PLD 2022 Lahore 773
Civil and criminal litigation proceeding simultaneously---Scope---No universal principle exists to the effect that whenever the subject-matter of a civil suit and a criminal case is the same or similar the proceedings before the criminal court must necessarily be stayed.
Decision to stay criminal proceedings is purely a matter of discretion---However, the guiding principle is whether the accused is likely to be prejudiced if the proceedings continued---If his criminal liability is dependent on the result of civil litigation or is so intimately connected with it that there is a danger of grave injustice if there is a conflict of decisions, criminal proceedings must be held in abeyance.
Muhammad Akbar v. The State and another PLD 1968 SC 281; Abdul Majid v. Nawab Din 1973 SCMR 373; Muhammad Tufail v. The State and another 1979 SCMR 437; Abdul Haleem v. The State and others 1982 SCMR 988; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others 2000 SCMR 991; Maqbool Rehman v. The State and another 2002 SCMR 1076; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Sheraz Ahmad and others Fayyaz-ud- Din and others 2005 SCMR 1599; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Seema Fareed and others v. The State and another 2008 SCMR 839; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; Muhammad Aslam (Amir Aslam) v. District Police Officer, Rawalpindi and others 2009 SCMR 141; Zafar and others v. Umar Hayat and others 2010 SCMR 1816; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Sameen Jan (Naib Tehsildar and others v. The State and others PLD 2011 SC 509; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 and Muhammad Aslam v. The State and others 2017 SCMR 390 ref.
Constitution of Pakistan---
----Art. 199---Criminal Procedure Code (V of 1898), S. 249-A---Constitutional jurisdiction---Power of Magistrate to acquit accused at any stage---Quashing of FIR---Vires of statute, challenge to---Maintainability---Scope---Where the accused persons while seeking quashing of FIR had assailed the vires of a statutory provision and had raised other questions involving interpretation of the Constitution and statutory law, High Court observed that such questions could not be decided by the Magistrate and that too in an order on the application under S. 249-A, Cr.P.C.---Constitutional petition was held to be competent and was disposed of accordingly.
Constitution of Pakistan---
----Art. 199---Criminal Procedure Code (V of 1898), Ss. 561-A, 249-A & 265-K---Constitutional jurisdiction---Quashing of FIR---Alternate remedy, availability of---Effect---Jurisdiction of the High Court under Art. 199 of the Constitution is extraordinary and should be invoked only when there is no adequate and efficacious alternative remedy---Generally speaking, S. 249-A, Cr.P.C. and S. 265-K, Cr.P.C. in the cases triable by the Sessions Court) is considered to provide such remedy as it empowers the court to acquit the accused at any stage of the trial if it thinks that the charge is groundless or there is no probability of his being convicted of any offence---High Court would not interfere in the normal course of the trial and quash the criminal proceedings while exercising powers under Art. 199 of the Constitution or S. 561-A, Cr.P.C.---Argument that some authorities hold that the bar is not absolute---Held, every case has its own facts and in exceptional circumstances the High Court can intervene.
Constitution of Pakistan---
---Art. 19---Prevention of Electronic Crimes Act (XL of 2016), S. 20---Freedom of speech---Offences against dignity of a natural person---Scope---Petitioners attacked the constitutionality of S. 20 of Prevention of Electronic Crimes Act, 2016, (PECA) on the ground that defamation is not among the restrictions imposed by the legislature in Art. 19 of the Constitution and does not have even a proximate connection with any of them---Petitioner also pointed out that the original Art. 19 (as it stood in the 1973 Constitution) included defamation in the list but it was omitted later on---Validity---Fundamental rights essentially afford protection against contraventions by the State and its instrumentalities---Wrong of defamation is not a public but a private wrong---Legislature is competent to make a law relating to defamation even under the amended Art. 19---Section 20 of Prevention of Electronic Crimes Act, 2016, may also be justified on the ground that defamation and libel may endanger public order and incite an offence-the interests expressly protected under Art. 19 of the Constitution---Parliament was competent to enact S. 20 of Prevention of Electronic Crimes Act, 2016.
