P L D 1960 (W (PLP)

5. Upon the pleadings the following issues were framed :‑ " (1) Whether the matter published by the defendant on cover page of the issue of " INSURANCE NEWS " No. 12 of Volume III, for December 1954, actually printed and published in May 1955, and in the Editorial of the same journal at page 3 is defamatory and libellous ? (2) Whether the publication in question was malicious ? (3) Whether as a result of the publication of the said malicious and defamatory imputations the plaintiff's reputation ' was adversely affected and the business prospects and prestige of the company lowered in the eyes of its constituents and clients and general public ? (4) Whether the matter published by the defendant amounted to fair comment and the defendant exercised qualified privilege in giving publicity to the same ? (5) Is the plaintiff entitled to the damages claimed and to what extent ? (5‑A) Whether whatever has been published is true ? (6) General ".

6. Apart from the documentary evidence the oral evidence on the side of the plaintiff consists of the evidence of Mr. Wisaluddin, the Regional Director of the plaintiff company, and Mr. Lofthouse, the Actuary of the company. On the other side the defendant has given evidence in support of his stand.

7. In order to found an action for libel it must be proved that the statement complained of is : (1) false ; (2) in writing (3) defamatory and (4) published. That the offending material was in writing and that it was published is not disputed. With regard to its falsity the law is that if the matter is defamatory the falsity of it is presumed until it is proved to be true. Words are prima facie defamatory when their natural, obvious and primary sense is defamatory, but there may be words and expressions which are prima facie innocent but in their secondary and latent meaning they may be defamatory. There may be oblique references, suggestions and insinuations which may be no less defamatory merely because they are couched in languages which prima facie are innocent. Apart from the allegations of fact there may be comments and these may themselves become defamatory if they do not come within the description of a fair comment on a matter of public interest. And where the imputation is false or the comment is not fair and bona fide they will be deemed to be malicious the maliciousness in law consisting of doing a thing without just cause for excuse. A matter will be deemed to be defamatory if it expos s the plaintiff to hatred, contempt, ridicule or tends to injure him in his profession or trade.

8. I shall now proceed to examine whether the offending publication amounts to libel in the light of the principle stated above. Before I deal with the factual statement published on the front page of this journal and in the editorial note. It appears to me to a matter of paramount importance for a correct decision of this case to refer to the over all effect which the publication is calculated to produce upon the policy holders and the general public. To begin with one notice the headline of the publication on the title page which starts by saying " Awake ! Arise ! O you policy‑holders ". It does not require any comment from me to show the purpose of this headline or the effect which it was calculated to create. Obviously it was intended to tell the policy‑holders of the plaintiff company that a most alarming situation existed in the affairs of the company seriously endangering the interest of the policy holders whose policies and premiums were not secure with this company. It must be remembered that an insurance company like a bank must in order to have any chance of business must inspire confidence in its clients with regard to its stability and soundness. People who take out policies on their lives are therefore bound to take the most serious notice of any suggestion or insinuation with regard to the instability or inefficiency in the affairs of the insurance company with which they are insured or with which they intend to insure.

9. There are four items on the title page each one of which begins with the questions '` Do you know ? " printed in bold letters in red ink. In the first item it is said that a company registered in any one of the States cannot solicit business in other States without a fresh registration and security deposit in each and every State in which the company intends to function. This statement is factually inaccurate. The defendant in his evidence has stated that this statement was based upon what he read at pages 636, 637 and 671 of the Encyclopaedia of Insurance 1948 Edition. The only relevant statement however appears at page 637 under the heading " DEPOSITS, SPECIAL, REQUIRED BY STATES ", which goes on to say " A few states require special deposits from fire insurance companies. Several States, however, require deposits by other State companies if they have not made deposits in their home States, and by companies of other countries, if they have not made deposits in some other State of the United States ". Surely this does not support the assertion made by the defendant in item No. 1 of the offending article.

