P L D 1962 (W (PLP)

MUHAMMAD YAQUB ALI, J.-This is an appeal by Ch. Ghulam Ali (Plaintiff), Headmaster, M. B. High School, Tandlianwala, from the concurrent decrees of the Senior Civil Judge and District Judge, Lyallpur, dismissing his suit for recovery of Rs. 5,000 as damages from Ch. Abdul Hafeez, Secretary, Municipal Committee, Gojra (defendant), on account of libel.

2. The controversy between the parties is sufficiently reflected in the following Issues framed by the trial Court on the pleadings of the parties : - (1) Whether the defendant in an inquiry before the police in connection with the application of Mst. Taleh Bibi made a statement before the police that the plaintiff had committed rape with Mst. Taleh Bibi and had immoral connections with Mst. Taleh Bibi ? (2) Whether the defendant in an Inquiry by the Inspector of Schools, Multan Divisions, made a statement that the plaintiff had immoral connections with Mst. Taleh Bibi ? (3) Whether the defendant compelled Mst. Taleh Bibi and instigated her to make a statement that the plaintiff had immoral connections with Mst. Taleh Bibi. (4) Whether the defendant instigated Mst. Anwari Begum to make an application to the Inspector of Schools, Multan Division, to the effect that the plaintiff committed rape on Mst. Anwari Begum ? (5) Whether the defendant instigated Mst. Anwari Begum to file a criminal complaint against the plaintiff in which an allegation was made that the plaintiff had committed rape with Mst. Anwari Begum ? (6) Whether the defendant secured an entry in the birth register of the Municipal Committee, Gojra, that the plaintiff was the father of the son of Mst. Anwari Begum ? (7) Whether the defendant had just a cause or excuse to make the above statement or to do the above actions and believed the same to be true ? (8) Whether the statements made and actions taken by the defendant were in the capacity as Secretary, Municipal Committee, Gojra, and as such the statements and the actions of the defendant are absolutely privileged ? (9) Whether the plaintiff has suffered in view of the above statements and the actions of the defendant an Injury to his reputation, good name and status in the society and is entitled to damages and to what extent

3. No evidence was led by the plaintiff to prove issue No.

1. An application was made by him to summon the record of the case in which the defendant had allegedly stated that "the plaintiff had committed rape on Mst. Taleh Bibi and had immoral connection with Mst. Taleh Bibi" but the Inspector- General of Police claimed privilege for the departmental record and the learned trial Judge relying on I. M. Lall v. Secretary of State (A I R 1944 Lah. 209); Jan Muhammad v. P. N. Razdon and others (A I R 1944 Lah. 433) and Emperor v. Ch. Raghunath Singh and others (A I R 1946 Lab. 459), rejected the plaintiff's application and answered issue No. 1 In the negative. Mr. Hidayat Ali Taib, learned counsel for the plaintiff, contended that the Courts below have erred in excluding the very piece of evidence which would have established issue No. 1 and addressed us at great length on the scope of section 123 of the Evidence Act which forbids "giving evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit." It is clear that if the record relates to any affair of the State the power to grant or withhold requisite permission vested in the head of the department is absolute. But can the presiding' officer adjudicate on the nature of the record ? There is considerable conflict of opinion on this important point of law. The leading authority on the subject is of the House of Lords in Duncan and another v. Cammell Laird and Company Limited (166 L T R 366), which has been differently construed in mere than one judgment. In our opinion the authorities relied upon by the learned trial Judge are in accord with the dictum of Viscount Simon, L. C, who delivered the judgment of the House of Lords, but there are some authorities of this Court of subsequent dates in which a contrary view has been held. This view finds support in the remarks of the late Chief Justice Muhammad Monir in his Principles and Digest on the Law of Evidence (Second Edition). At page E07, the learned author states that "it is for the Court to decide whether the claim of privilege should be allowed or not. But once the Court holds that the document is an unpublished official record relating to affairs of State which if it would not be in the public interest to disclose the question whether privilege should be claimed for it or not is entirely within the discretion of the head of the department". In support of this view the following authorities have been cited: - Mantubhai Mehta 1945 Bom.

