed that the inherent powers of High Court were not affected by exercise of revisional jurisdiction by Sessions Court and clause (b) of subsection (4) of section 439, Cr.P.C. Does not limit or affect the inherent power conferred on the High Court under section 561-A, Cr.P.C.
20. The next argument of the learned counsel that having failed to challenge the order of summoning of the petitioner resort to section 249-A, Cr.P.C. Could not be made till recording of the evidence is also devoid of force. Section 249-A, Cr.P.C. When reproduced reads as under:- "Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
21. The bare reading of the provisions of law makes it abundantly clear that an application under section 249-A, Cr.P.C. Can be brought at any stage and there are no fetters placed by law or the right of an accused has not been circumscribed by any conditions under the law. As a matter of fact an application under section 249-A, Cr.P.C. Was, in other words challenge, to the order for summoning of the accused by the trial Judge. It may also be kept in mind that Magistrate Section 30, Islamabad issued process to secure attendance of the petitioner whereafter she took successful steps in moving the Hon'ble Chief Justice to get the complaint transferred to the Magistrate at Lahore. Therefore, time consumed in this exercise delayed submission of an application under section 249-A, Cr.P.C. Case of Malik Muhammad Ibrahim v. State etc. Reported in 1985 PCr.LJ 929 can be distinguished on the ground that the Court came to the conclusion that the complaint disclosed a prima facie case therefore, it was held that section 249-A, Cr.P.C. Was not applicable at that stage.
22. The other case cited by learned counsel for respondent No,1, M. Yaseen v. The State and another is totally irrelevant.
23. No other point was canvassed before me.
24. The upshot of the discussion, therefore, is that the complaint filed by respondent No,1 who has no locus standi to have recourse to such action, the ramification under the law would be to dismiss the complaint as having been brought by a person not authorised under the law to do so.
Resultantly I accept the instant petition and quash the proceedings in the complaint case initiated by respondent No,1 and now pending trial before Malik Nisar Ahmad, Judicial Magistrate S.30, Model Town Courts, Lahore to be without lawful authority and of no legal effect.