P L D 2002 Supreme Court 514 (PLP)

MIAN MUHAMMAD AJMAL, J.‑‑‑By this common judgment, we propose to dispose of Civil Appeals Nos. 1427 and 1952 of 1996 as they have arisen out of common judgment and involve identical questions of law and facts.

2. Resume of the case is that the appellant instituted a suit for recovery of Rs.3,00,00,000 as damages against the respondents for publishing defamatory statements of one Mr. Naveed Malik in their dailies "The Nation" and "Nawa‑e‑Waqt" on 22nd, 23rd, 25th, 30th July and 2nd of August. 1987. The suit was contested by the respondents on both legal and factual premises. The suit was transferred by the Lahore High Court from the Court of Senior Civil Judge, Lahore to the Court of District Judge, Lahore, who recorded evidence of the parties and after hearing the learned counsel for the parties, partly decreed the suit vide his judgment dated 9‑6‑1991 directing the respondents to pay a sum of Rs.30,00,000 as damages to the appellant. Feeling aggrieved both the parties filed appeals before the Lahore High Court. The appellant's appeal was for enhancement of the quantum of damages while that of the respondents was for setting aside the judgment of the trial Judge and for dismissal of the suit. A Division Bench of the Lahore High Court comprising Mr. Justice Munir A. Sheikh, J. and Mr. Justice Khalid Paul Khawaja, J heard both the appeals and recorded dissenting judgments dated 10‑11‑1994. Mr. Justice Munir A. Sheikh. J. partly accepted the appeal of the appellant and modified the decree passed by the trial Court. A decree for Rs.30,00,000 was passed defendant No.1 and a decree for Rs.20.00,000 was passed against defendant No.2 As such decretal amount was enhanced from Rs.30,00,000 to Rs.50,00,000 while Mr. Justice Khalid Paul Khawaja, J. dismissed the suit of the. Appellant alongwith his R. F. A. No. 164 of 1991 and accepted R. F. A. No. 106 of 1991 tiled by the respondents. Due to difference of opinion between the learned Judges, of the Division Bench, the matter was referred to the Chief Justice in terms of section 98 of the Code of Civil Procedure for nomination of a third Judge to express his opinion on the following points of law:‑ (a) Whether fundamental right of freedom of press granted by Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 provides protection to appellants in relation to publication of news items in question against any claim for damages; (b) if answer to the above point is in the negative whether in the facts and circumstances of the case the plaintiff even otherwise is not entitled to claim damages for publication of the news items by the appellants." The reference was sent to Mr. Justice Ijaz Nisar, J. who vide his judgment dated 27‑3‑1996 concurred with the findings arrived at by Mr. Justice Khalid Paul Khawaja, J. and held that the suit tiled by the appellant merit dismissal and also his appeal for enhancement of damages and dismissed the same whereas the appeal filed by the respondents was accepted and the judgment and decree passed by the trial Judge in favour of the appellant, was set aside. The learned Referee Judge in the impugned judgment observed as under:‑‑ "

38. A perusal of the record also shows that the initial statement of Naveed Malik was not carried by the newspapers run by the defendants. It is clear from the above that defendants did not entertain any malice against the plaintiff, for, they did not publish the initial disparaging statement of Naveed Malik and rather gave prommence to the statement of the plaintiff in which Naveed Malik had been ruthlessly slated by the plaintiff. After retaliation of Naveed Malik, the newspaper again contacted the plaintiff for his comments to explain his position which the later refused to offer dismissing Naveed Malik as Tom, Dick and Harry. The effect of the defendants to give reasonable opportunity to the plaintiff to express his views on the subject or to contradict the allegations of Naveed Malik is a sufficient proof of their impartiality and good faith.