10. Item No. 2 says that the American Life Insurance Company is registered only in the State of Delaware which has an area of 2057 square miles with a population of 3,38,

000. This statement is factually correct but Mr. Wisaluddin has stated that the State of Delaware is the most important State in the United States for the purposes of incorporation of companies because it allows the companies to do business abroad. He further went on to say that 32 per cent. of the total companies incorporated in the U. S. A. are incorporated in this State. Of them he mentioned Messrs General Motors and Dupont & Co. The important point is that by the statement in items No. 1 and 2 of this article and the manner in which it is written the impression intended to be given to the policy holders was that the American Life Insurance Company was not really American Company in the sense that it had freedom to do business in the whole of America and that it was incor porated in a tiny unimportant place. The third item tells the policy‑holders that this company does not solicit business even in the only State of Delaware where it has been incorporated and registered as an insurer. This statement is factually correct, but it has to be read in its context in which it appears. The fourth item is far more damaging. It informs the policy‑holders that the former name of this company was the Asia Life Insurance Company and that this company also had no business in the U. S. A. the country of its incorporation. And then comes the insinuation and the innuendo in bold print in red ink "Can you guess why this name has been changed after thirty years ". The insinuation is clear and unmistakable that the company has had a dubious past and therefore it had to change its .name. Reading the whole piece under the main headline " Awake ! Arise ! etc. I have no doubt in my mind that this was calculated to create an alarm and panic and loss of confidence amongst the policy‑holders and those who might be the prospective clients of the company ; that it was intended to injure the company in its prestige and reputation ; that the statements are either incorrect or presented in a manner which suggest a latent meaning and the headline and the last question of the change of name make the front‑page article of this journal clearly and grossly defamatory.

11. I shall now deal with the editorial note which appears in the inside of this journal at pages 3, 4 and

5. Here again the heading of this article is intended to bring the company into disrepute and the whole article must be read with reference to the caption given to it. The heading in bold letters is "All that glitters is not gold ". The first para. of this article makes an apology for the fact that though this issue of the journal was intended for the month of December it was actually being published in May, but it goes on to say that during this long period that the editor had not been inactive and his investigation had disclosed some startling facts and though he reserves a discussion in detail of those disclosures for a subsequent issue yet a strong appeal is made to the insuring public, policy‑holders, the insurance leaders and the insurance agents to read, to think and to act before it is too late. Para. 2 then goes to recount the achievement of the editor in writing against another insurance company named INGOSSTRAKH, the registration of‑which as it appears from the evidence, was ultimately cancelled by the Government. The rest of the article consisting in paras. 3, 4, 5, 6 and 7 is devoting to pointing out various alleged defects, irregularities and mis‑statements and violations of Insurance Act by the plaintiff company. I propose to deal with them as briefly as possible.

12. Para. 3 seeks to disclose to the policy‑holders that the American Life Insurance Company which claims to be incorpo rated in the U: S. A. in 1921 is not really so incorporated because the editor has not been able to find this company mentioned in the Encyclopaedia of Insurance in the United States. It then points out various defects in the forms of the company e.g., that it does not bear any address of the company either of Pakistan or U. S. A. ; that it does not mention the address of the assured in the body of the policy and that it does not mention the place and date of the signing of the policy. It then goes on to say that all this "involves questions relating to the Law of Contract throwing doubts on the validity of the policy issued since 1952 with the above mentioned legal irregularities ". Para. 4 deals with the publication of the plaintiff company and para. 5 points out that in the Pakistan Insurance Year Book for the years 1953 and 1954 the total business figures are left unfilled. Para. 6 says that the prospectus issued by the Company is not in accordance with the rules of Insurance Act and para. 7 ends with a typical statement as one would expect in such an article saying that the editor has addressed several letters to the Controller of Insurance and the plaintiff company, whose reply he is anxiously awaiting and on receiving which, he would place before the readers the whole affair to judge for themselves. I have examined the policies issued by the plaintiff company and the blank forms produced both by the plaintiff and the defendant. These are Exs. 14, 14‑A, 15, 16, 17 and 18. 1 am not going to enter into the detailed discussion of the various points in the nature of tweedledum tweedledee which the defendant claims to be defects in the policies of the company. I have examined these policies and both the earlier and the later forms, and I am satisfied that they provide all the relevant information and the requirements of a policy. Likewise the statement that the Pakistan Year Book does not contain the figure of business of this company for the years 1953‑54 is of no particular consequence because this company is not shown as a defaulter in respect of the submission of necessary information and if these figures are not published in the year book it may be a slip because Mr. Wisaluddin has stated on oath that these figures had been failed with the Controller of Insurance.

