2004 PLP 344 (CLC)

(4) What should the decree be?

6. In support of their case plaintiffs examined Muhammad Hanif claiming to be partner of the plaintiffs, who produced photostat copy of registration certificate of the firm as Exh.P.2 photostat copy of the press cuttings Exhs.P.3 and P.4, Photostat copies of notice as Exh.P.5 and its reminder as Exh. P.6 and photostat copies of cutting of the clarification got published by the plaintiffs in different news papers as Exh.P.7 to P.23. One Abdul Hasnat, the City Editor of the defendants was tendered in evidence on behalf of the defendants.

7. I have heard learned counsel for the parties, perused the pleadings and the evidence produced on record. My findings on each issue are recorded hereunder.

8. Neither the factum of the publication of the news item is denied nor contents thereof are disputed. The onus is upon the plaintiffs to establish the fact of malice in order to maintain the action. Perusal of the contents of news item published in the issue of 16th August, 2000 would reveal that the 'Special Army Monitoring Tea issued notices to four Builders of Karachi, who owed Rs.978.152 million to the KDA on account of outer development charges. It is further mentioned in the story that Army Team ordered Memar, Housing Society, Qasimabad Housing Scheme, Chapal Builders, and Gulshan Rabia to deposit .the outstanding amount immediately, otherwise serious action would be taken against them. News item further states that the sources said that during scrutiny of record at the Civic, Centre, the KDA Office, the team found Rs.196.84 million outstanding against Memar Housing Society. Rs.461.2 million against Qasimabad Housing Scheme, Rs.310 million against Chapal Builder, and about Rs.10 million against Gulshan Rabia. The news item further says that the owners of Memar Housing Society. were a former Senator and now member of the KDA's Governing Board,, and owners of Qasimabad Housing Scheme were high officials of the Pakistan Railway's. Second story was published in the issue of 19th August, 2000. It says that at least 105 defaulters of KDA were issued notices by Army Monitoring Team with the instructions to clear their dues of Rs.1.75 billion immediately. The defaulters were directed to either deposit their dues or contact with recovery cell of the KDA immediately, otherwise serious measures would be taken against them. It was further revealed that Iqbal Memon, owner of two commercial buildings was defaulter of Rs.5.6 million under the head of outer development charges and was out of country for the past several years because of corruption charges against him. The family members of said Iqbal Memon were directed to pay such amount within three days otherwise their commercial buildings would be sealed. News item goes on to state further that the Army Team informed that two Directors of the World Motors deposited a pay order of Rs.5,00,000 with the KDA and would clear their dues in instalments, each instalment would be cleared in 15 days. It is next stated in the news item that Directors of Chapal Builders also deposited Rs.50,00,000.

9. It is the case of plaintiffs that the above news items were untrue and were published without verification of the allegations because of malice, personal ill-will which caused imputation and the plaintiffs suffered loss of reputation besides suffering financial losses in their business. It is pleaded that the defamatory articles were printed and circulated by the defendants at the behest of persons best known to them. Accordingly the plaintiffs served legal notice upon the defendants. A copy of such notice has been produced in evidence.

10. Precisely the case of plaintiffs rests on malicious falsehood. Needless to emphasize that in such situation, it is for the plaintiff to prove (a) the falsity of the words; (b) the defendants' malice; and (c) that he has suffered actual loss. If he succeeds in the above; an action will be against the defendants. Indeed in para. 3 of the legal notice dated August 23, 2000 (Exh.P.5) served by the plaintiffs, it has been mentioned in glib and dubious manner "that the very same allegations" being "absolutely false" and mala fide were already challenged in Civil Suit No.138 of 2000 pending in the High Court and that the status quo was granted in the said suit. The plaintiffs witness in cross-examination stated that he has no knowledge if any Suit No. 138 of 2000 filed by the plaintiffs was pending in the High Court. He admitted that plaintiffs have not filed any documents in support of their claim. He further admitted that plaintiffs have no enmity with the defendants/owners of the newspaper. The plaintiffs however; have not stated anything either` in the plaint or in their affidavit-in-evidence about the pendency of the suit. Thus, the purpose of filing of the said suit and the controversy involved therein has remained significantly undisclosed. Intentional and deliberate withholding of the material fact to state as to how filing of said suit was relevant in the circumstances of present controversy tends to show that the plaintiffs have not come clean to this Court and their hands are soiled. Nevertheless, the words "the very same allegations" contained in para.3 of the legal notice -imperatively tend to gather that the said suit was in respect of the outer development charges payment whereof might have been disputed by the plaintiffs.

