2020 PLP 618 (CLC)

IJAZ ANWAR, J.

This appeal under section 15 of the Defamation Ordinance, 2002 is directed against the judgment and decree dated 11.03.2010 passed by Additional District Judge-IV, Abbottabad in Suit No.4/1 of 2007, whereby, the suit filed by the respondent against the appellants under Defamation Ordinance, 2002 for recovery of Rs.2,000,000/- as damages on account of defamation, mental torture etc. was partially decreed and the appellants were directed to jointly pay damages to the tune of Rs.1,000,000/- to the respondent.

2. Brief and essential facts leading to the filing of present appeal are that the respondent instituted Suit No.4/1 of 2007 against Zafar Hijazi, Chief Editor, Chaudhary Shahid, Resident Editor, Sultan Dogar, Survey Reporter, Daily Mohasib, Abbottabad, Ahmad Nawaz Khan, Chief Editor and City Reporter, Daily 'Chaita', Abbottabad, appellants for recovery of Rs.2,000,000/- on account of damages for defamation of the respondent. It is averred in the plaint that the respondent was highly educated personality belonging to a respectable family of the province; he was enjoying a remarkable academic as well as service record locally and internationally, lastly posted as Principal, Government College of Management Sciences, Abbottabad. The appellants, who are concerned with their respective Daily News Papers being published from Abbottabad in the capacity Chief Editors, Resident Editor and Reports, have published a fake, false and baseless news against the respondent in their Editions dated 29.03.2007 and 09.04.2007, respectively, thereby maligned dignity, honour and reputation in his family, friends and general public of the locality. The respondent also served notices upon the appellants through registered AD, as required under the law, but to no avail. Hence, the respondent filed suit for recovery of damages and compensation amounting to Rs.2,000,000/- against the appellants.

3. Initially, the suit of the respondent was ex parte decreed against the appellants, the decree was subsequently set aside by the learned trial Court while accepting applications of the appellants. The suit was then contested by the appellants by filing their separate written statements. The learned trial Court out of the divergent pleadings of the parties, framed the following issues on 22-01.2010: ISSUES

1. Whether plaintiff belongs to highly educated and renowned family of NWFP and enjoys good reputation, having served at different prestigious posts? OPP

2. Whether defendants in order to blackmail, pressurize and grab money with malafide had published scandalous news against plaintiff? OPP

3. Whether news items (in dispute) were published in good faith and amount to fair comment? OPD.

4. Whether suit is false and vexatious, if so defendants are entitled to special costs? OPD.

5. Relief.

4. Respondent/plaintiff produced his evidence in support of his claim, while the appellant choose not to produce their evidence. The learned trial Court, after hearing the parties, partially decreed suit of the respondent vide judgment and decree dated 11.03.2010 to the extent of recovery of Rs.1,000,000/-. Hence, the present appeal.

5. Learned counsel for appellants argued that appellants Nos.1 and 2 were wrongly arrayed as defendants; learned counsel further argued that there was no malice on the part of the appellants in publishing the item rather it was a fair comments published in public interest; learned counsel argued that under Article 19 of the Constitution of 1973, appellants have the necessary privilege to publish any such information; lastly he argued that the general damages granted to the respondent was excessive and there was no proof of actual damages caused to the respondent. He placed reliance on PLD 2005 Karachi 399, PLD 1996 Lahore 410, PLD 2002 Supreme Court 514 and 2013 MLD 1449.

6. Learned counsel for the respondent has brought on record relevant evidence regarding his status in the society, besides argued that bald allegations were leveled in the newspaper which can under no circumstances be termed as fair comments in public interest; he further argued that since the appellants were the originators of the news, as such, there was no question of fair comment in the public interest. He placed reliance on PLD 2010 Lahore 413.

7. Arguments of the learned counsel for the parties heard and record perused.

8. In order to fully grasp the matter, it would be appropriate that the alleged libelous material published in both the news paper i.e. Daily Mohasib, Abbottabad on 29-7-2007, 4-4-2007 and Daily 'Chaita' Abbottabad on 9-4-2007 be reproduced below. The impugned news items prompted the respondent to first serve the appellants with legal notices as required under section 8 of Defamation Ordinance, 2002 and when no positive response was received, a suit for damages on account of defamation was filed, wherein, he claimed damages to the tune of Rs.2,000,000/-.