Prevention of Electronic Crimes Act (XL of 2016)---
----S. 20---Penal Code (XLV of 1860), S. 499---Offences against dignity of a natural person---Defamation---Scope---Explanations and the exceptions set out in S. 499, P.P.C. would be read into S. 20 of the PECA by virtue of Ss. 28 & 50 of PECA.
----S. 20---Offence against dignity of a natural person---Use of offensive and derisive language---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016 shows that it encompasses a wide range of objectionable/offensive acts and "harm to reputation" or to put it in another way, defamation - is only one of them---Petitioners' contention that it stifles free speech is misconceived---Nobody can be given a license to defame another or do anything that may impinge on his dignity---Phraseology of S. 20 is broad enough to cover not only defamation but also the use of offensive and derisive language.
----S. 20---Offence against dignity of a natural person---Defamation---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016 sanctions attacks on the dignity of a natural person---Defamation is one of the things that violates it.
---Art. 14---Prevention of Electronic Crimes Act (XL of 2016), S. 20---Inviolability of dignity of man---Offences against dignity of a natural person---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016, is not unconstitutional---Act is rather in conformity with Art. 14 of the Constitution and promotes the right to dignity enshrined therein.
Criminal Procedure Code (V of 1898)---
----Ss. 155 & 154---Prevention of Electronic Crimes Investigation Rules, 2018, Rr. 6 & 7---Information in non-cognizable cases---Investigation and case procedure---Scope---Rule 6(3) of Prevention of Electronic Crimes Investigation Rules, 2018, (PECIR) stipulates that a complainant may file his complaint in-person, via e-mail, fax, telephone or other available digital means to a Cybercrime Reporting Centre---Rule 7 retains the distinction between cognizable and non-cognizable offences---However, it is not happily worded and appears to be incoherent---Rule 7(1) lays down that the Circle in-charge may allow registration of a case on the complaint received under R. 6(3) and nominate an investigation officer while R. 7(4) enjoins that if the offence alleged in the complaint is cognizable, the Circle in-charge shall order registration of case after seeking legal opinion and approval of the Additional Director in the zone---On the other hand, R. 7(5) ordains that non-cognizable offences are to be dealt with according to S. 155, Cr.P.C. and permission of the competent court is necessary for their investigation---Tension between different provisions of R. 7 can be resolved by holding that when a complaint is received at the Cybercrime Reporting Centre the Circle in-charge may allow it to be registered for further processing and nominate an officer therefor---First Information Report is to be lodged only if it is found that a cognizable offence has been committed under the PECA and that too after completing the requirements of R. 7(4) but in the case involving non-cognizable offence the Circle in-charge should seek permission of the competent court for investigation.
----Ss. 155 & 537---Prevention of Electronic Crimes Investigation Rules, 2018, R. 7---Information in non-cognizable cases---Investigation and case procedure---Scope---Petitioners claimed that R. 7(5) of the Prevention of Electronic Crimes Investigation Rules, 2018, has not been followed---Validity---Even if it is assumed that the petitioners' stance is correct, they cannot get any benefit because there is nothing on the record which may suggest that they have been prejudiced or the officers of investigating authority were dishonest or had malice against them---Any irregularity or defect in investigation stands cured under S. 537, Cr.P.C.
Constitution of Pakistan---
----Art. 19---Freedom of speech---Freedom of expression---Restrictions---Reasonableness of restrictions---Defamation---Qualified privilege.
Freedom of speech is understood as a wider concept of 'freedom of expression' that also includes freedom of press, the right to petition government and freedom of political association. Freedom of speech is characterized as the indispensable condition of nearly every other form of freedom and is, therefore, regarded as a fundamental international human right.
Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers.
Freedom of expression is intrinsically important; it is valued for its own sake. But it is well recognized that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfillment of individuals in society; Secondly, the best test of truth is the power of the thought to get itself accepted in the competition of the market; Thirdly, freedom of speech is the life-blood of democracy. The free flow of information and ideas informs political debate. It is a
safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the government and administration of justice of the country.