122. Ijjat Ali Talukdar v. Emperor 1943 Cal.

539. Khawja Nazir Ahmad v. Emperor 1944 Lab.

434. Governor-General-in-Council v. Peer Muhammad Khuda Bux 1950 Pb.

228. Out of them it is sufficient to refer to the last Full Bench Authority of the Punjab (India) High Court. Khosla, J. who wrote the judgment in the case, after referring to a number of authorities of the various High Courts of the Indo-Pak. Sub- Continent and the judgment of their Lordships of the Judicial Committee in Robinson v. The State of South Australia (No. 2) (1931 A C 794-A I R 1931 P C 254), and of the House of Lords in Duncan and another v. Cammell Laird & Co. Ltd., concluded as follows: "The terms of section 162, Indian Evidence Act, and the English and Indian authorities dealing with the matter thus require that the form in which the objection should be taken is this. The head of the department must examine the documents and consider whether privilege should or should not be claimed in respect of them. He may then either appear in person before the Court to raise the objection or direct one of his subordinates to do so on his behalf with a certificate signed by him stating that he bad examined the documents and adding what is necessary. But where the latter course is followed the bead of the department will not be absolved from the obligation of appearing in person and satisfying the Court that the objection taken by him is valid. The Court may require him to give an affidavit or make a statement on oath and may put any questions to him for satisfying itself that the privilege has been validly claimed. The Court is, however, not entitled to inspect the documents nor put such questions to the head of the department or any other witness as would directly or indirectly reveal its contends. The scope of the enquiry that the Court can hold, therefore, is extremely limited but nevertheless within these narrow limits the Court has a right to hold an enquiry and pronounce upon the validity or otherwise of the objection. That this course is not impracticable will be obvious to anyone who considers the matter. The head of the department may, for instance, be asked whether the document relates to a purely commercial transaction such as in the case before us. The answer to this question will not in any way prove injurious to the public interest. The right of the Court to enquire into the nature of the document for which protection is sought and to require some indication of the nature of the injury to the state which would follow its production was recognised by their Lordships of the Privy Council in Robinson v. South Australia (No. 2) 1931 A C 704 ; A I R 1931 P C

254. This enquiry will not entail disclosure of the contents of the document and it cannot be said that such an enquiry would defeat the very objects of section 123, Indian Evidence Act. "The Court is entitled to prescribe in any particular case the manner in which the claim of privilege shall be made if the claim is to be allowed." It is precisely this type of enquiry which is contemplated by section 162, Evidence Act. At our request a blank form which is in use in the East Punjab was produced before us. I can see no objection to the claim for privilege being made on a form of this type provided it is supported by an affidavit sworn by the head of the depart ment." It will thus be seen that the view expressed by Khosla, J. instead of supporting the view that it is within the jurisdiction of the presiding officer of a Court to determine whether the document from which evidence is sought to be given relates to affairs of the State or not, actually militates against it. Duncan and another v. Cammell Laird & Co. Ltd., which is also cited with approval on the same page but, as will be seen later on, that judgment in fact does not support this view. Under section 162 of the Evidence Act, the Court has undoubtedly the right to examine a document summoned from a witness to determine the validity of any objection to its production but this power is circumscribed by the condition, "unless it refers to matters of state". The question, which requires determination in the case, is, therefore, not resolved by that section.