9. Section 3 of the Defamation Ordinance, 2002 explains defamation and its types. Being relevant in the present controversy, it is reproduced:- "

3. Defamation. - (1) Any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which injures the reputation of a person, tends to lower him in the estimation contempt or hatred shall be actionable as defamation. (2) Defamation is of two forms, namely: - (i) Slander; and (ii) Libel (3) Any false oral statement or representation that amounts to defamation shall be actionable as slander. (4) Any false written, documentary or visual statement or representation made either by ordinary form or expression or by electronic or other modern means or devices that amounts to defamation shall be actionable as libel." Similarly, section 4 of the Defamation Ordinance, 2002 defines Defamation Actionable and being also relevant is reproduced:- "

4. Defamation actionable:-The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed." Section 5 of the Defamation Ordinance, 2002, provides all possible defences that can be raised in response to the allegations or suit filed for damages. Since the appellants take cover under section 5, as such, it is also reproduced for reference:- "

5. Defences:-In defamation proceedings a person has a defence if he shows that - (a) He was not the author, editor, publisher or printer of the statement complained of; (b) The matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith; (c) It is based on truth and was made for public good; (d) Assent was given for the publication by the plaintiff; (e) Offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff. (f) An offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff; (g) The matter complained of was privileged communication such as between lawyer and client or between having fiduciary relations; (h) The matter is covered by absolute or qualified privilege. " In a suit for defamation, the defamatory words published in the newspaper are presumed under the law to be false and only burden on the plaintiff is to prove that the defamatory words have been published by the defendants and then it is for the defendants to prove that the words so published are true.

10. In order to explain the standing and reputation of the respondent, he produced PW-1 Syed Javed Hussain, who narrated the facts about his reputation and the effect on him of the libelous material published; PW-3 Muhammad Nazir is an Associate Professor, who also narrated the facts about good character of the respondent and denied the allegations published in the newspaper; PW-4 is Junior Clerk of Government College of Management Sciences, who also gave details about the facts and denied the allegations so leveled against the respondent. The respondent himself appeared as his own witness. He narrated the facts about his education, his family background, denied the allegations published in the newspapers and about the libelous material which has damaged his reputation. Since during the course of plaintiff/ respondent's evidence PW-5 and PW-6, (who were representatives of the appellants), were also examined, as such, the appellants did not opt to produce their own evidence and placed reliance on the evidence so recorded. I have also examined the cross-examination of the respondent/plaintiff's witnesses, however, neither any repentance is shown on the defamatory news item published by the appellants or offered to tender apology nor they able to prove the charges leveled in the news item to be true through any cogent evidence except by giving negative suggestions. Similar is the case when representatives of the appellants were produced as PW-4 and PW-5.

11. Article 19 of the Constitution of Islamic Republic of Pakistan, 1973 ensures the fundamental right of a newspaper pertaining to freedom of speech and expression and freedom of press. However, the wording of Article 19 does not give unbridled licence to the press to publish any material which may harm reputation of a person, freedom of press is subject to such restrictions as could be legitimately imposed under the law. Article 19 is reproduced as under:- "Freedom of speech, etc.

19. 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." In addition to Article 19 of the Constitution of 1973, the provisions of the Defamation Ordinance, 2002 also structured the publications to be made by the press, besides there is also Code of Ethics of the Council of Pakistan Newspaper Editors laying out for press to avoid biased reporting or publication on unverified material and avoid the expression of comments and conjectures as established fact.

