2009 PLP 317 (CLC)

MUHAMMAD ALAM KHAN, J.

Dr. Qamar Zaman Khan the then Incharge Civil Hospital Serai Naurang Lakki presently Medical Officer, District Headquarters Hospital Bannu has filed this regular first appeal against Mujibur Rehman Shami and others under the provisions of Order XLI, C.P.C. challenging the judgment and decree of Senior Civil Judge, Lakki Marwat in Civil Suit No.179 instituted on 28-6-2001 decided on 27-3-2004 vide which the suit filed by the appellant for the recovery of Rs. ten crore as damages was dismissed with costs.

2. Briefly narrated the facts of the case are that the appellant filed a suit for the recovery of damages against the respondents on the ground that he along with pro forma respondents were posted in Civil Police Hospital Serai Naurang and were performing their duties to the utmost satisfaction. It is alleged that on 17-5-2001 the Principal of Higher Secondary School Serai Naurang along with the staff and Umar Khan President of all Teachers Association brought a student namely Irfanullah son of Gula Mir resident of Shahtora Tekhti Khel in injured condition for treatment to the hospital who was treated by the plaintiff and pro forma respondents. Full treatment was given to the patient but in spite of that defendants/respondents Nos.1 and 2 and defendants Nos.3 and 4 published two items on 18-5-2001 and 19-5-2001 respectively in their daily newspaper `Kainat' in which certain baseless and uncalled for accusations were levelled against the plaintiff and the pro forma defendants. It was reported in the news items that the staff of the hospital was not on duty. The hospital rooms were locked and the patient was not properly treated. According to the plaintiff this news item has lowered him down in the estimation of the general public and more so, that instead of denying the news items, defendant/respondents Nos. 1 and 4 on 4-6-2001 along with some unknown persons entered the hospital, tried to snatch the official record and harassed the hospital staff, took photographs and tried to criminally intimidate the plaintiff and other staff of the Hospital. It was averred that as this action has resulted damage of the reputation of the plaintiff, as the news story was also published in the daily `Khabrain' dated 5-6-2001 and daily 'AAJ' of the same date. These news items were published and wide circulation was given to it, thus, the plaintiff claimed the aforesaid damages from the defendants.

3. Defendants were summoned who submitted their written statements. Out of the pleadings of the parties the following issues were framed:-- ISSUES (1) Whether plaintiffs have got a cause of action? (2) Whether suit of plaintiffs is bad in its present form? (3) Whether suit of plaintiffs is bad for misjoinder and non-joinder of necessary parties? (4) Whether suit of plaintiffs is time barred? (5) Whether suit of plaintiff is incomplete as no cogent reason for damages has been shown, therefore, is liable to be rejected under Order VII, rule 11, C.P.C.? (6) Whether defendants Nos.1 and 2 in newspaper "The Pakistan" and defendants Nos.3, 4 of daily "The Kainat" on 19-5-2001 published a false, self made news based on mala fide against the plaintiffs and pro forma defendants that employees and the officials of Civil Hospital Seriai Naurang were not present at the duty and the Hospital was locked when injured Irfanullah son of Gulamir was brought to the hospital for medical treatment on 17-5-2001? (7) Whether the defendants Nos. 1 to 4 and 5 to 10 after receiving a legal notice from the defendants entered in the Civil Hospital Seria Naurang on 4-6-2001 and there they harassed plaintiffs and also threatened them of dire consequences for issuing legal notice? (8) Whether defendants again on 5th, 7th, 8th and 10th of June, 2001 published self made, false and mala fide statements against the plaintiffs? (9) Whether all the news published against the plaintiffs and pro forma defendants and the harassment made by the defendants caused damages to the good reputation of the plaintiffs and also caused mental agony and anguish and if so what would be the proper amount of compensation/damages to be paid? (10) Whether plaintiff is entitled for the decree as prayed for? (11) Relief.

4. The parties produced their respective evidence as they wished to adduce and the learned Court of Senior Civil Judge, Lakki Marwat after hearing the arguments of the counsel for the parties and scanning the evidence on record, dismissed the suit of the plaintiff vide judgment and decree in Suit No.174/1 decided on 27-3-2004 and hence the present appeal.

5. As the counsel for the parties were on strike and they opted not to appear before this Court. So Allauddin attorney for the appellant and Fazle Rehman clerk of the counsel for the respondents submitted detailed written arguments which are placed on the record.