4. The other authorities relied upon by Mr. Hidayat Ali Taib may be examined at this stage. In Muhammad Hayat v. Crown (P L D 1951 F C 14), a petition for habeas corpus was moved for release of Abdul Wahid detenu in the High Court of Judicature at Lahore. The Senior Superintendent of Police, was examined as a witness who deposed that he might have issued orders to his subordinate officers to watch the movements of Abdul Wahid in order to prevent him from molesting women, but he would claim privileges against producing such communications if they existed in writing. Instead of determining whether the witness had the right to claim privilege the late A. M. Jan J., after opining that orders issued by the witness to watch the movements of a suspected person could not be covered by section 124 of the Evidence Act, held that if privilege was claimed without valid grounds the presumption which the Court may make under section 114 (e), Evidence Act, about his official acts having been regularly performed may not be made at all and the other presumption contained in clause (h) may be raised that information which the witness could not be compelled by law to disclose would have gone against him if he had disclosed it. In differing from this view, Sir Abdur Rashid, C. J. observed that if the witness was not entitled to claim privilege he must be compelled to answer the question. If he unjustifiably refuses to answer he should be compelled to do so and that a Court has to determine when the witness is in the witness-box as to whether he is not entitled to claim privilege with respect to certain communi cations or whether privilege cannot be claimed therefor, but if privilege is properly claimed, no hostile inference under illustration (h) of section 114 of the Evidence Act could be made against him. Since section 123 of the Evidence Act was not before their Lordships of the Federal Court, the above remarks of the learned Chief Justice do not apply to the proposition in hand. The learned counsel for the appellant placed reliance on the sentence "that the Court has to determine whether the witness is entitled to claim privilege with respect to certain communications or whether privilege cannot be claimed there for". But these observations are based on the provisions of section 124 which do not concern themselves with "affairs of State". It provides that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. That there is great difference between affairs of State and public interest cannot be disputed. The observations of Sir Abdur Rashid, C. J. on which reliance is placed by Mr. Hidayat Ali Taib, cannot, therefore, be extended to privilege claimed by the head of a department under section 123 of the Evidence Act. In interpreting the judgment it has to be borne in mind that the same learned Judge had expressed himself categorically in favour of the conclusive nature of the privilege which a head of the Department may claim in L M. Lall's case.

5. In Punjab v. Fazal Ahmad and another (P L D 1953 Lah. 308), the plaintiffs requested the Court to send for an application which had been made to the Sub-Registrar by one Muhammad Yusuf in his life-time alleging that he had never appeared before the Sub-Registrar at the time of the registration, together with the proceedings taken by the department on that application. The Inspector-General of Registration claimed privilege for the application and the proceedings on the ground that the documents called referred to affairs of State and were privileged from disclosure under section 123 of the Evidence Act. The Presiding Officer overruled the objection and feeling aggrieved by it the late Punjab Government moved a revision petition which was referred by Kayani, J. (as he then was) to a Division Bench composed of Muhammad Monir, C. J. and Muhammad Khurshid Zaman, J. In affirming the decision of the trial Court the Chief Justice observed as follows:- "It is true that ordinarily where the Court is not aware of the nature of contents of a document and privilege for it is claimed on the ground that it refers to affairs of State the Court will accept the word of the Head of the department and not order the production of the document, but where it is perfectly clear that the document cannot possibly refer to affairs of State, the Court has undoubted authority to order the production of the document. In the present case, if the document is, as described by the Inspector-General of Registration an application and the office notes on that application, it cannot possibly be said to relate to the affairs of State. The lower Court was, therefore, justified in ordering its production." In Ajiab Gut v. The Crown (P L D 1954 Pesh. 20), the Provincial Government sent the file of detenue's case to the Judicial Commissioner's Court hearing petition for his release under section 491, Criminal Procedure Code. The Chief Secretary to the Provincial Government gave evidence from departmental file in open Court, but at the end of his examination, stated that be was not prepared to give permission for the file to be shown to the defence counsel as it contained matters relating to affairs of State. The Crown counsel added that the Provincial Government had sent the file to take the Court in confidence, but did not want it to be shown to the defence counsel. On these facts the learned Judges observed as follows:- "It is paramount duty of a Court of Law to see that all parties arraigned before it have complete confidence in its impartiality. If one party is conceded the privilege of taking the Court into its confidence and of thus influencing the Court's opinion behind the back of the other party, then the feeling of confidence in the administration of its justice which is so essential to the social orders and security is completely frustrated. All parties to a case have an equal right to bring all facts to the notice of the Court, but they must do so in an open Court and in the presence of the other party and not in private. It is the duty of all the parties concerned to acquaint the Court with all the facts which are within their respective knowledge, and if the Court arrives at the conclusion that any party withholding or suppressing any evidence which it is not in law entitled to withhold, then it shall have to bear the con sequences entailed to it."