13. It is plain that this editorial note by pointing out what the editor considered to be defects was calculated to give an impression to the policy‑holders and to the public that the affairs of this company were in a mess and that even the forms upon which the policies were issued were defective so that the people who took out policies from this company might find it difficult to enforce their claims if the occasion for it arose. Apart from the fact that this article contained mis‑statements and had sup pressed the truth, it did not lie in the mouth of the defendant to say all that he said in this article or on the title page. As I shall presently show he had sufficient knowledge about this company and had not the slightest doubt about its stability or soundness. It becomes necessary for this purpose to refer to certain previous events which would give a proper background against which one could judge the nature of these imputations and the fairness or otherwise of the comments and headlines in the offending articles.

14. In the issue of this journal of January 1954 Exh. 44, we find on the inside page of the cover a prominent advertise ment of this company which gives not merely the fact that the head office for Pakistan of this company is situated at Nadir House, top floor McLeod Road, Karachi but it also gives the full address of the branch offices and the names of the agency units. Then in the April‑August 1954 issue of this journal, Exh. 43 appears the same advertisement on the title page of this journal as given in Exh.

44. In fact, the advertisement is so boldly printed that one might at first sight think that this was a publication of American Life Insurance Company itself. Then in the September 1954 issue of this journal, Exh. 26, we find' at page 26 under the heading "who is who" a short life history of Mr. C. V. Star, who is the founder of the plaintiff company ana is now a director. In this article the great achievements of Mr. C. V. Star are published by this editor without any reserva tion. I would only quote the opening part of this piece which deals with the plaintiff company "Who is who, Mr. C. V. Star, the head of the American International Insurance groups, has recently visited Karachi. Among his world‑wide insurance interests there are two in Pakistan. He is the founder and a Director of the American Life Insurance Company, established in 1921. It has been working in Pakistan since 1952 and already has done an outstanding business here. The company maintains a complete Head Office for Pakistan in Karachi with Branch Offices in Lahore and Dacca. He is also the founder of the American International Under writers which, in Pakistan, has offices in Karachi, Lahore, Chittagong and Dacca." But this is not all. The most important admission made by the defendant himself was in the witness box wherein he said "When I published this article Exh. 26‑A the American Life Insurance Company was the best insurance company and perhaps it is still the best." How then could it lie in the mouth of the defendant to say all that he has said in the offending articles with any show of justification or fairness. I have dealt with these previous publica tions to show that the defendant knew all about this company and its place of incorporation and its head office in Pakistan and also about its affairs and stability, and therefore the headlines in the offending articles and the comments made therein are neither fair nor bona fide. Comment in order to be fair must be based upon facts and if the defendant cannot show that his comments contain no mis‑statements of fact he cannot prove a defence of fair, comment. The word `fair' embraces the meaning of honest and also of relevancy and both these elements are wanting in this case.

15. I shall now deal with the question whether this publica tion was malicious and whether the defendant is entitled to claim qualified privilege in law. If a thing is done without just cause or excuse it is deemed to be malicious, but in this case the plaintiff has also attempted to prove malice in fact. I may first refer to Exh. 11 which is the defendant's letter dated 5th November 1954 in which he had asked for advertisement from the plaintiff "to help him to square up the financial difficulties" and the plaintiff's reply dated 8th November 1954, Exh. 12, whereby it has declined to accede to the request. Then there are certain letters which passed between the parties between 26th of April and 4th of May 1955. These are significant because Exh. 8 was published in May and Mr. Sohail stated at the bar that it was published in early May. The first of these letters is dated 26th April 1955, Exh. 52, which is' addressed by the defendant to Mr. Hagander of the plaintiff company. In this letter the defendant is asking for certain information about the affairs of the plaintiff company both in Pakistan and in the United States of America. He wrote another letter to Mr. Hagander on 29th April, Exh. 51, in which he has asked the names and de3ignation of the officers of the company at Karachi who were authorised to sign the policy contracts. Both these letters were replied to by Mr. Hagander on 4th May 1955. These are Exhs. 46 and