12. Apart from the restrictions imposed by law on the publication of such defamatory material, we being Muslims are under legal obligations to adhere to the Commands of Allah Almighty and 'Sunnah' of our Holy Prophet Hazrat Muhammad (Peace be upon Him). For the purpose of reference, importance on the society, the religion of Islam is lying down principles to avoid backbiting and slander. Such slander has deadly impact on our society which shall not go unpunished in this world under the established laws of the land and also hereafter (on the day of Judgment). I have compiled some of the relevant 'Aayats' and 'Hadith' on the subject, which are reproduced as below: "Allah states in the Quran (what means): "O you who have believed! Avoid much [negative] assumption. Indeed, some assumption is sin. And do not spy or backbite each other. Would one of you like to eat the flesh of his brother when dead? You would detest it. And fear Allah; indeed, Allah is Accepting of repentance and Merciful." [Quran 49:12] The Quran Says (what means): "When you received it with your tongues and said with your mouths that of which you had no knowledge and thought it was insignificant while it was, in the sight of Allah, tremendous." [Quran 24:15] Allah Says (what means): "And why, when you heard it, did you not say: 'It is not for us to speak of this. Exalted are You, [O Allah]; this is a great slander?'" [Quran 24:16] Hudhayfah reported: The Prophet, peace and blessings be upon him, said, "The slanderer will not enter Paradise." Source: Sahih al-Bukhari 5709, Sahih Muslim 105 Asma' bint Yazid reported: The Messenger of Allah, peace and blessings be upon him, said, "Whoever defends the flesh of his brother from backbiting, it will be a duty upon Allah to free him from the Hellfire." Source: Musnad Ahmad 26950 Abu Darda reported: The Prophet, peace and blessings be upon him, said, "Whoever defends the reputation of his brother, Allah will defend his face from the Hellfire on the Day of Resurrection." Source: Sunan al-Tirmidhī 1931 Grade: Sahih (authentic) according to Al-Albani Abdullah ibn Amr reported: They mentioned a man in front of the Messenger of Allah, peace and blessings be upon him, and they said, "He only eats if he is fed! He only moves if he is made to move!" The Prophet said, "You have backbitten him." They said, "We only said what is true about him." The Prophet said, "It is enough sin to mention bad things about your brother." In another narration, the Prophet said, "If what you said about him were not true, you would have slandered him." Source: Musnad 'Abd Allāh ibn al-Mubārak Grade: Hasan (fair) according to Al-Mundhiri Prophet Muhammad (may Allah exalt his mention) once asked: "Do you know what backbiting is?" His companions, may Allah be pleased with them, replied: "Allah and His Messenger know best." He then said: "It is to say something about your brother that he would dislike." Someone asked: "But what if what is said is true?" The Messenger of Allah replied: "If what you say about him is true, then you have backbitten him, but if it is not true then you have slandered him." [Muslim] Sa'id ibn Zayd reported: The Prophet, peace and blessings be upon him, said, "Verily, the worst act of usury is to attack the reputation of a Muslim without a just cause." Source: Sunan Abī Dāwūd 4876 Grade: Sahih (authentic) according to Al-Albani l-Bara' ibn 'Azib reported: The Messenger of Allah, peace and blessings be upon him, said, "Usury has seventy-two doors, the least of which is like a man who goes into his mother. The worst act of usury is for a man to attack the reputation of his brother." Source: al-Mu'jam al-Awsa 7151 Grade: Sahih li ghayrihi (authentic due to external evidence) according to Al-Albani Sa'id ibn Zayd reported: The Prophet, peace and blessings be upon him, said, "Among the worst kinds of usury is to disparage the honor of a Muslim without right. Verily, this womb is derived from the Most Merciful. Whoever severs its family ties, Allah will forbid him from entering Paradise." Source: Musnad Ahmad 1586 Grade: Sahih (authentic) according to Al-Albani Abu Huraira reported: The Messenger of Allah, peace and blessings be upon him, said, "Five sins cannot be expiated: idolatry with Allah, killing a soul without a just case, slandering a believer, fleeing the battlefield, and bearing false witness to consume the wealth of another without right." Source: Musnadal-Shamiyyin 1161 Grade: Hasan li ghayrihi (fair due to external evidence) according to Al-Albani Abdullah reported that the Prophet, may Allah bless him and grant him peace, said, "A believer is not a defamer nor a curser nor coarse nor obscene." Grade: Sahih (Al-Albani) Abu Qilabah reported: The Messenger of Allah, peace and blessings be upon him, said, "It is an evil mount for a man to rely upon what others merely assert." Source: Sunan Abī Dāwūd 4972 Grade: Sahih (authentic) according to Al-Albani Al-Sakhawi said, "Indeed, it is said 'they imagine' in their speech, without attribution or verification, something they only said as an assertion. The Prophet disapproved of this way of speaking, and he commanded honesty and verification in what one relates." Source: al-Maqasidal-Hasanah 1/244 Al-Rabia' reported: Ibn Sirin, may Allah have mercy on him, said, "It is an act of wrong against your brother that you mention what you know is evil about him, while you are silent upon his good." Source: Sifatal-Safwah 2/145 Abu Sa'id al-Khadimi reported: A man said to Hasan al-Basri, may Allah have mercy on him, "Indeed, someone has backbitten you!" Hasan sent a dish of sweet dates to the backbiter and he said, "I heard that you have given me your good deeds as a gift, so I want to repay you for it, but please excuse me for I am unable to completely repay you." Source: Tanbīhal-Ghāfilīn 1/164 Hudhayfah reported: The Prophet, peace and blessings be upon him, said, "The slanderer will not enter Paradise." Source: Sahih Al-Bukhari 5709, Sahih Muslim 105 Grade: Muttafaqun Alayhi (authenticity agreed upon) according to Al-Bukhari and Muslim Ibn Umar reported: The Prophet, peace and blessings be upon him, said, "Whoever argues in favor of falsehood and he knows it, Allah will continue to be displeased with him until he stops. Whoever says something about a believer that is not true, Allah will lodge him in a sinkhole until he recants what he has said." Source: Sunan Abī Dāwūd 3597 Grade: Sahih (authentic) according to Al-Albani Anas ibn Malik reported: The Prophet, peace and blessings be upon him, said, "Do you know what calumny is?" They said, "Allah and his messenger know best." The Prophet said, "It is spreading news between people to ruin their relationships." Source: al-Adab al-Mufrad 425 Grade: Sahih (authentic) according to Al-Albani Anas ibn Malik reported: The Messenger of Allah, peace and blessings be upon him, said, "When I was taken on my night journey, I passed by people who had metal hooks in their hands and they were clawing at their faces and necks. I said: Who are these, O Gabriel? Gabriel said: These are the ones who 'eat the flesh of people' (49:12) and attack their honor." Source: Sunan Abī Dāwūd 4878 Grade: Sahih (authentic) according to Al-Albani Prophet Muhammad said: "If a man's Muslim brother is slandered in his presence, and he is capable of defending him and does so, Allah will defend him in this world and in the next. But if he fails to defend him, Allah will destroy him in this world and the next." [Al-Baghawi]"