6. In The Crown v. Sultan Ahmad (P L D 1955 Bal. 1), Saker, J. said that in the case of documents relating to departmental proceedings against a clerk no privilege could be claimed by the Government. The words "affairs of State" were construed as highly secret and confidential matter, the disclosure of which might embarrass or harm the interests of the State.

7. In The Crown v. Abdul Ghani (P L D 1956 Lah. 300), Akhlaque Husain, J. in overruling an objection by the Inspector-General of Police to produce a certain document on the ground that it related to affairs of State expressed the following opinion :- "A duty is also cast upon the heads of the department of the State . . . . . to inspire confidence in Courts by their conduct that objection to the production of evidence, the non- production of which may cause the gravest consequences to a citizen, can never be made by any Government department unless it is necessary and unavoidable for the preservation of some vital public interest. Now that we have seen these two statements, we are convinced that the objection raised by the Inspector-General of Police obviously on the wrong and irresponsible advice of his subordinates was grossly Ill. conceived and mala fide. The sole object was to unjustly keep away a certain piece of evidence which it was feared was likely to help the accused. No State interest whatever was involved. In view of such attitude, the Government can hardly expect the Courts of Law to take the mere word of the head of a department as sufficient to uphold an objection, under section 123 of the Evidence Act."

8. In Raja Muhammad Afzal Khan v. The Federation of Pakistan (P L D 1957 Lah. 17), Kayani, C. J. in dealing with an official letter for which the Assistant Advocate-General claimed privilege, observed that the Bench had not insisted on the confidential document being produced before it, but they were not prepared to say that a document containing accusation against a public servant, which, he claims to have resulted in his discharge can be treated as "matters of State", particularly when the very question to be decided is whether the order of discharge had resulted from an allegation of misconduct.

9. Fearing that our decision on this question might go against the defendant and the case which is pending since 1954, might be remitted for retrial on issue No. 1 Sh. Maqbool Ahmad, the opposite counsel, conceded that the statement attributed to his client in issue No. 1 was made by him. In doing so, the learned counsel did not concede much, because the statement (Exh. P. 10) which is proved to have been made by the defendant to the Inspector of Schools, Multan Division, is also to the same effect. In view of it we could have refrained from entering into the legal argument raised by Mr. Hidayat Ali Taib on the construction of section 123 of the Evidence Act but since it involved a matter of general public importance, we have con sidered it advisable to examine the issue in some detail and give our own view on it. As mentioned above, the leading judgment on the subject is by the House of Lords in Duncan and another v. Cammell Laird & Co. Ltd. Towards the end of the judgment delivered in the case by Viscount Simon, L. C., it is stated as: "Although an objection validly taken to production, on the ground that this would be injurious to the public interest, is conclusive, it is important to remember that the decision ruling out such documents is the decision of the Judge. Thus, in the present case, the objection raised in the respondents' affidavit is properly expressed to be an objection to produce `except under the order of this Honourable Court'. It is the Judge who is in control of the trial, not the Executive, but the proper ruling for the Judge to give is as above expressed. In this connection, I do not think it is out of place to indicate the sort of grounds which would not afford to the Minister adequate justification for objecting to production. It is not a sufficient ground that the documents are `State documents' or 'official' or we marked `confidential'. It would not be a good ground that, if they were produced, the conse quences might involve the department or the Government in parliamentary discussion or in public criticism or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation. In a word, it is not enough that the Minister or the department does not want to have the documents produced. The Minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be demnified for example, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. When these conditions are satisfied and the Minister feels it is his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration. The present opinion is concerned only with the production of documents, but it seems to me that the same principle must also apply to the exclusion of verbal evidence which, if given, would jeopardise the interests of the community. Indeed, language, above quoted, of Lord Eldon, L. C., implies this. After all, the public interest is also the interest of every subject of realm, and while, in these exceptional cases, the private citizen, may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting the Interests of the country as a whole were not ranted as a prior obligation." The proper necessity for withholding evidence on the ground that it relates to affairs of State which might impinge on the rights of a citizen and deprive him of an immediate advantage cannot be better enunciated than has been done by the learned Lord Chancellor and we hope that the heads of the departments concerned in this country will bear them In mind while claiming privilege under section 123 of the Evidence Act to withhold an evidence from a Court of Law.