47. In Exh. 46 it has been stated by Mr. Hagander, the Vice‑President of the company, that he would be happy to provide the defendant with whatever information he was desirous of having and suggested that this could best be done on his next visit when a detailed explanation could be given to him in a personal discussion which would be more satisfactory. In the other letter Exh. 47 which was in reply to Exh. 52, Mr. Hagander states that all the information which had been asked for by the defendant a month ago has been furnished to him and with regard to the information asked for in the third paragraph he was informed that it could be had from the relevant office of the Government. Then there was a reference to the visit of the President of the company to Pakistan about which the defendant had expressed his regret for not having been able to meet him. These letters were couched in cordial terms and yet it was about this time that the defendant was preparing to publish the offending article which was definitely calculated to bring the company in utter disrepute. The suggestion that the offending articles were written and published under a well‑organised plan aimed at ruining the business of the plaintiff is supported by the fact that soon after the publication of these articles by the defendant in his journal, as number of other papers published most scandulous and obnoxious articles against the company and quoted the "Insurance News" of the defendant. An Urdu paper actually brought out a supplement which was all about this company and its alleged fraud which it was said to be practising upon the unsuspecting public. These other publications are Exhs. 19, 20, 21, 22, 23, 24 and

25. All this was more like a blitz upon the plaintiff company rather than a fair and a bona fide comment upon ,? matter of public interest. ;1 however do not accept that part of the plaintiff's case that the defendant had approached Mr. Wisal uddin of the plaintiff company in April asking for money and that it was on Mr. Wisaluddin's refusal that he came out with these articles. Firstly, the cordial letters. Exhs. 46 and 47, from Mr. Hagander are inconsistent with this version and secondly, if the defendant was determined to vilify the Company it would be unlikely for him to go to Mr. Wisaluddin and ask for money. That may be Mr. Wisaluddin's inference, but I do not think that the defendant went to him in April and asked for hush money, which is the suggestion made on behalf of the plaintiff. Be that, however, as it may, this does not affect the case in any manner because of the finding that I have reached that apart from the mis statements of facts m the offending articles the headlines and the comments were grossly libellous and had been published without any justification.

16. Mr. Sohail did not press the question of qualified privilege and rightly so, because no occasion of a qualified privilege arose m this case. Apart from the question whether the defendant had a duty to publish an article of this character, of which I am very doubtful, the fact remains that the comments and the innuendoes were highly scandalous and had been made probably with an ulterior motive. The words of the libel and the circum stances attending its publication themselves afford evidence o malice in fact apart from the fact that the plaintiff had asked for t financial assistance in the shape of advertisements which had been refused by the plaintiff.

17. In view of the conclusions that I have reached my finding on issues 1 and 2 is in the affirmative and on issue No. 4 in the negative.

18. With regard to the issues Nos. 3 and 5 there is the evidence of the Actuary of the Company Mr. Lofthouse and Mr. Wisaluddin to the effect that the libellous publication in Exh. 8 adversely affected the business prospect and prestige of the company. There is also the evidence of P. W. 3 Mr. S. M. Rafiq, was had found several Naval Officers in the Headquarter who were most worried by this publication and were feeling apprehensive about their premiums. I have no reason to disbelieve all this evidence particularly because the nature of the publication itself was such that it was bound to cause alarm and panic amongst the policy‑holders and was calculated to destroy the prospect of business of the company. My finding on Issues Nos. 3 and 5 is therefore in the affirmative.

19. Issue No. 5‑A has been loosely framed but from what I have said about I find that the two articles contain substantial mis‑statement of facts and more than that the comments and the innuendoes were false and malicious.

20. On the question of the amount of damages I have thought for long. The plaintiff has not claimed any special damages and I think the ends of justice will be met by granting to the plaintiff a sum of Rs. 5,000 by way of general damages. I have also taken Into consideration the fact that the defendant was prosecuted in the Criminal Court under section 500, P. P. C. 444 was convicted and sentenced to a fine of Rs. 1,000 as would appear from a certified copy of the judgment of the Criminal Court Exh. 30.

21. I, therefore, decree the plaintiff's claim for damages for Rs. 5,003 against the defendant with proportionate costs. I also grant perpetual injunction against the defendant under section 54 of the Specific Relief Act restraining him from publishing any defamatory matter against the plaintiff company. The plaintiff will bear his own costs. A. H. Order accordingly.