P L D 1993 Lahore 509 (PLP)

This judgment will dispose of seven Revisions (Nos. 1644, 1645, 1646, 1647, 1648, 1649 and 1650 of 1987) as all those arose from the same consolidated judgment/decrees dated the 29th of September, 1987, whereby seven separate appeals brought by each of the respondents-plaintiffs against rejection of their plaints, were allowed.

2. The revision petitioner Malik Ghias-ud-Din was defendant in a suit re: Muhammad Saeed v. Zia-ud-Din, etc., brought in October, 1981, for partition of property. The respondent Ch. Abdul Majeed was engaged therein as counsel for the plaintiff, namely, Muhammad Saeed. His allegation was that the petitioner appearing there as D.W. 9 on the 25th of April and the 5th of May, 1985, deliberately defamed him by showing him to be 'bayeeman', 'zalim' 'kafer'. He brought the present suit for recovery of damages to the tune of Rs.24,000 stating that besides being an educated person like an advocate, he firmly believed in 'tauheed' and 'risalat' and that condemning him openly as 'bayeeman', 'zalim', or 'kafer' amounted to height of his humiliation in the eyes of people especially those who were present in the Court. He added that there was no purpose in making such derogatory remarks except to lower his prestige in the eyes of people and that the petitioner occupying a responsible post in the High Court, should have amply known that use of these words against a lawyer would be defamatory.

3. Exactly in the same manner the other respondents too in their respective suits had taken exception to the similar words, namely, 'fraudia, bayeeman, zalim' and 'kafer' etc. used against them by the petitioner and each one of them sought compensation from him to the tune of Rs.24,500 on account of the humiliation and defamation caused to them.

4. It seems that without riling written statements the petitioner took objection in the applications under Order VII, rule 11, C.P.C., to the maintainability of the suits on the ground that there was no cause of action to bring them, in that his remarks as a witness were absolutely privileged.

5. The trial Court framed a preliminary issue as under:-- "Whether plaintiff has no cause of action? OPD" It accepted the objection relying mainly on M. Moosa v. Mahomed, etc. PLD 1954 Sindh 70, M. Moosa v. Muhammad, etc. PLD 1968 SC 25 and M. Moosa v. Mahmmad, etc. 1975 SCMR

115. Additionally, it also made reference to M. Moosa v. Mahomed, etc. PLD 1959 W.P. Karachi 378 wherein it was enunciated that a witness enjoyed an absolute privilege about the remarks made by him in his testimony in judicial proceedings. Consequently it found that there was no cause of action and rejected the plaint. In appeal, however, the judgment was reversed construing that the decision rendered in PLD 1954 Sindh 70 was later modified by the Supreme Court when the same case came up before them in PLD 1968 SC 25 as also 1975 SCMR

115. The lower appellate Court noted that the privilege enjoyed by a witness for such remarks was not absolute, but instead it was qualified and that it was open to a plaintiff to establish that the remarks made against him by a witness were mala fide, irrelevant to the point in issue or were otherwise not pertinent in the context. Consequently it allowed the appeal, set aside rejection of the plaint and remanded the case for its decision on merits.

6. It was admitted on all hands that the rule on the point was to be construed from the decision of the Supreme Court rendered in PLD 1968 SC

25. Both the Courts relied upon it though their findings were diametrically opposed. It would, therefore, be pertinent to cite some of its portions to see which of the two views was most appropriately attracted to the facts of the present case. In fact, it was a very elaborate judgment on the point discussing a large number of authorities dealing with the subject-matter in hand. The Court observed: "Under English law an Advocate was conceded absolute privilege with reference to the words spoken or written in his professional capacity. It seems that following the above principles the British Courts in India held that an Advocate enjoyed an absolute privilege in respect of civil liability for words spoken or written by him in the course of legal proceeding in which he was engaged. These principles of public policy and justice upon which the English view is based, were not, however, uniformally applied by the High Courts in British India ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... It is not always safe and proper to import in its entirety, the rules of English law on this subject as principles of equity, justice and good conscience. No doubt, upon the grounds of public policy and free administration of law certain privileges are extended to the Judges, Advocates and witnesses. Now, the question is, as to what extent a lawyer should enjoy this privilege? Should he be given protection of absolute privilege? In other words, can the question of malice, mala fides and irrelevency be raised with reference to words spoken or written by an Advocate in his professional capacity ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... ... ... ... ... .. The English Courts have extended this privilege much more than was reasonably necessary to protect the interest or discharge of the duty of an Advocate which is the foundation of his privilege ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... But, it does not mean that he should also have the privilege of being malicious. His duty is to assist the Court, to protect the interests of his client. He, however, should not be given a licence to make such defamatory statements which are not pertinent to the discharge of his duties or to the protection of the interests of his client. Where there are privileges there are also corresponding obligations and liberty should not be allowed to degenerate into licence. The Court has, therefore, to see whether what is said in response to a duty or right, is quite connected with and relevant to the issue in question. But, if the statement deals with a matter which is not in any reasonable sense germane to the subject-matter in issue, the protection of privilege should not be extended to that statement .. ... ... This view will be more consistent with justice and legal principles. An Advocate will be entitled only to claim qualified privilege for words spoken or written in his professional capacity and not an absolute privilege .....The privilege of an Advocate will also apply to the parties in the litigation to the same extent."