10. But it does not conclude the issue before us. After making the observations that "the decision ruling out such documents is the decision of the Judge" and "it is the Judge who is in control of the trial and not the Executive", the Lord Chancellor concluded by saying that the proper ruling for the Judge to give is as above expressed. What was that ruling? After describing the proper form in which objection should be taken to the provision of an evidence by a Minister, the Lord Chancellor proceeded to observe that when objection had been duly taken, the Judge should treat it as conclusive. The following judgments for and against this view were examined before coming to that conclusion. In Hennessy v. Wright (21 Q B D 515), Field, J. expressed a view that a Judge was entitled to examine the documents to the production of which a head of the department had objected and to ascertain whether the fear of injury to the public service was his real motive in objecting. In Asiatic Petroleum Company v. Anglo-Persian Oil Company (114 L T R 645) and Spigelmann v. Hocker ((1933) 150 L T R 256) Scrutoon J. and Macnaghten, J. had respectively looked at the documents, for which privilege was claimed. The contrary view was expressed in Beatson v. Skene ((1860) 2 L T R 381), from which the Lord Chancellor reproduced the following observations of Pollock, C. B. with approval:- "We are of opinion that, if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a Court of justice ; the question then arises, how is this to be determined. It is manifest that it must be determined either by the presiding Judge, or by the responsible servant of the Crown in whose custody the paper is. The Judge would be unable to determine it without ascertaining what the document was, and why the publication of it would be injurious to the public service an enquiry which cannot take place in private, and which taking place in public may do all the mischief which it is proposed to guard against. It appears to us, therefore, that the question whether the production of the document would be injurious to the public service must be determined, not by the Judge but by the head of the department having the custody of the paper; and if he is in attendance and states that in his opinion the production of the document would be injurious to the public service, we think the Judge ought not to compel the production of it. The administration of justice is only a part of the general conduct of the affairs of any State or nation, and we think is (with respect to the production or non-production of a State paper in a Court of Justice) subordinate to the general welfare of the community." The decision in Lords Commissioners of the Admiralty v. Aberdeen Steam Trawling and Fishing Company Ltd. (1909 S C 335), was also found to be in accord with the above view of Pollock C. B., subject to difference of procedure as applied fn Scotland. The following passage from the judgment of Lord President Dunedin at page 340 of the Report was reproduced with approval :- "It seems to me that if a public department comes forward and says that the production of the document is detrimental to the public service, it is a very strong step for the Court to overrule that statement by the department. The Lord Ordinary has thought that it is better that he should determine the question. I do not there agree with him, because the question of whether the publication of a document is or is not detri mental to the public service depends so much upon the various points of view from which it may be regarded, and I do not think that the Court is in possession of these various points of view. In other words, I think that, sitting as Judges without other assistance, we might think that something was innocuous, which the better informed officials of the public department might think was noxious. Hence I think the question is really one for the department, and not for your Lordships." The following observations of Lord Kinnear from the same judgment were also reproduced which embodied further reasons why privilege claimed on the ground that the document related to affairs of State was absolute :- "I agree that we cannot take out of the hands of the department the decision of what is or what is not detrimental to the public service. There are only two possible courses. We must either say that it is a good ground for objection, or we must overrule it altogether. I do not think that we should decide whether it would be detrimental to the public service or not ; and I agree with what your Lordships have said as to the position of the Court in reference to that question. We do not know the conditions under which the production of the document would or would not be injurious to the public service. I think it is not improbable that even if an officer of the department were examined as a witness and we should not get further forward, because the same reasons which induce the department to say that the report itself ought not to be produced might be thought to preclude the department from giving the explanations required. A depart ment of Government to which the exigencies of the public service are known as they cannot be known to the Court, must, in my judgment, determine a question of this kind for itself, and, therefore, I agree we ought not to grant the diligence."

