1992 PLP 2374 (MLD)

Plaintiff No.2 and Defendant No.1 are real brothers. Plaintiff is a private limited company in which plaintiff No.2 (or his group) is said to have 52.4% shares while Defendant No.1 (holds) 43.16% shares. As a result of some family arrangement, Defendant No.1 was to relinquish all his interests in "Plaintiff No.1 Company" but he did not and this resulted in a spate of litigation between the parties. Now on 30th April, 1992 a news‑item, appeared in the daily `Morning News' to the effect that Defendant No.1 acting as spokesman of the shareholders of a British company "Stahl (G.B) Ltd." had appealed to the Prime Minister for taking action against the said company for involvement in payment of kickbacks and commission and for "evading" foreign exchange to the extent of 29 Million rupees. According to the Plaintiff, the insinuation is towards Plaintiff No.1 who is agent of the said company in Pakistan. A similar news item appeared in the same paper on 12th May, 1991 (Annexures "A" and "B" to the plaint). According to the Plaintiff, this amounts to defamation and through this suit they seek compensation/damages from the defendants. Through this application under Order 39 Rules 1 and 2 the Plaintiffs seek a temporary injunction till the disposal of the suit restraining the defendants from further publishing any news‑item about their alleged malpractice.

2. Defendant No.3 M/s. News Publication Limited have contested this application and have filed counter‑affidavit of their Administrative Officer, M.Saeed Khalid in which defendant No.3 denied having any ill‑intentions towards the Plaintiffs in publishing the offending news‑item and explained that in the usual course of business it is the duty of the defendant No.2 (Associated Press of Pakistan) to pass on all the news relating to the Government to defendant No.3 and as such the two offending news‑items were also supplied to it by defendant No.2 which it had published as a matter of routine practical.

3. Mr. Muhammad Faridul Haq Advocate appearing for defendant No.1 has vehemently opposed this application. The gist of his arguments is that when the Plaintiffs have not sought any permanent injunction, no temporary injunction can be granted to them and in this regard he has relied upon the judgment reported as Marghoob Siddiqui v. Hamid Ahmed Khan and others (1974 SCMR 519). He further argued that any injunction in the terms in which it is sought by the Plaintiffs would be violative of Article 19 of the Constitution. On the other hand, learned counsel for the Plaintiffs claims that any repetition of the offending news‑item or any further news‑item on the same subject shall only complicate the situation and would be detrimental to the interests of the Plaintiffs and their reputation.

4. A perusal of the prayer‑clause of the Plaint shows that it is factually correct that the Plaintiffs have not sought any permanent injunction. All that they have sought, is a decree for compensation/damages and costs of the suit plus special costs. In view of this factual position and the law laid down in the judgment reported as 1974 SCMR 519 relied upon by defendant No.1 is directly attracted in which it is held that "In a suit where no permanent injunction is claimed, no question of granting ad interim injunction can possibly arise." This application is therefore, in my view, liable to dismissal on this ground.

5. I also agree with the learned counsel for defendant No.1 that even if the plaintiffs had sought in the suit permanent injunction, in which case the judgment reported as 1974 SCMR 519 would be inapplicable, even then the plaintiffs are not entitled to the grant of temporary injunction because grant of such injunction would be in violation of the accepted principles of the freedom of speech. On the face of it, the offending news‑item only shows that defendant No.1 acting as a representative of the share‑holders of a certain company, had appealed to the Prime Minister that company was involved‑in the payment of kickbacks and commission to plaintiff No.1 and for "evading" foreign exchange regulations and on that account action should be taken against him. It is yet to be seen whether there was any substance in the allegation of defendant No.1 and therefore, at the moment, it cannot be stated that the offending news‑items have defamed plaintiff No.1. Only if the defendants (specially defendant No.1) fails to make out a plausible case in support of the allegation against plaintiff No.1 can it be said that defendant No.1 is guilty of defaming plaintiff No.1. However, it appears to me that any restraint placed on the defendants in this regard may very well go against the public interest and welfare inasmuch as the public would be deprived of having upto date knowledge in the progress of the enquiry set in motion by defendant No.1. Learned counsel for defendant No.1 has also referred me to Article 19 of the Constitution of the country which guaranteed freedom of speech and expression and the freedom of press subject to reasonable restrictions in certain respects given in the same Article and I am inclined to agree with the learned counsel that a temporary injunction in terms of this application (CMA No.3310/91) would go against the spirit of this Article

19. Learned counsel for Defendant No.1 has relied on some other reported judgments which are not in respect of any case of defamation but pertain to the freedom of press. The first judgment is Begum Zaibunnisa Hameedullah Editor and Publisher of "The Mirror", Karachi v. Pakistan through Secretary, Ministry of Interior PLD 1958 SC (Pak)

25. In this reported case the facts were that an order was passed under section 12 of Security of Pakistan Act, 19522prohibiting for a period of six months the publication of "The Mirror" and this action of the Government was challenged by the Editor and Publisher of the Magazine. The action was taken on the alleged defamatory matter published by the said Magazine and it was held by the Supreme Court that the action of the Government was in complete disregard of the Constitutional right of a citizen in respect of freedom of speech and expression. Another judgment is in the case of Muhammad Mehmooduz Zaman v. District Magistrate, Lahore PLD 1958 Lah.

651. This was a case in which Newspaper "The Patriot" was called upon under section 7 of the Press (Emergency Powers) Act to deposit security in the sum of Rs.1,

000. This judgment was passed in the light of the then current Constitution of the country whose Article 8 guaranteed the right of expression and late Mr. Justice Kayani observed that: "When Article 8 requires that every citizen shall have the right to express himself freely, it does not mean that he can be restrained before he has actually expressed himself." This would indicate that no one can be restrained from publishing any thing even under the Press (Emergency Powers) Act of 1931. Learned counsel for defendant No.1 also referred to Article 22 of the Law of Defamation and Malicious Prosecution in which the following extract is quoted from the judgment in the case of Fraser v. Evans 1969 IQV 349; "The Court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years ever since. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the unconstitutional Tribunal and not for the Judge. But a better reason is the importance in the public interest that the truth should be out. As the Court said in that case: "The right of free speech is one which it is for the public interest that individual should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done:" There is no wrong done if it is true, or if it is fair comment or a matter of public interest. The Court will not prejudice the issue by granting an injunction in advance of publication:" The above observations in the case of Fraser v. Evans also indicate that the plaintiffs are not entitled to temporary injunction in terms of this application because so far it is not known whether the allegation made by Defendant No.1 is false. If it turns to be true, grant of temporary injunction will amount to suppression of facts of public interest from the public.

7. For the above‑noted reasons I am of the considered view that under the circumstances of the case the plaintiffs are not entitled to an injunction pertaining to the alleged criminal act of defendant No.1. It goes without saying that whatever defendants publish or cause to be published they do so at their own risk as to costs and consequences specially in view of the fact that they know that such publication is likely to adversely affect the reputation of plaintiff No. I. I would therefore dismiss CMA No. 3310/92. A.A/L1‑134/K Application dismissed.