39. Thus, by no stretch of imagination from their conduct it could be gathered that the defendants entertained any malice against the plaintiff. Mr. Majeed Nizami defendant No.1 was, therefore, duly fortified by the facts and circumstances of the case when as D.W.8 he stated before the trial Court that he had no malice or personal vendetta against the plaintiff. It is pertinent to note that this statement, rather this aspect of the case, has not been questioned anywhere in the pleadings or the evidence of the plaintiff.

40. When a plea, especially of malice and motive has not been raised in the pleadings and is not actually or seemingly incorporated in the evidence and is not deducible even circumstantially, it will be going too far to presume its existence notionally. A publication cannot be deemed to be malicious merely because it is found to be incorrect unless the relevant circumstances indicate the absence of bona fide. As already stated the defendants not only published the statements of both the parties and were all the way willing to publish further statements and contradiction to be supplied by the plaintiff, but it was the plaintiff who first dismissed Naveed Malik as Tom, Dick and Harry and then declined the offer extended by the defendant No. 1 personally as well as through Muhammad Shafi (Meem‑Sheen, an old political worker and a legend in the field of journalism) and Mr. Justice (Rtd.) Zaki‑ud‑Din Paul.

41. In my view due care was exercised by the defendants in publishing the matter inasmuch as that they had reproduced the allegations and counter‑allegations of the parties in the same manner as had been levelled by them against each other. The allegations from both sides were published as mere allegations and no impression of their truth or falsehood was ever given by the newspapers nor they ever added any views of their own on the respective contentions of the two political rivals. The plaintiff and Naveed Malik both were political leaders belonging to the same political patty and the newspapers plainly reproduced the versions of both the gentlemen to the extent possible. The evidence shows that the defendants made an effort to verify from Mr. Naveed Malik, if the allegations against the plaintiff had any substance to which he replied in the affirmative. He reiterated the same allegations before the trial Court in his statement as D.W.6. In these circumstances the publications in question cannot be deemed to have been done with malice or due to extraneous considerations merely because it was not proved to be correct.

42. In this view of the matter the defendants are not liable for the libel complained against them and their publications are protected under the law and the Constitution. It is the professional and social obligation of the newspapers to honestly reproduce information to the public, to educate the people and inculcate in them an awareness on all subjects of national interest. They also play an important role in bringing awareness in the public about their leaders and in building the public opinion with the object of betterment of the society. For this reasons the law recognizes the importance of expression of views or making statements as social or moral duty and grants a privilege from action for libel and defamation if made honestly, justly and fairly. The Sullivan case referred to above and the case of Curtis Publishing Company v. Wallace Butts, 338 US 130, 18 Led 2d 1094, lend full support to this view.

43. I am, therefore, of the view that an honest and fair reporting of a public statement or bona fide expression of opinion on a matter of public interest is not actionable even if it does not come to be true. Accordingly, the defendants are entitled to the protection of qualified privilege which the newspapers enjoy tinder Article 19 of the Constitution and they cannot be held liable for libel in this case.

44. No doubt the fourth pillar of the State has carved out its place in the society by exposing fearlessly the evils which afflict it, and, one of them is the good use or the bad use to which people put the powers placed at their disposal as trust. In doing so what, however, is sometimes nor kept in view by the reporters is to be absolutely sure of the facts and how to ascertain or check before publishing them, lest they should cause irreparable loss to the person concerned.

45. Exposure of the hidden traits of character of people, especially political leaders with reference to the level of credibility they enjoy amongst their fellow beings is a public ‑service which the press performs to inform them of the other side of the story. No one can and should be afraid of the free press for doing this service provided, of course, it is done responsibly and not for maligning anybody out of malice or personal dislike.

46. In the present case the alleged insinuations and defamatory statements were made. by Mr. Naveed Malik a prominent P.P.P. Leader holding an important official position even now against Sh. Muhammad Rashid another veteran P.P.P. Leader who categorically owned them while appearing in the witness‑box before the Court and offered to prove their veracity, if given a chance. But it is not understandable why in these circumstances he was not arrayed as defendant by Sh. Muhammad Rashid alongwith the Editors of the newspapers who had published his statements.