11. The last case to be noticed in Duncan and another v. Cammell Laird & Co. Ltd., was, that of the Judicial Committee in Robinson v. The State of South Australia (No. 2). In It the decision of the Supreme Court of South Australia which had refused to order the inspection of the document which the Minister-in-charge of the department objected to produce on grounds of public policy, was reversed and the case remitted to the Supreme Court with the direction that it was one proper for the exercise of power of inspecting documents in order to determine whether their production would be prejudicial in the public welfare. In disagreeing with the decision of the Judicial Committee the learned Lord Chancellor observed: - "Their Lordships' conclusion was partly based on the Inter pretation of a rule of Court which was in the same terms as Order XXXI, rule 19-A, sub-rule (2) of the Rules of the English Supreme Court. This sub-rule provided : `where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court or a Judge to inspect the document for the purpose of deciding as to the validity of the claim of privilege'. In my opinion, the Privy Council was mistaken in regarding such a rule as having any application to the subject-matter. The doubt expressed on the point by Duparcq, L. J., in the present case, is fully justified. The withholding of documents, on the ground that their publication would be contrary to the public interest, is not properly to be regarded as a branch of the law of privilege connected with discovery. "Crown privilege" is for this reason not a happy expression. Privilege, in relation to discovery, is for the protection of the litigant and could be waived by him. But the rule that the interest of the State must not be put in jeopardy by producing documents, which would injure it, is a principle to be observed in administering justice, quite unconnected with the interests or claims of the particular parties in litigation, and indeed, is a rule on which the Judge should, if necessary, insist, even though no objection is taken at all."

12. On reviewing these leading authorities on the subject, the Lord Chancellor concluded as follows :- "In many cases there is a further reason why the Court should not ask to see the documents for where the Crown is a party to the litigation, this would amount to communicating with one party to the exclusion of the other, and it is a first principle of justice that the Judge should have no dealings on the matter in hand with one litigant save in the presence of and to the equal knowledge of the other." The above remarks leave no doubt in one's mind as to the meaning of the sentence in the third para. of the judgment that "an objection validly taken to production on the ground that this would be injurious to the public interest is conclusive." We are thus of the view that as held in I. M. Lall v. Secretary of State; Jan Muhammad v. P. N. Razdon and others and Emperor v. Ch. Raghunath Singh, if objection is taken in proper form by a head of department under section 123 of the Evidence Act to the production of an evidence on, the ground that it relates to affairs of State it is conclusive. The anxiety expressed in some of the judgments in which the opposite view has been taken Is with due respect misplaced. In the larger interest of the State the provision of section 123 of the Evidence Act must be given full effect irrespective of any possible injury to a private litigant. It is for the Legislature to safeguard against the mischief of a departmental head claiming privilege from producing an evidence mala fide, but the proper construction of section 123 cannot be departed from on account of such a consideration or the supposed impolicy of law. On this view, we find ourselves in accord with the decision of the trial Court refusing to summon evidence at the behest of the plaintiff from the police record for which the Inspector-General of Police had claimed privilege. Thus, there was no evidence in support of issue No. 1 and it was rightly answered in the negative.