7. One thing discernible from the above longish quotation will be that the absolute privilege hitherto enjoyed by the parties themselves and their Advocates was modulated and instead they were allowed only a limited or qualified protection. A witness too was treated at par with them in the matter of claiming absolute protection formerly, but his privilege was not reduced. Counsel contended that the petitioner in so far as he made the statement under consideration as a witness, would continue to enjoy absolute privilege as the Supreme Court nowhere in the detailed judgment hinted at reducing his immunity in the case. He sought support from Kali Nath Gupta v. Gobinda Chandra Basu (Vol. V The Calcuatta Weekly Notes 293) where a witness's statement as distinguished from that of a party, was held absolutely protected. The argument was not without force because the judgment while eloquently A qualified the privilege of parties and their Advocates, made no reference whatsoever to reducing the same vis-a-vis a witness. The reason was that a witness was bound to say all that he knows even though defamatory. This much latitude was indispensable for searching truth to render justice.

8. Secondly assuming that the privilege of a witness was also curtailed, it all depended upon quite a few considerations pronounced above. The ratio was: "But it does not mean that he should also have. the privilege of being malicious ... .. .. He, however, should not be given a licence to make such defamatory statements which are not pertinent to the discharge of his duties or to the protection of the interest of his client ... ... ... ... ... The Court has, therefore, to see whether what is said .. ... ... .. .. is quite connected with and relevant to the issue in question. But, if the statement deals with a matter which is not in any reasonable sense germane to the subject-matter in issue, the protection of privilege should not be extended to that statement... A fortiori it would be seen if the witness was not showing malice; was not trying to degenerate the privilege into a licence; was stating something quite connected with and relevant to the issue in question; and was not dealing with a matter not germane to the point in issue. If there were indications that he was actuated by any of these considerations, obviously his statement will not be protected. Unfortunately this test was not specifically applied to the statement, in question and perhaps for this reason the lower appellate Court remanded the case. Counsel claimed that remand could have been obviated had a little effort been made to examine the petitioner's statement in the entire milieu of the case. He tried to maintain that looking at the remarks attributed to the petitioner, one would be amply justified to assume that he was not acting out of malice or was degenerating the protection into a licence or was stating anything not germane or relevant to the subject-matter in issue. He drew attention to the context of the statement claiming how the petitioner charged the respondent with fraud, zulm, intellectual dishonesty, and beimani for having misled him to believe that his earlier statement made before the Guardian Judge was conducive to the interest of the minor orphans. Those remarks verbatim were:--

9. Malice was essentially a question of fact meaning mostly conceptual treatment based upon some motive. It has been defined in Wharton's Law Lexicon, Fourteenth Edition (page 622) to mean ... ... .. it will against a person but in its legal sense it means a wrongful act done intentionally without just cause or excuse ........... ....... A perusal of the plaint would disclose that no motive or unterior reason was attributed therein to the petitioner in having made the typical remarks against the respondent-Advocate. In other words, the element of malice was missing in the plaint. Instead, the plea taken there was that the remarks were made deliberately w,hich expression may not be synonymous with the motive besmearing thinking of the petitioner against the respondent. The next element of the remarks being totally unconnected or irrelevant to the point in inquiry, was equally missing in this case, inasmuch as wherever made, those were heavily related to showing the property in question as 'tarka' of the propositus on whose demise partition thereof was being sought. The petitioner explained lamenting how the respondent earlier persuaded him to make a typical statement before a Court on the pretext that it was conducive to the interest of the minor orphans. He thought, in his own way, that the statement obtained from him by the respondents was detrimental to the interest of minor orphans and that is why he dubbed them to be cruel. He reiterated such a remark at a little later stage of his statement, affirming once again that his testimony before the Guardian judge presumably against the interest of orphans, was the result of decetiful and unconscionable promptings of the respondent who was then acting as counsel for the plaintiff in that suit. What was remarkably conspicuous on both these occasions, was that the petitioner was feeling qualms of conscience in recalling that he was obliged to make involuntarily a statement against the interest of orphans because of the respondent's careless and unconscionable attitude. Reliance was placed on Jiwan Mal v. Lachman Das (99 IC 1927 Lahore 7.51) and Mumtaz Ali Bhutto, etc. v. The Deputy Martial Law Administrator, etc. PLD 1979 Karachi 125 where defamatory remarks made volunatarily were held not privileged. The remarks here obtained in cross-examination were not voluntary and were, therefore, absolutely privileged.