Albeit freedom of speech and expression is fundamental, it cannot be unfettered. There is a general consensus that some limits must be placed on what can be said because unlimited speech can cause immense harm and offence. The right to freedom of speech and expression must be balanced with other societal interests. High Court was to decide how much value we place on speech in relation to other important ideals such as privacy, security, democratic equality and the prevention of hram. Speech is a part of a package deal of social goods and there is nothing inherent to speech which may suggest that it must always win out in competition with other values.
Article 19 guarantees not only freedom of speech but also of expression. 'Expression' seems to be wide enough to embrace 'expressive conduct'. Article 19 expressly allows imposition of restrictions to protect certain interests, viz., the glory of Islam, the security of Pakistan, friendly relations with other countries, public order, decency, morality, and in relation to contempt of court, commission of or incitement to an offence.
No straitjacket formula exists to determine reasonableness of restrictions. Legislative view of what constitutes reasonable restriction is not conclusive and the Superior Courts have the final word. Restriction in order to be reasonable should neither be arbitrary nor beyond what is required in the public interest. Reasonableness should be determined on the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time.
It is neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness. However, factors such as the nature of the right infringed, duration and extent of the restriction, the causes and circumstances prompting the restriction, and the manner as well as the purpose for which the restrictions are imposed are to be considered. The extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition. It needs to be kept in mind that 'reasonable' implies intelligent care and deliberation, that is, the choice of reason dictates. For any action to be qualified as reasonable, it must also be just, right and fair, and should neither be arbitrary nor fanciful or oppressive.
Defamation is an injury to a man's reputation. The freedom of speech or expression does not authorize one person to lower another in the esteem of his peers or to expose him to hatred, ridicule or contempt. The wrong of defamation, which includes both libel and slander, protects reputation while the defences to that wrong, viz., truth and privilege, protect the freedom of speech. No one has a right to injure reputation of others with mala fide intention.
In order to determine whether the words are defamatory they should be given their natural, normal, ordinary, plain, usual, fair and obvious meaning and be construed in the sense understood by an ordinary and reasonable person, i.e. someone who is not naturally inclined to attribute the best or worst meaning to them.
It is in public interest to allow debate on the policies and acts of politicians but the person making the allegations must have a positive belief that they are true. [p. 803] S
Indifference to the truth of what the publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more.
Critics are instruments of reforms but not those actuated by malice but those who are inspired by public weal. Bona fide criticism of any system or institution, including judiciary, is aimed at inducing the administration of the system or institution to look inward and improve its public image. Healthy and constructive criticism are tools to augment its forensic tools for improving its functions. Constructive public criticism even if it slightly oversteps its limits thus has fruitful play in preserving democratic health of public institutions.
Defence of qualified privilege should be extended to mass media with respect to publication of information, opinion and arguments concerning Government and political matters that affect the public---
Following is a non-exhaustive list of the criteria against which the defence of qualified privilege should be adjudged:
(a) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
(b) The nature of the information, and the extent to which the subject-matter is a matter of public concern.
(c) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
(d) The steps taken to verify the information
(e) The status of the information. The allegation may have already been the subject of an investigation which commands respect.
(f) The urgency of the matter. News is often a perishable commodity
(g) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
(h) Whether the article contained the gist of the plaintiff's side of the story.
(i) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
(j) The circumstances of the publication, including the timing.
Constitution of Pakistan---
----Art. 14---Inviolability of dignity of man---Right to reputation explained.
Concept of human dignity envisages that human beings possess a special value that is intrinsic to their humanity owing to which they are worthy of respect whatever may be their race, colour, creed gender or personal qualities or abilities. The right to reputation, the right to possession of a good name, is acknowledged as an inherent personal right of every person and considered as an integral part of his dignity.
Right to the enjoyment of a private reputation, un-assailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution, equally with the right to the enjoyment of life, liberty and property.
Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.
Dignity of man is a cherished value under Constitution of Pakistan and Article 14 thereof not only declares it as such but also enjoins that it is inviolable. It includes the right to reputation.
Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction---Vires of statute, challenge to---Principles to be applied by court while examining the statute stated.
a) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two;
b) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity;
c) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;
d) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question;
e) The Court will not decide a larger constitutional question than is necessary for the determination of the case;
f) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution;
g) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;
h) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution;
i) Mala fides will not be attributed to the legislature.
Words and phrases---
-"Derogation"---Meaning.
An occasion when a rule or law is allowed to be ignored.
----Phrase "and not in derogation of"---Meaning---"And not in derogation of" means the same thing as "in addition to".
Interpretation of statutes---
----Words "by" and "under"---Scope---When a statute provides something in its main text, it can be said to be something prescribed "by" the law---However, if secondary legislation envisaged by the parent law prescribes something (e.g. through statutory rules) it is "under" the parent enactment---Use of the word "under" in a parent law clearly suggests that the legislature left it open for something to be provided either through an amendment in the main statute or the rules framed thereunder.
Criminal Procedure Code (V of 1898)---
----S. 154---Information in cognizable cases---Scope---Registration of FIR is not a condition precedent for commencement of investigation.
----Ss. 154, 156 & 157---Information in cognizable cases---Investigation into cognizable cases---Procedure where cognizable offence suspected---Scope---Receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation---Criminal prosecutions are undertaken as a result of information received and recorded but there is no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged---Section 157, Cr.P.C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under S. 156 has been committed shall proceed to investigate the facts and circumstances, supports this view---In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons---Object is to obtain early information of the alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished.
----Ss. 155 & 190---Information in cognizable cases---Cognizance of offences by the Magistrate---Scope---Police officers are not competent to investigate an offence which is non-cognizable and require permission from a competent Magistrate before the commencement of investigation---However, if through bona fide error or misconception of facts and law a police officer has undertaken investigation of a crime in which he is not authorized to arrest an accused without a warrant from a Magistrate and a case is taken to a Court competent to try it in terms of S. 190(1)(a) & (b), Cr.P.C., cognizance taken may not be altogether bad in law and vitiated unless the trial has caused serious prejudice to the accused resulting in miscarriage of justice---No blanket exits for the acts committed dishonestly or malafidely by police officers who inherently are otherwise not empowered to submit reports for trial in non-cognizable offences and courts should not normally encourage the acts of police agencies without proper scrutiny---If a court otherwise competent in appropriate case has taken cognizance of an offence and proceeded with the trial of the accused, the same may not be vitiated in the absence of any miscarriage of justice or grave prejudice to the accused---Indeed, on the one hand police officers are duty bound to ensure the rule of law whereas on the other hand courts can exercise jurisdiction only subject to law and the assumption of jurisdiction which otherwise is barred can hardly be justified on the plea of bona fide cognizance of a case or lack of prejudice to the accused.
----Civil and criminal litigation proceeding simultaneously---Scope---Object of civil proceedings is to enforce civil rights of the people while the purpose of criminal proceedings is to punish the offender for committing an offence.
Civil and criminal litigation proceeding simultaneously---Scope---High Court has jurisdiction under Art. 199 of the Constitution and S. 561-A, Cr.P.C. to stay criminal proceedings to meet the ends of justice where civil litigation is pending.
----Civil and criminal litigation proceeding simultaneously---Scope---No universal principle exists to the effect that whenever the subject-matter of a civil suit and a criminal case is the same or similar the proceedings before the criminal court must necessarily be stayed.
----Civil and criminal litigation proceeding simultaneously---Scope---Decision to stay criminal proceedings is purely a matter of discretion---However, the guiding principle is whether the accused is likely to be prejudiced if the proceedings continued---If his criminal liability is dependent on the result of civil litigation or is so intimately connected with it that there is a danger of grave injustice if there is a conflict of decisions, criminal proceedings must be held in abeyance.
----Ipse dixit of police--- Scope--- Opinion of the police is not binding on the court and it has to decide the case on the basis of evidence produced before it, evidence that is admissible and reliable.
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