6. It was submitted in the written arguments that the alleged action was tortuous and also libelous, in which baseless and uncalled for allegation have been levelled against the appellant. It was submitted that Irfanullah student who got injured at the hands of his class fellow was shifted to the Hospital Serai Naurang. He was given full treatment in the hospital and he was also attended by the doctors on duty namely Abdul Ghaffar, Medical Officer P.W.3. The injured was also then taken to the operation theater. He was then referred to DHQ. Hospital Bannu and the medico legal report Exh.P.W.3/2 was prepared which show the timely treatment and care provided to the appellant.

7. It was submitted that after providing full treatment to the injured, the publication of the scandalous items was without justification the same was uncalled for and was based on malice and personal grudge, and thus, the plaintiff/appellant was entitled to the damages as prayed for. Reliance was placed on the case of Abdul Ghafoor v. Syed Jawed Hussain Jaffrey and another reported in PLD 2006 Kar. 691 and Altaf Gauhar v. Wajid Shamsul Hasan and another reported in PLD 1981 Kar. 515 and also on the case of Muhammad Ismail v. Dr. Muhammad Afzal Mirza reported in 1999 CLC page 958.

8. On the other hand Syed Zafar Abbas Zaidi, representing respondents Nos.2, 4, 6, 8 and 9 submitted in the written arguments that the plaintiff have not proved on the record by producing cogent and convincing evidence to the effect that any mal-treatment have been meted out to the plaintiff. It was also submitted that nothing scandalous or malicious has been printed or published against the appellant. So the alleged defamation has not been proved on the record of the case. It was submitted that the plaintiff in order to prove his case had to prove firstly the publication of the libelous and defamatory statements in the newspaper and also it has to be established on the record that the same was for ulterior motive in order to damage the reputation of the plaintiff. It was submitted that on this important aspect of the case, no evidence has been led by the plaintiff/appellant in order to establish on the record the alleged defamation or malicious action. Reliance in this respect was placed on the cases of Sheikh Muhammad Rashid v. Majid Nizami, Editor-in-Chief, The Nation and Nawa-e-Waqat, Lahore and another PLD 2002 SC page 514 and Messrs Chapal Builders v. Editor Daily Dawn and others reported in 2004 CLC page-344.

9. We have gone through the record of the case and have scanned the evidence on the file produced by the plaintiff in order to establish the allegations contained in the news items plaintiff has to establish the ill will and malice on the part of the defendants/respondents the entire evidence is silent in this respect. The plaintiff produced Medical Officer Civil Police Hospital Serai Naurang Dr. Abdul Ghaffar and Saaduddin Medical Technician of the same hospital. Umar Khan S.V. Teacher GHSS Serai Naurang also appeared a P.W.1.

10. While scanning the evidence of these P.Ws. nothing was brought on record that the alleged action was either libelous or was based on ill will an action for damages the plaintiff has to prove the good reputation and the alleged action damaging this reputation, which onus could not be discharged by the plaintiff. The case-law relied upon by the counsel for the appellant are not relevant to the facts and circumstances of the present case.

11. The statement of injured Irfanullah son of Gulamir recorded as DW.2 is of immense importance and according to his statement when he was brought to the Hospital neither the doctor nor the other staff was on duty and on repeated calls by the relatives of the patient, the duty doctor came very late the statement of Qadratullah Journalist Exh.D.W.1/1 was made by Irfanullah injured himself. Exh.D.W.1/2 is another statement which was given to the media and the same was published in the newspaper. These statements of the injured Irfanullah D.W.2 was the basis for publication of the news item. These statements were not based on any ill will or mala fide intention but rather were fair comments on the prevailing situation in the hospital so the statement injured with respect to treatment meted out to Irfanullah the victim/patient would have priority over the entire evidence because he was the person who suffered injury and because of the alleged mal-treatment and not providing the medical care in time to him, resulted in publication of the alleged news items, which in no way were scandalous, but was the voice of a student showing his grievances, so the fair comments and raising the voice against the mal-treatment will not authorize a person to bring an action for damages.

12. The judgment of the learned trial Court is just, legal and in consonance with the established principles of appreciation of evidence, which calls for no interference and the same, is maintained.

13. In view of the facts and circumstances of the case narrated above, there is no force in this appeal which is dismissed with no order as to costs. H.B.T./6/P Appeal dismissed.