10. The remarks were not unconnected or irrelevant to the matter in issue either. Conversely, those were evoked when the witness was apparently confronted with his previous statement and were deeply relatable to the subject-matter of the suit. Their purport was to express how false suggestion was made to the petitioner pertaining to the interest of orphans in the property. Obviously those were germane to the matter in inquiry and were fully protected. This view is fortified by the dictum of Babu Parshad v. Muda Mal (1913 IC (Vol. XVIII) 331) where a defamatory statement being relevant to the inquiry was held privileged.

11. The third ingredient was of degenerating the protecting into a licence. It looks that the petitioner who was defendant in that case was cautious in his examination-in-chief to have had made no remark whatsoever against the respondent-Advocate. In terms of Elavarthi Peddabba Reddi v. lyyala Varada Reddi (116 IC 1929 page 337) he had-some compulsion to make them in the cross-examination pursuant to certain suggestions, and were -neither wanton. nor irrlevant , nor of his own initiative. He thought that a sort of trap was being laid against him in the cross-examination, and in an attempt to reduce rigours of his previous statement, he felt he had been subjected to or Again to say, these aspersions arose out of the proceeedings dealing with the property sought to be partitioned and not something extraneous so as to make them unreasonable, or totally unconcerned of entirely degenerate. Even on this score those would claim protection.

12. Last but not the least, a witness seems to have been given comparatively an exalted position in the Holy Qur'an. In Verse No.282, Surah Baqrah, (Tafheemul Qur'an), the subject seems to have been directly dealt with. It is noticeable that a scribe and a witness both ,have been treated alike into for being guarded against any vexation or harassment. In fact exposing he such a treatment would constitute a sin, against commission of which God Almighty held out a warning. The text no doubt deals with preparation of documents by a scribe and their attesting by witnesses, yet there was no reason not to accord the same protection to a 'shaheed' (witness) deposing to something else in a Court of law. He has not to be given any 'zarar' which obviously would include his liability to be either prosecuted or sued for defamation. In a way, he would enjoy a Qur'anic immunity against any action relatable to his act of becoming a 'shadeed' (witness). This alone suffices to knock out the respondents' suits for enforcing liability against the petitioner on account of libel or slander.

13. Counsel for the respondent, inter alia, urged that the plaints could not have been rejected by taking into consideration some material introduced by the defendant (petitioner) and that the Court should have confined itself to their contents and nothing more. He stressed that even the application brought under. order VII, Rule 11, C.P.C. by the petitioner was sketchy and bereft of any details so as to call for the extreme action of rejecting the plaint which contrarily gave a complete detail of the cause of action arising from the defamatory remarks uttered by the petitioner as a witness. It is true that ordinarily no extraneous material may be considered to reject a plaint but the rule has undergone a change as reported in Muhammad Akhtar, etc. v. Abdul Hadi, etc. (1981 SCMR 878) which authorised taking into account material set up by the defendant to establish that the suit as framed could not proceed on. Applying the same to the plaints here, it was not wrong on the part of the trial Court to have kept in mind the plea of the petitioner that his remarks as a witness were absolutely privileged, calling for no action at law for compensation. As discussed in some detail above the remarks of the petitioner in his capacity as a witness were absolutely privileged according to the enunciation of the Supreme Court rendered in PLD 1968 SC

25. It may be reiterated that while the privilege of a party or an Advocate was whittled down, that of a witness was left uncurtailed. Probably such distinction, evolved in the Kali Nath Gupta's case, was tacitly approved. The inescapable consequence was that the plaints were without cause of action.

14. Various authorities were cited by learned counsel for the respondent in support of the plea that the remarks made by the petitioner were uncalled for, not germane to the inquiry nor were bona ride. These grounds have been taken care of in the foregoing portions of the judgment. None of these objections seems to stand the test of scrutiny and, therefore, all are repelled.

15. I was conscious of the fact that neither of the Courts below expressed opinion as to whether the statements made by the petitioner could not be afforded qualified protection. Ordinarily the, case should have been sent back for getting their opinion recorded, but I must say the question of curtailing a witness's privilege arises only in the alternative. The plenary position is that he enjoys an absolute privilege as the ultimate object of dispensing justice may rest on his testimony which in all probability must convey truth relating to the inquiry. Placing any fetters on him may detain him from deposing truth or at least class=Section2> all that he knows about the point in issue and the same might misdirect the course of justice Even the alternate case of giving only a qualified privilege to the petitioner's statement had to be confined to his deposition, which being available in its entirety on the record, was scrutinized at length. His remarks did t a ear to have been wanton reckless or beyond the pale of the inquiry. This is why that aspect of the case was considered here itself for finally deciding the case.

16. As a result of the above discussion, the revision petitions are allowed, the impugned judgments/ decrees of the lower appellate Court are set aside; those of the trial Court are restored and the respondents' plaints are rejected leaving the parties to bear their own costs throughout. AA./G-141/L Revision accepted.