13. After going through the 'Quranic' versions and 'Hadith' of Holy Prophet (Peace Be Upon Him), this Court finds that Islam strictly prohibit reporting of libelous materials even it prohibit reporting bad deeds of a person considering it a back biting what to say about slander. However, since in our country we are following English Common Law regarding the freedom of expression/freedom of press and such freedom is also secured under Article 19 of the Constitution of Islamic Republic of Pakistan, at the same time our Constitution gives protection to the dignity and reputation of a person under Article 4 read with Article 14 of the Constitution of 1973 and ensures respect and inviolability of dignity of every person and citizen of Pakistan. As referred above, on the one hand, when the Constitution ensures freedom of press simultaneously it put reasonable restrictions on the freedom of press. The bald allegations leveled by the appellants' newspapers about a Head of an Educational Institution is a height of irresponsibility particularly when not a single allegation became true in the evidence nor any supportive evidence to this effect is produced.

14. In the instant case, counsel for the appellants argued with vehemence regarding defences taken claiming the report to be a fair comments, however, as stated above, in an action for defamation actionable per se damage to the plaintiff's reputation is presumed rather than proved and the burden shifted to the defendant to prove that reporting/comments so made are based on facts which are true or protected by privilege and that the comments were offered on matter of public interest and the word so published was not tend to lower the plaintiff in the estimation of right thinking members of society. When tested the case of appellants on the above parameters, this Court finds that the news item published cannot be considered as a fair comment about allegations reported rather the appellants newspapers are the originators of the news item and by bare reading the heading of the newspaper any right thinking person from the society will never subscribe to it. To this effect responsible officers of the College were produced as respondent's witnesses, who while completely denying the allegations also stated that the respondent is defamed.

15. It is by now well settled that on the pretext of freedom of expression the newspapers cannot be allowed to play havoc with the character and dignity of a respectable citizens. The Honourable Supreme Court of Pakistan in the case of 'Liberty Papers Ltd. v. Human Rights Commission of Pakistan' (PLD 2015 SC 42) held as under:- "

10. Under the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, reputation of a person 'has received the highest protection in Article 4(2)(a). Further under Article 14 the dignity of man and, subject to law, the privacy of home, shall be inviolable right of each and every citizen. The defamation of any person or citizen through spoken or written words or any other means of communication lowers the dignity of a man fully guaranteed by the Constitution, thus, not only is it the constitutional obligation of the State but all the citizens and persons living within the State of Pakistan to respect and show regard to dignity of every person and citizen of Pakistan otherwise if anyone commits an act of malice by defaming any person, would be guilty under the Constitution and would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same has to be dealt with under the law.

11. No lenient treatment shall be shown to anyone in this regard nor anyone can plead the unbridled right of expression and right to have access to the information when the subject matter is disgraced, his/her dignity brought to almost naught because the rights with regard to expression and access to information are regulated by law, rules and regulations under which the license is granted under the Press and Publication laws." The argument that since the respondent/plaintiff has failed to prove pecuniary loss or loss of health is not entitled to special damages and that the award of general damages by the learned trial Court is too excessive. This Court finds that damages of Rs.1,000,000/- are granted to the respondent against two newspapers with specific direction that the appellants are jointly to pay the damages, thus, it comes to Rs.500,000/- each. In the case of 'Muhammad Sharif v. Nawab Din and another' (PLD 1957 Lahore 283), it was held that:- "Some damage must necessarily have been caused. If we are to assess damages only if the exact amount is proved, no damages can ever be decreed. Damages have so many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of a suit." Similarly, in the case of 'Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary M/o Finance and others' (2013 SCMR 507), the Apex Court held that:- "General damages claimed for mental torture, agony, defamation and financial loss were to be assessed following the "Rule of Thumb" and said exercise fell in the discretionary jurisdiction of the court, which had to decide it in the facts and circumstances of each case." The trial Court thus even in the absence of any method to determine a fair assessment of damages is still under obligation to decide any money as compensation keeping in view the facts and circumstances placed on record by the respondent.

16. The defences / privileges taken have not been proved on the record and therefore rightly discarded by the learned trial Court. In view of the above, there is neither any misreading or non-reading of evidence or any misapplication of law. The learned trial Court has given sound reasons and justification for awarding the general damages. This appeal being bereft of any merit is dismissed accordingly. MH/1/P Appeal dismissed.