47. The fourth pillar of State i.e. press has of necessity to ensure stability of the structure. Weakness of one or the other exposed for corrective measures will not 'harm but add to the strength of the State structure but deliberate weakening one to the, advantage of the other should not be allowed and tolerated at any level of those engaged in securing public good.

48. The above point namely point (a) of the reference having been answered in the affirmative, the plaintiff is not entitled to any claim of damages for publication of the news items by the defendants. I am, however, of the opinion that even if this point had been answered in the negative the plaintiff's claim for exemplary damages was not justified.

49. The superior Courts have consistently been of the view that in such suits the costs or damages are not to be awarded by way of penalty or punishment nor are they to be made a source of profit for the successful party.

50. The plaintiff claims to have suffered loss of reputation on on account of publication of defamatory material but has not stated as to what colossal loss had been caused to him in material terms. In the case of Harold ,Robert Henry Lind v. British Insulated Callender's Construction Co. Ltd.

51. Exemplary and huge punitive damages were not granted despite the fact that the plaintiff who was a consultant and depended solely for his livelihood on his reputation as such was found to have been defamed. Syed Sharif‑ud‑Din Piizada, learned counsel for the defendants, has also referred to a case titled Jehangir Pestonji Wadia v. Framji Rustomji Wadia (1928 The Bombay Law Report 962) wherein Quaid‑e‑Azam Muhammad Ali Jinnah had pleaded before the Court that it was never his client's intention to make money out of the litigation.

52. It can thus, be safely concluded that damages for defamation are purely compensatory and there is no room for importing the concept of exemplary and punitive damages nor the plaintiff has to make profit for himself on account of reputation. In any case the quantum of damages should be determined in proportion to the damages actually suffered by the plaintiff, which in the present case have not been established by him. If the plaintiff in a suit for damages for defamation or libel does not allege or calculate actual loss or damage suffered by him, he shall be deemed to have a claim for general and compensatory damages only. Thus, in the present case the damages, if any, could not be exemplary or punitive. Point (b) of the reference is answered accordingly.

53. For the reasons stated above, I concur with the findings arrived at by my learned brother Khalid Paul Khawaja, J. and hold that the suit filed by Sh. Muhammad Rashid merits dismissal as also his appeal for the enhancement of damages. I order accordingly. In consequence, the defendant's appeal succeeds and the judgment and decree passed in favour of Sh. Muhammad Rashid is hereby set aside. " Feeling aggrieved, the appellant has filed the instant appeals under Article 185(2) of the Constitution of Islamic Republic of Pakistan, .1973.

3. Learned counsel for the respondents raised preliminary objection with regard to Civil Appeal No. 1952 of 1996 that the same was time‑barred by 196 days, hence, the said appeal was liable to be dismissed on this score alone. Since Civil Appeals Nos. 1427 and 1952 of 1996 have arisen out of the same judgment and we propose to dispose of both the appeals through this common judgment, therefore, we condone the delay in filing Civil Appeal 'No. 1952 of 1996.

4. Learned counsel for the appellant submitted that the Referee Judge could not pronounce the judgment, he should have referred the matter back to the Division Bench after recording his opinion on the points referred to him and he could not go beyond the reference. He relied upon Muhammad Sayyar v. Vice‑Chancellor, University of Peshawar and others (PLD 1974 SC 257). He ,referred to the statements published in the newspapers to contend that tht prestige and reputation of the appellant was badly damaged by the respondents by publishing libellous and defamatory material, therefore, his suit was liable to be decreed. Learned counsel urged that Article 19 of the Constitution of Islamic Republic of Pakistan, as amended does not confer unbridled powers on the press to publish any false or defamatory material in the newspaper to damage the reputation of any citizen of the country. The freedom and liberty of the press is neither absolute nor unlimited but is subject to reasonable restrictions imposed by law in the interest of Islam, integrity, security or defence of Pakistan, and it cannot publish libellous and defamatory material. It was argued that such material was maliciously published in order to malign and humiliate the appellant in the eyes of public‑at‑large.

