P L D 1975 Karachi 379 (PLP)

"People are hankering for water and the K. D. A. officers are cultivating vegetables. Karachi 191h May (PPI).‑While the people of Federal Area are facing acute water shortage, one officer of the K. D. A. has started cultivating vegetables on an area of about 2 acres. The said plot of land situate between Block No. 8 and No. 15, which was allotted to the Medical Officer of the K. D. A. for constructing Maternity Home and Dispensary three years back, but instead of constructing buildings, cultivation of vegetable has been started on the said plot to which the K. D. A. provides water while the Dispensary and Maternity Home have been constructed on a nearby plot. Besides that, a motor garage has also been constructed illegally on the right side of the road in the said area. There is great shortage of water in the said area and water does not reach at all in the most of the taps of the blocks and the inhabitants have to bring water from far off area for their necessities. Several people have started collecting water by digging ditches because the water pressure is so low that it cannot reach up the ground level of the houses. It is worth mentioning that the K. D. A. in view of the water shortage, has also stopped construction of houses in some blocks." The news published in Daily Millat dated 21st May 1969, was also more or less to the same effect.

3. Following the aforesaid publication the plaintiff addressed legal notices dated 24‑5‑1969 on the defendants in which the news item published was described as malicious and false, published to lower the plaintiff's estima tion of right thinking man and exposing him to hatred, contempt and ridicule amongst the reasonable persons of the locality particularly and Karachi in general. No reference was made in this notice, except in general terms, of the specific allegations contained in the publication. The news agency, the defendant No. 5, in its reply dated 24th July 1969, asserted that the news item was based on correct information and facts which had been duly verified and that the site had also been photographed. The news agency denied the allegation of malice and referred to its professional duty to give news of public interest for corrective measures. The news papers in their reply dated 2nd June 1969, stated that they had no reason to doubt the correctness of the news item released by a reliable news agency like the P. P. I. and that the publication was made in good faith and in normal course. All the three newspapers gave the plaintiff an opportunity to send his version or contradiction so that it may be published equally prominently in their news papers as news item.

4. Issues framed in this case and adopted by the Court read as follows :- (1) Whether the plaintiff occupies such a distinguished and respectable position in social and medical circles as is alleged in the plaint. (2) Whether the plaintiff has substantial income from medical practice? (3) Whether the Plot No. ST‑1/D in Block No. 9 was allotted and its possession was given to the plaintiff as alleged ? (4) Whether the plot in question bad water connection prior to 17‑5‑1969 and the application dated 17‑5‑1969 for water connection was manipu lated by the plaintiff as alleged by the defendant No. 1 in para. 4 of the written statement? (5) Did the plaintiff resign the seat of Basic Democracy, if so, why? (6) Whether the news item was published and circulated by the defen dant No. 5, and other defendants maliciously and falsely to lower the plaintiff in the estimation of the right thinking men and exposed him to hatred, contempt and ridicule? (7) Whether the news item circulated by the defendant No. 5 and published by the other defendants was true in substance and the comments made in good faith and without malice upon the facts, in performance of the journalistic duties in larger public interest? (8) Whether there was a vegetable garden on the plot in question at the time of publication of the news item and prior to it? (9) Whether the defendants Nos. 1 and 4 requested the plaintiff to send a contradictory statement if the news item was false? (10) Did the plaintiff issue any contradictory statement? (11) Did the defendant No. 5 not send any reply to the legal notice as alleged? (12) Whether the defendants are liable to pay damages to the plaintiff as claimed or any damages? (13) Whether the defendants are entitled to get examplary costs?"

