1997CLC918 (PLP)

5. This application was contested and a counter‑affidavit was filed on behalf of defendants Nos. l and

2. On this application while directing notice to defendants, an interim order was passed to the effect that the defendants should not publish any defamatory matter in respect of plaintiff. When this application came up for final hearing on 26‑10‑1993 before late Mr. Hussain Adil Khatri, J., he passed the order as under. After arguments at some length it is agreed that the application may be disposed of in the following terms: "The defendants will be at liberty to publish the news in respect of the plaintiff‑society and its Managing Committee, concerning any proceedings pending with the officials of the Cooperative Department or under their contemplation and/or concerning the judicial or quasi- judicial processing in respect of the acts or activities of the Managing Committee of the plaintiff‑society, without making unwarranted or undue comments."

6. Thereafter issues were settled when the instant application was filed to which objections as well as counter‑affidavit were filed by both the defendants denying the alleged disobedience or breach of injunction on their part.

7. At the hearing, learned counsel for the plaintiffs and the defendant No. l in person addressed this Court while defendant No.2 did not turn up in person or through his advocate.

8. Learned counsel for the plaintiffs referred to the contents of news published in the paper in its four issues marked ' C/I' to ' C/IV' . It is agitated at the Bar that though permitted to publish news in respect of the plaintiffs in respect of judicial or quasi judicial proceedings in respect of the acts or activities of the Managing Committee of the Society without making unwarranted or undue comments, defendants in the impugned issues have published material containing unwarranted, derogatory as well as defamatory comments in violation of the injunction order passed. by the Court. Grievance is made of the fact that the defendants mala fide and dishonestly commented upon various activities of the plaintiff‑society with ulterior motives by publishing their activities in a manner which can hardly be considered as just, fair and reasonable on the face of it. On the other hand view expressed by the defendants, is that by the impugned publications they did not violate the injunction order passed by this Court which does not restrict, prohibit, prevent or injunct them from publication of any news in good faith. The Court order only cautions them from making undue and unwarranted comments, which have neither been made nor published.

9. Upon a careful examination and analysis of the impugned news items, it is highly difficult to hold at this stage whether the news published by the defendants contains undue and unwarranted comments on the part of the defendants. In the face of controversy over the facts alleged and contradicted in the counter‑affidavit, the question is not free from difficulty to say whether the defendants in the exercise of their right of freedom of expression as guaranteed by Article 19 of the Constitution violated the injunction order or rendered themselves liable to punishment for breach of injunction order.

10. Article 19 of the Constitution reads as under: "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. "

11. Constitutional provision reproduced above postulates that reasonable restrictions may be imposed by law on the right to freedom of speech and expression in the interest of glory of Islam or the integrity, security or defence of Pakistan or any part thereof. In my view apparently the impugned publications on the face of it and without the determination of the controversy cannot be regarded as culpable and violating the restriction imposed by the injunction order.

12. While learned counsel for the plaintiff vigorously contended that by publishing news items vide Annexures ' C/I' to ' C/IV' defendants committed wilful and deliberate breach of injunction order and thereby rendered themselves liable to penal consequences by way of attachment of their property and confinement to prison, defendant No. l on his part very humbly and respectfully urged that by these publications neither the defendants committed any violation of impugned order nor made undue comments or unwarranted observations with regard to the acts and activities of the plaintiff‑society.

13. As to what constitutes unwarranted and undue comments would depend on the facts of each case and every case must be viewed from different angle and adjudged on its own facts and circumstances. No hard and fast rule can be laid down to determine such issues of fact. It may be observed that according to the plaintiffs by publishing news item Annexure ' G/I' relating to results of elections of Managing Committee of the plaintiff‑society by using the words ( Farakh Dily) defendants committed the act complained of. Likewise by publishing Annexure ' C/II' relating to the irregularities and illegalities in holding elections of the plaintiff‑society with reference to the statement of Mr. Jaseem Khan, a member of the society defendants committed the breach of injunction. Again the publication Annexure ' C/Ill' printing a story in relation to postponement of elections of the plaintiff‑society and by citing instances of so‑called illegalities with reference to a member of the society namely Jaseem Khan a former Inspector‑General of Police, according to the learned counsel amounts to an unfair and uncalled for comment reflecting adversely on the bona fides of the plaintiffs‑society done in good faith and strictly according to law. Lastly, learned counsel took serious exception to the publication Annexure ' C/IV' highlighting the statement of Jaseem Khan pleading for setting aside the elections of the plaintiff‑society conducted on 30th December, 1993 for various reasons which in the assessment of the plaintiff‑society amount to vilifying and scandalising the members and office‑bearers of the society with ulterior motives.