13. Issues Nos. 2 and 7 were answered in the affirmative. Under issue No. 8, the learned trial Judge held that the defendant had a qualified privilege in making the statements embodied in issues Nos. 1 and

2. All other issues were found in the negative as a result of which the plaintiff's suit was dismissed. On appeal by the plaintiff, the learned District Judge has armed the above finding of the trial Judge with the result that so far as issues Nos. 3 to 6 and 9 are concerned they are concluded by findings of fact and we have no jurisdiction to interfere with them in a second appeal under section 100, Civil Procedure Code.

14. What remains to be determined is whether the defendant had a just cause to make the statements in question which were defamatory of the plaintiff per se. The plaintiff was employed as a headmaster of a school maintained by the Municipal Committee, Gojra. In that capacity, it was the duty of the defendant to control and superwise working of the school which included the conduct and behaviour of the members of its staff. Bye-laws 65 and 67 of the Gojra Municipal Committee have been exhibited on the record which provide that the Secretary shall be the Executive Officer of the Committee and shall control the whole of Municipal establishment and be responsible that all the subordinate officers perform their duties. It has been found by the Courts below that the plaintiff did not enjoy good reputation. Reference may be made in this behalf to Exhs. D. 7, D. 8, D. W. 6/I, D. 10 and D. 16, comprising of representations made by citizens of Gojra to Education Department, including the Minister for Education, and letters addressed by the Administrator of the Gojra Municipal Committee after it was superseded to the Inspector of Schools complaining about the bad reputation of the plaintiff. Against this background we have to judge whether the defendant had a qualified or absolute privilege while making the statements in question. One was made to a police officer in the course of an inquiry in the complaint lodged by Mst. Taleh Bibi and the other to the Inspector of Schools who held an inquiry into the complaints received by him against the plaintiff. The former statement is not before us, but on the commission made by Mr. Maqbool Ahmad we take it that in it he attributed the same misconduct to the plaintiff which he did in his statement before the Inspector of Schools,

15. On the evidence led by the parties both the Courts below have come to the conclusion that the defendant had illicit connection with Mst. Taleh Bibi, a ward servant in the local dispensary. It was also alleged that he had raped Mst. Anwari Begum, daughter of his own chaprasi. She got pregnant and delivered a child. In the Municipal records, Amanat Khan, brother of Mst. Anwari Begum, got the name of the plaintiff entered as father of the child. The plaintiff instituted a suit for defamation against Mst. Anwari Begum, her father Munshi Khan and brother Amanat Khan. It was dismissed against the first two but a decree for Rs. 10 was passed against the last-mentioned. In this connection, the plaintiff complained that the defendant had instigated Mst. Anwari Begum to make this vile accusation against him, but as seen above, issues Nos. 4 and 5, which embody this controversy, have been found in the negative. In these circumstances it cannot be said that the defendant had mala fide made the two state ments under reference to defame the plaintiff without any just cause. It is also to be borne in mind that the defendant did not voluntarily make these statements. On receiving large number of complaints the Inspector of Schools, Multan Division, held an enquiry and asked the defendant to give him a written statement about the allegation of misconduct attributed in them to the plaintiff. Copy of it has been placed on record and marked Exh. P.

