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Criminal Petition for Special Leave to Appeal No.8 of 1987, decided on 23rd May, 1987.

---S.417(2)--Penal Code (XLV of 1860), S.499, Exception 2- Appeal against acquittal--Leave to appeal--Acquittal of accused in defamation case ordered on ground that 'he was a public servant and his case fell within Exception 2 to 5.499, Penal Code, and offence of defamation was thus not constituted--Leave to appeal, against acquittal not granted.

Rana Abdul Rahim Khan for Petitioner.

The under consideration Petition for Special Leave to Appeal is directed against the order dated 8-2-1986, passed by the learned Assistant Commissioner, Faisalabad/ Magistrate First Class, Faisalabad, whereby he acquitted respondent No.l (hereinafter referred to as the respondent) Bashir-uz-zaman, under section 249-A, Cr.P.C. who was involved in a complaint case filed by the petitioner against him under section 499/500, P.P.C.

2. The petitioner herein is an Assistant Professor of Physics, Government College, Faisalabad and was appointed as paper-setter of the subject of Physics for three years effective from 1983. He thus set the papers for the year 1984. The respondent, Bashir-uz-Zman is also an Assistant Professor and Member of Board of Intermediate and Socondary Education, Sargodha. Presently, he is employed as Principal, Government Inter College, Bhera, District Sargodha. He was appointed as Inspector to check up the malpractices and cases of unfair means in different centres under the jurisdiction of Board of Intermediate and Secondary Education, Sargodha.

3. One of the conditions for paper-setter is that none of his relatives should be appearing in the examination in which he is appointed as q paper-setter.

4. During the course of inspection conducted by the respondent in his capacity as Inspector, he found that one Shahid Mahmood, Roll No.513, happened to be a maternal-nephew of the petitioner. The said candidate, however, emphatically denied his relationship with the petitioner. Some writing was, however, obtained from Shahid Mahmood. He (Shahid Mahmood) subsequently filed a complaint against the respondent under section 506/218/193, P.P.C. In that complaint also, the respondent was acquitted under section 249-A, Cr.P.C. Subsequently, the present petitioner filed a complaint under section 499/500, P.P.C. against the respondent. In this petitioner's complaint also the respondent was acquitted through the impugned order.

5. It has been contended on behalf of the petitioner that the learned Magistrate has acquitted the respondent mainly on account of the consideration that in the previous complaint filed by Shahid Mahmood also he was acquitted although section 403, Cr.P.C. has no application because the subsequent complaint filed by the petitioner was for different reasons and in the subsequent complaint he took exception for his defamation. It has also been urged that the respondent was appointed as Inspector for examination centres located within the civil district of Jhang and, therefore, he had no authority to inspect the centres located in the district, of Faisalabad.

6. The contentions on behalf of the petitioner have been considered. There is no merit in these averments. As a matter of fact the acquittal of the respondent through the impugned judgment has been ordered on the ground that the petitioner as also the respondent being public servants, the case fell within the second exception to section 499, P.P.C. and, therefore, the offence o defamation was not constituted. The acquittal has not been ordered on the ground that it was a case of second prosecution within the meaning of section 403, Cr.P.C. Moreover, the respondent being Member of the Board of Intermediate and Secondary Education, Sargodha, could lawfully inspect any centre falling within the jurisdiction of the said Board. Admittedly, Faisalabad falls within the territorial jurisdiction of Sargodha Board.

7. The defamation has been defined in section 499 of the Pakistan Penal Code, the relevant portion of which reads:

"Whoever by words either spoken or intended to be read, or by signs or 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."

Second exception to section 499 ibid reads:-

"It is not defamation to express in good faith any opinion whatever respecting the 'conduct of a public servant in the discharge of his public functions, or respecting his character, so far his character appears in that conduct, and no further."

8. It is a common ground between the parties that the petitioner is a public servant in his capacity as Assistant Professor of Physics Government College, Faisalabad as also paper-setter of the subject of Physics for three years effective from 1983. The respondent in his capacity as Inspector opined that one of the candidates appearing in the subject of Physics in the examination for the year 1984, namely, Shahid Mahmood, Roll No.513, happened to be a maternal-nephew of the petitioner and in such circumstances the petitioner was debarred to set the paper when his relative was appearing in the examination for the said year. Nothing more has been said, written or published by the respondent who himself is a public servant. In such circumstances the case falls within Second Exception to section 499, P.P.C: and hence no exception can be taken to the finding recorded by the learned Magistrate to the effect that the offence of defamation was not made out.

9. For the foregoing reasons, there is no substance in the under consideration Petition for Special Leave to Appeal and the leave as prayed for is, therefore, refused in limine.

M.Y.H./M-229/L Petition dismissed.

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