3. On the other handy learned counsel for the respondents contended that the statements issued by Mr. Naveed Malik were published in the newspaper in good faith in public interest and there was no malice in such publication. He submitted that neither malice was alleged In the suit nor any evidence was produced to that effect. He submitted that appellant's rebuttal/rejoinder to the first statement of Mr. Naveed Malik, which seems to have been published in some newspaper other than that of the respondents and has not been brought on record was duly published in daily "The Nation" and thereafter the appellant did not issue any contradiction for its publication in dailies 'The Nation' and ' Nawa‑e‑Waqt' despite offers made for the same. It was urged that the allegations against the appellant were made by Mr. Naveed Malik and not by the respondents but strangely enough he was exonerated and the respondents were sued for damages for publishing Mr. Naveed Malik's statements. Learned counsel submitted that statements of Mr. Naveed Malik were published in good fait.', without any malice and full opportunity was given to the appellant to rebut the allegations but he refused to issue any further contradiction as according to him it was below his dignity to join issue with Mr. Naveed Malik. It was submitted that by such publication no damage was caused to the appellant's reputation, as, such statements are usually made by public leaders against each other which are published in newspapers in good faith for public interest. He submitted that Mr. Naveed Malik who issued the statements against the appellant was neither impleaded in the suit nor was sued for damages, hence, his exoneration also absolves the respondents for any damages. He argued that Press has been provided. protection under Article 19 of the Constitution as the word 'defamation' in the Article was substituted by the words commission of through section 4 of the Constitution (Fourth Amendment) Act (LXXI of 1975). This amendment is not without any significance as after substitution of the word defamation' by words 'commission of', the .scope of freedom of press has been enlarged.

6. The dispute between the parties arose from a news item which has, not been brought on record and it is not clear whether the said news item was published in the dailies of the respondents or not. However, a rejoinder issued by the appellant was published in the dailies of the respondents wherein the appellant refuted the allegations of Mr. Naveed Malik and made counter‑allegations against him. The rejoinder of the appellant prompted Mr. Naveed Malik to react and in this context he issued counter‑statements which were published. in the dailies of the respondents. The appellant was approached by the respondents directly and indirectly for his comments/contradiction but he refused to comment saying that he considers it below his dignity to reply to every Tom Dick or Harry trying to attack his person in order to gain cheap popularity. In order to determine the dispute between the parties it was necessary for the plaintiff/appellant to have placed on record the first statement of Mr. Naveed Malik to which the appellant has issued rejoinder, which was published in the daily 'Nation'. Where statements and counter‑statements by political leaders are made, which are usually published in the newspapers in good faith, in such occasion presumption of malice is excluded and burden of proving the malice in fact, lies on the plaintiff. The allegations made by Mr. Naveed Malik were published in the newspapers which could only be controverted by the appellant as he alone was in the knowledge of the correctness or otherwise or the allegations made against him. Since, he refused to issue any contradiction, therefore, the same would be deemed to be correct and the respondents cannot be held responsible as they published the statements in good faith in public interest after verifying correctness of the same from the maker of the statements. The plaintiff was required to prove that the statements issued by Mr. Naveed Malik were not correct and that the same were maliciously published by the respondents in their dailies. He has neither proved the allegations to be false nor has averred malice in his plaint which is an essential ingredient in every action of libel nor it was proved by him through any evidence that the respondents had maliciously published the statements of Mr. Naveed Malik due to spite or ill‑will. It was the duty of the plaintiff to substantiate the element of malice by cogent evidence to prove that the defamatory material was published by the respondents maliciously.