5. Issues Nos. 7, 3, 4, 5 and 8.‑These issues relate to the impugned publication and may, therefore, be dealt with together. In an action for damages for libel it is not part of the plaintiff's duty to prove that the words complained of are false for law presumes that in his favour. Since the A defendants have pleaded justification as their defence the onus was on them to prove that the imputations were true and not merely that they believed them to be true. That the news item refers to the plaintiff, though he is no named in it, is admitted by the defendants. The news item is per se defama tory. It begins by referring to the admitted acute scarcity of water in the Federal "B" Area at the relevant time. It goes on to say that the plaintiff was allotted a two and half acres plot three years ago for the purpose of constructing a maternity home and dispensary but instead he had started vegetation on the plot with the water supplied by the K. D. A. It then states that the plaintiff had built a maternity home and a dispensary on another nearby plot and raised unauthorised construction of a garage right on the road. The news items concludes by a grim picture of how the residents of the area had been most adversely affected by the scarcity of water even for essential purposes. The headlines given by the newspapers make the matter worst for it projects the gravament of the charge against the plaintiff that he, a K. D. A. officer must have his vegetation grown with water supplied by K. D A. though public in the area does not have water even for essential daily use. No attempt was made on behalf of the defendants to prove the allegations of facts made against the plaintiff as being true and correct. On the other hand, the plaintiff has led evidence which clearly establishes that he was allotted the plot in question on 14‑10‑1968 i.e. 7 months prior to the publication of the news item and not three years ago. Again the size of the plot in the news item was alleged to be 2J acres plot while the actual area is 2980 sq. yds. The imputation, therefore, that the plaintiff obtained a large plot for constructing Maternity Home and Dispensary and failed to do so for a long period of three years is false. The plaintiff has further proved that he applied for K. D. A water connection on the plot on 17‑5‑1969 for which necessary payment was made by him on 19‑5‑1969 and the actual water connection of 1/2 diameter connection was made available to him on 19‑5‑1969. The news item however, creates an impression that for a period of long three years the plaintiff was growing vegetables on the plot with the water supplied by the K. D. A. As regards the allegation relating to the other plot, the uncontradicted evidence of the plaintiff is that he has not made any unauthorised construction of a garage right on the road as alleged in the news item. It would also appear from the record of the K. D. A. that the complaint appearing in the news item was investigated by them and they found that while it was correct that the plaintiff had grown some plantations on the plot that this was not by using the K. D. A. water but from a well dug on the plot by the plaintiff.

6. The only attempt made on behalf of the defendants in justification of the news item were certain photographs Exh. 8/39 to 8/42 which show some plantation on the plot The plaintiff's contention was that the photographer has not been examined but it does not really matter for it was admitted by the plaintiff that at least one of the photographs, Exh. 8/39, was that of his plot and this photograph clearly shows some plantation on the plot. Consider able arguments were addressed at the Bar as regards the plantation on the plot for while the plaintiff admitted that he had grown as many as 36 permanent trees on the compulsory open space, the defendants urged that it was vegetable garden. Be that as it may, the charge against the plaintiff was that he was growing plantation on the plot with the water supplied by the K. D. A. while the residents of the locality were starved of water, even for essential purposes. The defendants have failed to prove that the plaintiff was using K. D. A. water. This allegation was enlarged in the Written Statement of defendant No. 1 who went on to assert that the plaintiff appeared to have manipulated his application for water connection dated 17‑5‑1969 to prove that there was no cultivation before 21‑5‑1969. The news agency went a step further and asserted that the plaintiff had water connection prior to 17‑5‑1969 and water was used for irrigating the vegetable garden whether or not such a communication was on the K. D. A. record. These serious allegations so freely made were equally freely abandoned at the trial and were not even referred to in the course of arguments. I have, therefore, no hesitation in holding that the defendants have failed to prove that the allegations and the imputations against the plaintiff in the news item were true or even substantially true. All that was sought to be argued was that a reporter who had visited the site a day before the publication, found K. D. A. aster connection on the plot which reasonably led him to conclude that the plantations were grown by use of K. D. A. water, The burden was on the defendants to prove that the imputations were true and not that they merely believed them to be true. The statements contained in the news item are clearly to the discredit of the plaintiff and to use the formulae which won favour with the Judges of earlier time, exposing the plaintiff to hatred, ridicule or contempt, causing him to be shunned and avoided. The plaintiff was, thrown up as a man who had no concern for his less unfortunate fellow citizens and though a doctor by profession, completely devoid of any humanity. By reference to what was alleged to be improper conduct of the plaintiff in holstering his case by examining witnesses who perhaps were not telling the whole truth and exaggerating the effect of the publication, it was argued that the plaintiff was not possessed of that character which he professes to possess. This conduct however, will not make the prior published news item anyless defamatory. At best this aspect may have some relevancy in computing the damages. I, therefore, hold that the defendants have failed to justify that the news item published was true. As regards the defence of fair comments the same is really not available to the defendants for a comment, in a statement of opinion on facts and the defence of fair comment does not extend to cover mis‑statements of facts, much less false assertion of facts, however, bona fide.

