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Criminal Acquittal Appeal No. 88 of 1982, decided on 19th August, 1986.

‑‑‑Ss. 499, Explanation, 2 & 500‑‑Criminal Procedure Code (V of 1898), S.198‑‑Expression "aggrieved person" in S. 198, Cr.P.C., connotation of‑ Respondent admittedly publishing article in his journal imputing "that the Luari Click bears a develish character. That, therefore, the educated class, one and all, should muse for a while and decide whether the followers of Luari Faith are Muslims or externees"‑‑Appellate Court acquitting respondent under S. 500, P.P.C. by taking view that imputation was not directed against followers of Luari Faith and as such complaint by one of followers was incompetent and not maintainable under S. 198, Cr.P.C.‑ View taken by Appellate Court, being erroneous and S. 198, Cr.P.C, incorrectly applied, case was remanded to Appellate Court for decision on merits.‑‑[Words and phrases].

Khalid Anwar for Appellant.

Salahuddin for Respondent No. 1.

Makhdoom A. Wali for the State.

Dates of hearing: 13th and 19th August, 1986.

‑‑This appeal has called into question the judgment of the Additional Sessions Judge, Sanghar, dated 31‑3‑1982, who had set aside the conviction of the respondent under section 500, P.P.C. as ordered by Honorary First Class Magistrate, Sanghar on 9‑ 3‑1980.

2. The complainant claims to be the follower of Pir of Luari and filed private complaint that the respondent as editor and publisher of monthly "Shariat" Publication of Sukkur, has defamed, insulted and annoyed the present and late Sajjada Nashins and the Jamaat of Luari Sharif and the complainant, who is Mureed of that Dargah, by writing an article in the publication of November, 1979.

3. The case was tried by the Honorary Magistrate and Mir Mubarak Ali, complainant examined himself and filed the copy of the Risala and other documents in support of his case. He denied that the allegations about Jamaat of Luari were correct. The depositions of Peeral, Dost Ali and Abdul Wahab were recorded, who supported the complainant. The accused did not deny the publication. He examined D.W. Hafiz Muhammad Ismail, who produced various booklets and documents. The Magistrate convicted the respondent under section 500, P.P.C. and sentenced him to suffer imprisonment and warned him to desist from making such allegations. The learned Magistrate has written a long judgment and has come to the conclusion that the allegations made by the respondent has defamed the complainant.

4. On appeal the learned Additional Sessions Judge, Sanghar, acquitted the respondent under section 500, P.P.C. and carne to the conclusion that the allegations were only against the Pir of the complainant, namely, late Peer Ahmed Zaman and there was no implication against the followers of this faith and as such the complaint by one of the followers would be absolutely incompetent and was not maintainable under section 198, Cr.P.C. The learned Additional Sessions Judge did not discuss the evidence which had been produced in support of the prosecution case or in defence. His judgment was based on a technicality.

5. The complainant had also filed a revision for enhancement of sentence but the same was also dismissed by the Additional Sessions Judge.

6. Mr. Khalid Anwar has argued that the learned Additional Sessions Judge has failed to see that there was a general imputation against the followers of Luari Peer and, therefore, everyone of the member of the community was an aggrieved person. He further argued that the invitation to the general Muslims together to gather and consider, whether the followers of Luari faith are Muslims or externees is an implied allegation that the followers of Luari are not Muslims when the same is read in the context of the allegations in the said article.

7. Mr. Salahuddin for the defence submitted that it was only those members of Luari faith which believed the particular actions of Peer Ahmed Zaman, who could call themselves as aggrieved persons but since the complainant does not believe those actions of Peer Ahmad Zaman, therefore, he cannot be regarded as an aggrieved person.

8. Mr. Abdul Wali Makhdoom has supported .the stand of Mr. Salahuddin.

9. We would reproduce below the translation of allegations, which have been published by the respondent in the alleged article:‑‑

"That in the year 1922‑23 Pir Ahmed Zaman thought it worthwhile, to fool the people, to feel that there is no difference in performing the fifth fundamental ingredient of Islam, the Hajj, at Luari, or at Mecca, and thereby to wealth and riches for himself through the Hajj, and that the Hajj at Mecca was a wastage of time and energy viz. money.

To achieve this aim, he first made the people to offer (read) "Darood" to his family elders and titled the deceased Pir Muhammad Zaman as the Chief of Prophets, and as the leader of humanity, and as kind of Apostles, and lastly with all adjectives to have been God the Almighty.

And thereafter he had it called by the people that Luari was Mecca, village Pir Ashraf the Madina and a well as the Abe‑Zam- Zam, and an open space the Arfat, and titled a graveyard in Luari as Jannatul Baqi.

On the 9th Zil Haj he decorated this space in the fashion of Arfat, and gave a Hajj address (Khutba) and congratulated those present as Hajis. And then made the people call himself (viz. Pir Ahmed Zaman) the Raison 'detre' of whole creation, and the Master of the world, the owner of the skies, that he was creator, the providence, the unquestionable, the Powerful, the Almighty.

Thereafter he fixed a banner, and named it the Absolute Flag and ordered the people to stand beneath its grace (Shadow).

That the Luari Click bears a devilish character.

That, therefore, the educated class, one and all, should muse for a while and decide whether, the followers of Luari Faith are Muslims or are externees"

10. It appears to us that by calling the Luari Click having a devilish character and then giving the suggestion whether the followers of Luari Faith are Muslims or externees, the respondent had made an allegation in respect of whole Luari Jamaat and did not make any exception in that regard and, therefore, explanation‑2 of section 499 of P.P.C. was attracted in the case as it was an imputation in respect of an association or collection of persons. The view the Additional Sessions Judge took that it was not an allegation against the followers of Luari Pir, does not seem to be supported from the article published by the respondent. We are, therefore, of the view that the Additional Sessions Judge has incorrectly applied section 198 of Cr.P.C. to this case and that he should have dealt with the evidence in the case on merits. We do not want to deal with the evidenciary aspect of the case because we are of the view that it is a right of defence to have two opportunities before the Courts which can deal with the evidence in detail. We do not want to deal with the evidence because it is the function of the lower Appellate Court to have dealt with the same. The case is, therefore, remanded back to Additional Sessions Judge, Sanghar to decide the appeal of the respondent on merit. This appeal is, therefore, accepted.

S.G.D./M‑57/K Order accordingly.

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