11. The news item published by the defendants was released by PPI which is news service. On perusal it clearly shows that it does not specifically or exclusively relate to the plaintiffs but it contains the names of three other builders viz. Memar Housing Society, Qasimabad Housing Scheme and Gulshan Rabia, who allegedly owed enormous dues to the KDA. The defendants, in their written statement, inter alia, took the plea that since the news item was released by the news service therefore, after receipt of the legal notice they re-checked .it from the PPI News Agency, and that they (News Agency) stood by `correctness of the news item. No ill-will or motive was attributed by the plaintiff against the said News Agency which flashed the story. It was not even impleaded as a party by the plaintiffs which, in the given circumstances, was a necessary party. The suit was, thus, bad for non-joinder of necessary party. The plaintiffs did not make any effort to lead tangible'' evidence to conclude that the news was false. The only evidence which the plaintiff brought on record, was newspaper cuttings of the clarification about the said news item, published by them in the form of advertisement in a number of newspapers of English, Urdu, Sindhi and Gujrati languages. This was not sufficient more particularly when there was clear pleading by the defendants that after receipt of legal notice they re checked from the PPI who stood by the correctness of the story. Nothing substantial was brought on record by the plaintiffs to rebut the above assertion. Neither any official from the KDA was examined nor any document was produced to show that the plaintiffs were not indebted to KDA. In such circumstances, it is quite difficult to say that the news item was false.

12. So far as the questions of malice and ill-will are concerned, those are undoubtedly the questions of fact, which in the particular circumstances of the instant case should have been spelt out lit the plaint and subsequently proved by leading evidence. But the pleadings in the suit are bereft of any such details. It is well-settled that the burden of proving express malice both by extrinsic and intrinsic evidence lies on the plaintiffs to show that the publications were actuated by some indirect or improper motive. The plaintiffs were required to bring something concrete and solid to prove their case. They could not Be relieved of their burden by merely saying that the defamatory articles were published by the defendants at the behest of persons best known to them. Such vague and unspelt statement could hardly, be credible worth consideration.

13. The case of Adeeb Javedani reported in 1995 CLC 1246 (Quetta). relied upon by the learned counsel for plaintiffs in support of plaintiffs' case is quite distinguishable. According to resume of said case, the Publisher admittedly, without having possessed the required level of special skill theoretical and practical legal know-how, vast experience and expertise after commenting upon and criticizing the role of an eminent lawyer of the country in conducting a complex murder case, had ridiculed his character and integrity. No doubt the statement was defamatory, as it exposed the plaintiffs in the said case to hatred, contempt and ridicule and was intended to injure him in his profession. Since the characteristics and features of the above' case are remarkably different from the present one, the cited case is of no help to the plaintiffs.

14. Their Lordships of the Honourable Supreme Court dilated upon the question of burden of proof in respect of plea of malice in Shaikh Muhammad Rashid v. Majid Nizami Editor-in-Chief, The Nation and Nawa-e-Waqt. Lahore and another PLD 2002 SC

514. It will be advantageous- to reproduce the relevant paragraph from the said judgment. "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 libelous 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 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. "

15. Looking at the facts and circumstances of the present case in the light of rule laid down by the Supreme Court, it will be observed that by no stretch of imagination it could be gathered that the defendants were nurturing malice or nursing grudge of any kind against the plaintiffs. Plaintiffs witness expressly admitted in his- cross-examination that they had no enmity with the defendants. The 'plaintiffs have thus failed to substantiate their claim by proving, the factum of having been libeled by the defendants and that the act was committed with intentional and deliberate malice, which is no doubt an essential ingredient in a suit for libel.. Issue No.1 is accordingly not proved.

16. Since the plaintiffs have not succeeded in proving Issue No. 1, this issue is answered in the negative.

17. As a result of the findings on above issues, the plaintiffs are not entitled to any relief.

18. The suit is dismissed. Parties shall, however, bear their, own costs. ' H.B.T./C-87/K Suit dismissed.