14. Conversely, defendant No. l who is the Chief Editor of the Newspaper justified the publication of these news for the reason that Jaseem Khan is not only an active sitting member of the society, he has been complaining to Registrar, Cooperative Societies and high functionaries pin‑pointing unlawful acts in the conduct of elections, appropriation of funds, allotment of plots and administering the affairs of the society in a disorderly and unlawful manner. This defendant is firmly of the view that in the enjoyment of right to freedom of speech and expression guaranteed to the citizens of Pakistan as contemplated by Article 19 of the Constitution, defendants cannot be restrained by way of general and unfettered pre‑censorship on the expression of opinion or publishing the views of the members of the society generally and office‑bearers thereon in particular.

15. Without touching the merits of the contentions advanced by the parties and without deciding the questions finally it may be observed that the extracts complained of in the impugned publications do not seem to adversely affect the glory of Islam or the integrity, security or defence of Pakistan, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, commission of or incitement to an offence for which reasonable restrictions could be imposed by law.

16. On the face of it, Article 19 of the Constitution guarantees the freedom of the press. Liberty of the Press means complete freedom to write and publish without censorship or restriction which may be absolutely necessary for the preservation of the just and Islamic society. A few restrictions on the freedom of the Press in the light of conditions prevailing in a country considered absolutely essential may be justified by circumstances but no general and unreasonable restrictions can be imposed on the freedom of the Press except in times of grave emergencies, such as war, civil commotion on a large scale and in order to protect the security and integrity of the State. In the present day society, Press has been considered to be the mouth‑piece of the public opinion and accepted as fourth pillar of the State. Its functioning is more important now when the country has become free from its dominion status. The right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication subject to such restrictions which may be imposed by law within the scope of the fundamental right guaranteed by the Constitution. The liberty of the Press consists in laying no previous restraints upon publication and not in freedom from censure for criminal matters when published. Because every free man has an undoubted right to lay what sentiments he pleases before the public, to forbid this is to destroy the freedom of the Press, but if he publishes what is improper, mischievous and illegal, he must take the consequences of his own temerity. However, to punish any dangerous or offensive writings which when published, shall on a fair and impartial trial be adjudged, of a pernicious tenancy is necessary for the preservation of peace and good order of Government and religion and the only solid foundation of civil liberty. Thus the liberty of the Press extends only to the publication, with I immunity of truth, with good motives, for justifiable ends though reflecting on Government, Courts or individuals. Imposition of pre‑censorship on a newspaper is broadly speaking an infringement of the freedom of the Press.

17. There is no gainsaying that a general or absolute order requiring a newspaper not to publish a news or story cannot be supported by any canon of law on any ground whatsoever. Subject to law of the land and rights available to the citizens, members of the Press are always obliged and owe a duty towards the citizens to act with complete freedom, independence, responsibility and circumspection so that they do not invade and infringe the rights available to a citizen. Any invasion of such right may be visited with penal consequences but not in a summary manner as prayed in the present C. M. A.

18. Needless to reiterate factual controversies cannot be decided without adequate and unimpeachable evidence and affording an opportunity of defence to the person proceeded against. Obviously, neither any evidence was adduced in this suit nor a charge framed against the defendants in order to render them liable to punishment on a criminal nature. By these observations however, I may not be understood to grant an absolute licence and unfettered immunity to the Press from scrutiny of their acts and liability arising out of such acts under the Law of Torts as well as criminal administration of justice. For the moment while disposing of this application without any definite finding defendants are hopefully expected to act strictly within the scope of their lawful authority with complete impartiality and circumspection so that they do not land themselves into trouble for unscrupulous and disgruntled exercise of their right to freedom of expression.

19. Moreover since the questions raised in this application would also arise for final determination in the suit itself after recording evidence, in my view it may be preposterous to decide the fate of the present controversy at the moment which is disposed of subject to aforesaid observations. A.A./A‑95/K Order accordingly.