7. In the wrong of defamation the law presumes malice in the sense of wrongful act done intentionally by publishing defamatory matter but there is a lawful excuse for the publication of such matters as in the ordinary case of privileged communication or of fair comments upon a matter of public interest, the onus is upon the plaintiff to establish the fact of malice in order to maintain the action. It means that malice must be proved as a fact irrespective of the mere inference arising from the libellous character of the publication. The state of mind of the publisher who publishes defamatory matter is, therefore, material, where occasion is privileged or a plea of fair comments on a matter of public interest is properly raised, in that case the plaintiff has to prove actual malice in ordinary meaning of the words, that is j to say, spite or ill‑will or any indirect or improper motive. When the plaintiff fails to prove malice by cogent evidence then he can be non‑suited' on this ground. The burden of proving express malice both by extrinsic and intrinsic evidence lies on the plaintiff to show that the publications were actuated by some indirect or improper motive. Salmon in his Law of Tort at page 428 says: "The existence of malice is a question of fact for the jury, but the burden of proof lies upon the plaintiff; and the Judge has to be satisfied that there is some reasonable evidence of malice to go to the jury. On a plea of privilege, it is not for the defendant to prove that he used his privilege honestly and for its proper purpose; it is for the plaintiff to prove that the privilege has been maliciously abused." Article 19 of the Constitution guarantees the freedom of Press. However, it does not even licence to the press to publish any material which may harm or cause damage to the reputation of a person and such freedom of press is subject to such restrictions as could be legitimately imposed under the law. Article 19, both in its original as well as amended form, is reproduced herein below:‑‑ "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 defamation or incitement to an offence. " Article 19 amended. "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 the original Article word 'defamation' was available which was substituted by the word 'commission of vide section 4 of the Constitution (Fourth Amendment) Act, 1975 (LXXI of 1975). Although the scope of freedom of press has been enlarged after the omission of the word 'defamation' from Article 19 yet it does not licentiate the press to publish such material which may harm or cause damage to the reputation, honour and prestige of a h person. The Article provides the freedom of press subject to any reasonable restrictions which may be imposed by law in the public interest and glory of Islam, therefore, the press is not free to publish anything they desired. The press is bound to take full care and caution before publishing any material in press and to keep themselves within the bounds and ambit of the provisions of the Article.

8. The suit was brought on the basis of the statemepts made by Mr. Naveed Malik which were published in the dailies of the respondents. Mr. Naveed Malik appeared as D.W.6 and he not only reiterated the allegations made in his statements but also owned the allegations made by him, which were published in the press. In such circumstances it was necessary that Mr. Naveed Malik should have been arrayed as a party as the cause of action J arose from the publication of his statements. The exoneration of Mr. Naveed Malik by the plaintiff suggests that he let free his political rival but targeted the respondents who published the statements in good faith and in public interest. The respondents had given ample opportunities to the plaintiff to rebut or contradict the allegations but that offer was not accepted by the plaintiff.

9. So far as the contention of the learned counsel that the learned Referee Judge could not pronounce the judgment and could not go beyond the points referred to him for his opinion is concerned, we do not find any substance in this contention as the perusal of the judgment of the Referee ,J Judge would show that the learned Judge confined his opinion to the points referred to him and he has not gone beyond the reference. The facts of Muh4rnmad Sayyar's case (supia) referred by the learned counsel, are distinguishable and are not applicable to the instant case.

10. In such peculiar circumstances, we are of the view that the plaintiff has failed to substantiate his claim by not proving the actual malice on the K part of the respondents. Accordingly, both the appeals fail and the suit of the appellant stands dismissed.' There shall be no order as to costs. Before parting with the judgment, we would like to observe again that the press is not free to publish anything which is prejudicial to the interest of any person or which may harm the reputation of anybody and it must take due care and caution before publishing any such matter in the press and it should verify the correctness of such matters from the concerned quarters. S.A.K./M‑340/S Order accordingly.