10. In it, there are numerous allegations of misconduct against the plaintiff, and his counsel could not give any satisfactory reply as to why the plaintiff took objection to only two of them pertaining to Mst. Taleh Bibi and Mst. Anwari Begum and thereby conceded the correctness of other accusation of misconduct. What is more important in this context is that in making that statement the defendant was performing a duty as the Chief Executive Offcer of the Municipal Com mittee. In order to determine whether he had a just cause and could not be sued for libel on this account it is appropriate to produce the following observations of Lord Macnaghten in Jenoure v. Delemege (1891 A C 73 (PC)). " `The proper meaning of a privileged communication', as Parke, B., observes- Wright v. Woodgate (2 C M & R 577)-'Is only this : `that the occasion on which the communication was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact--that the defendant was actuated by motives of personal spite or ill-will, Independent of the occasion on which the communication was made.' There is no reason why any greater protection should be given to a communication made in answer to an Inquiry with reference to a servant's character than to any other communication made from a sense of duty, legal, moral or social. The privilege would be worth very little if a person making a communication on a privileged occasion were to be required, in the first place, and as a condition of immunity, to prove affirmatively that he honestly believed the statement to be true. In such a case bona fides is always to be presumed." The issue is more exhaustively discussed in M. G. Perera v. Andrew Vincent Peiris and another (P L D 1948 P C 280) by Lord Uthwatt in the following paragraphs: - "In Roman Dutch Law animus injuriandi is an essential element in proceedings for defamation. Where the words used are defamatory of the complainant, the burden of negativing animus injuriandi rests upon the defendant. The course of development of Roman Dutch Law in Ceylon has, put broadly, been to recognise as defences those matters which under the inapt name of privilege and the apt name of fair comment have in the course of the history of the common law come to be recognised as affording defence to proceedings for defamation. But it must be emphasised that those defences or, more accurately, the principles which underlie them, find their technical setting in Roman Dutch Law as matters relevant to negative animus injuriandi. In that setting they are perhaps capable of a wider scope than that accorded to them by the common law. Decisions under the common law are indeed of the greatest value in examplifying the principles but do not necessarily mark out rules under the Roman Dutch Law. The 'gladsome light of Roman juris prudence' once shone on the common law: repayment to the successor of the Roman Law should not take the form of obscuring one of its leading principles. "Their Lordships' attention has not been drawn to any case under the Roman Dutch Law or the common law which exactly covers the point at issue. Both systems accord privilege to fair reports of judicial proceedings and of proceedings in the nature of judicial proceedings and to fair reports of parliamentary proceedings, and much time might be spent in an inquiry whether the proceedings before the Commissioner fell within one or other of these categories. Their Lordships do not propose to enter upon that inquiry. They prefer to relate their conclusions to the wide general principle which underlies the defence of privilege fn all its aspects rather than to debate the question whether the case falls within same specific category. "The wide general principle was stated by their Lordships In Machitosh v. Dun 1908 A C 390 to be the `common con venience and welfare of society' or `the general interest of society' and other statements to much the same effect are to be found in Stuart v. Bell (1891) 2 Q B 341 and in earlier cases, most of which will be found collected in Mr. Spencer Dowar's valuable work on Actionable Defamation. In the case of reports of judicial and parliamentary proceedings the basis of the privilege is not the circumstance that the proceedings reported are judicial or parliamentary-viewed as Isolated facts-but that it is in the public Interest that all such proceedings should be fairly reported. As regards reports of judicial proceedings reference may be to Rex v. Wright 8 T R at p. 298 where the basis of the privilege is expressed to be 'the general advantage to the country in having these proceedings made public', and Devison v. Duncan (7 E & B at p. 231) where the phrase used is `the balance of public benefit from publicity'; while in Wason v. Walter (L R 4 Q B 73) the privilege accorded to fair reports of parliamentary pro ceedings was put on the same basis as the privilege accorded to fair reports of judicial proceedings-the requirements of the public interest."

16. Keeping in view the principle underlying privileged statements enunciated in the aforementioned two judgments it becomes obvious that in making the statement Exh. P. 10 to the Inspector of Schools the defendant was both performing C an official duty and acted out of a civic and moral sense which conferred an absolute immunity on him from being sued in tort. The same considerations apply to the second statement which the defendant made to the police officer who conducted enquiry into the complaint made by Mst. Taleh Bibi. In fact, in this case the defendant was performing a legal duty under the Code of Criminal Procedure.

17. In the result we affirm the findings of the Courts below on issue No. 8 and dismiss this appeal with costs. K. B. A. Appeal dismissed.