7. Issues Nos. 1, 2, 6, 9, 10, 11, 12 and 13.‑These issues are in substance relevant to the relief which the plaintiff claims in this suit. In the plaint the plaintiff claims damages at Rs. 1,00,000 on the ground that he has been `defamed, ridiculed, tortured in mind and the image of his character has been disfigured and besides actual loss in business he has suffered a general loss in credit and reputation in an entangible ( ! ), manner! In the evidence an attempt was made to prove the actual loss of Rs. 80,000.00, by reference to reduction in income by Rs. 6,000 per month. The Income‑tax returns, however, filed by the plaintiff do not show any reduction in his receipts which receipts have in fact progressively increased from year to year since the publication. It was perhaps for this reason that Mr. Habibur Rehman the learned counsel for the plaintiff referred to the alleged loss to the plaintiff, of a sum of Rs. 80,000 due and payable to him by K. D. A., as a result of the publication of the impugned news item. However, in his cross‑examination the plaintiff admitted that this amount was paid to him later. In any event this delay in payment of Rs. 80,000 cannot be attributed to the publication of the news item for the K. D. A. itself found the news item to be false. It will also appear from the evidence of the plaintiff that he had himself expressed his disinclinations to continue as K. D. A. Medical Officer as he was not paid this amount and that the problem of delay in payment of the bill was not exclusive to him but was a general complaint of all the doctors on the K. D. A. panel. Special damage, therefore, remains unproved. Ac regards the general damages the learned counsel for the defendants referred to the plaintiff's conduct in examining not very truthful two witnesses, P. W. 3, S. Baqar Ali and P. W. 4 Ibne‑Ali Zaidi ; the procuring of the complaints dated 22nd May 1969, Exh. 8/11 and dated 22‑5‑1969, Exh. 8/14 from the residents, which appear to have been brought into existence for purposes of this litigation ; his emphatic denial that he did not grow any planation ; his failure to give his version of the facts and in particular to make it known that he was using the water from the well dug by him on the plot, and contended that plaintiff was entitled only to negligible damages. That these allegations have some substance can hardly be denied but the question is the extent to which the Court will allow itself to be affected by them once it is established that a false news item was published and the defendants far from making any attempt to prove justification, have not only persisted in their defence of truth, right up to the conclusion of the trial, but added further allegations of manipulation by the plaintiff in obtaining, off the record water supply from K. D. A. for plantation even prior to 19‑5‑1968. "The defendants have in other words aggravated the defamation. The only thing which goes against the plaintiff in mitigation of damages is that had he given his version of the facts which the defendants were prepared to publish he would have in some measure rehabilitated his reputation. Looking at all. the circumstances of the case I am of the view that a sum of Rs. 15,000 ,(Rupees fifteen thousand only) as damages will adequately meet the ends of justice. Accordingly, the suit is decreed jointly and severally against the defendants for a sum of Rs. 15,000 Rupees fifteen thousand only) with proportionate cost. K. B. A. Suit decreed.