PLJ 2022 Lahore 683 (DB)
Defamation Ordinance, 2002--
----S. 3/4/5/8/9/15--Publication of Derogatory words--Suit decreed--appeal dismissal of--Appellants are Chief Editor and Editor of newspaper who published derogatory words--Defamation is publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of the society--No material is available on record which suggested that they probed into or any investigation was conducted by them to meet with requirements and parameters of an ideal journalism--The appellants were unable to establish factual correctness of the material published, malice on the publisher’s part--Notice must be sent through registered post--Admission made by Appellant No.1 in his cross-examination that a notice was sent to him but he did not receive it personally and also in view of statement of (P.W.3), copy of legal notice original receipts of registered post (Exh.P.2 to Exh.P.4), respondent proved that he fulfilled requirement of Section 8 of Ordinance, 2002.Trial Court has rightly decreed suit.
[Pp. 684, 686, 688, 691 & 692] A, B, C, D, E, F
PLD 2021 SC 564; PLD 2015 SC 42; 2020 CLC 618;
2014 MLD 1199 ref.
Ch. Muhammad Zubair, Advocate alongwith Appellants.
Respondent in person alongwith M/s. Sikandar Ali & Ch. Zaheer Hussain Minhas, Advocate for Respondent.
Date of hearing 19.5.2022.
PLJ 2022 Lahore 683 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Muhammad Masood Jahangir and Ahmad Nadeem Arshad, JJ.
CHIEF EDITOR MUHAMMAD RIAZ ANJUM, etc.--Appellants
versus
Dr. MOHAMMAD SHAHBAZ--Respondent
R.F.A. No. 140 of 2012, decided on 19.5.2022.
Judgment
Ahmad Nadeem Arshad, J.--This Regular First Appeal is preferred under Section 15 of the Defamation Ordinance, 2002, against judgment/decree dated 06.03.2012 whereby respondent’s suit for recovery of Rs. 1,00,00,000/- was decreed by the learned Trial Court to the extent of of Rs. 5,00,000/-only.
He adds that the above named newspaper is circulated throughout the district Chakwal and other districts and the publication of derogatory words referred supra against him lowered his esteem in his family/society due to which he suffered loss to his health as well as status, hence, prayed for recovery of Rs. 1,00,00,000/-as damages. On the contrary, appellants contested the suit by filing written statement in contrast. Although, they prayed for dismissal of suit, yet neither they denied to be Chief Editor and Editor of the newspaper nor refused the publication of said news by them with a stance that the news was based on facts as regarding the occurrence an inquiry was held whereby respondent/Doctor was found guilty.
3. Learned Trial Court, out of divergent pleadings of the parties, framed following issues:
1. Whether plaintiff has no cause of action? OPD
2. Whether the suit is hit by provisions of Order 7 Rule 11, CPC? OPD
3. Whether the Defendants being Editor and Chief Editor of weekly Press Forum Chakwal published in their newspaper defamatory news against the plaintiff as alleged in the plaint injuring his reputation? OPP
4. Whether the plaintiff is entitled to recover Rs. 1,00,00,000/-as damages from the Defendant under Section 9 of Defamation Ordinance 2002? OPP
5. Relief.
Evidence of the parties was invited. After recording the same, pro & contra, learned Trial Court decreed the suit of respondent vide judgment & decree dated 06.03.2012. (hereinafter referred to as impugned judgment & decree). Feeling aggrieved, appellants preferred instant appeal.
4. Learned counsel for the appellant contends that impugned judgment & decree is against the law/facts as well as result of mis-reading and non-reading of evidence available on record; that learned Trial Court failed to consider the report of police station Chakwal; that impugned judgment/decree has been passed in a fanciful and capricious manner which is not sustainable under the law; that the respondent failed to prove sending of notice which is mandatory requirement of law. In last, prayed for acceptance of appeal in hand and dismissal of respondent’s suit.
5. Conversely, learned counsel for the respondent maintains that impugned judgment/decree has been passed in accordance with law. He adds that learned Trial Court has already decreed a meager amount and this Court while acknowledging it previously directed them to come prepare on the question that why amount given in the impugned judgment may not be enhanced. Finally prayed for dismissal of appeal.
6. We have heard learned counsel for the parties at length and perused the record with their able assistance.
a. the imputation must be defamatory;
b. it must identify or refer to the claimant;
c. it must be published/communicated to at least one person other than the claimant.
9. Defamation is defined under Section 03 of the Ordinance, 2002, which reads as under:
“(1) Any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation.
(2) Defamation is of two forms, namely:--
(i) Slander; and
(ii) Libel.
(3) Any false oral statement or representation that amounts to defamation shall be actionable as slander.
(4) Any false written, documentary or visual statement or representation made either by ordinary form or expression or by electronic or other modern means of devices that amounts to defamation shall be actionable as libel.”
10. The main ingredient constituting defamation is publication of defamatory statement in widely circulated newspaper or spoken in a large gathering. For constituting defamation:-
(a) The allegations levelled against the plaintiff should be false, baseless and unfounded;
(b) The wordings used and the allegations levelled, in on the face of it, should have been defamatory derogatory nature;
(c) Such allegations should have been published in widely circulated newspapers or spoken in a large gathering;
(d) The said publications made or wordings used should have been with malice without any reasonable cause and justification;
(e) The allegations should have been directly attributed to the plaintiff by specifically mentioning his name;
11. Publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed as defined in section 04 of the Ordinance, 2002.
12. Oral as well as documentary evidence produced by the respondent is in-line with his pleadings and proved on record that the derogatory words used “بد تمیز، بدنام، بدمعاش” for him damaged his reputation in the society. Although, PWs were cross-examined at length, but nothing in favour of appellants came on record.
13. The defences available to the appellants provided in section 05 of the Ordinance, 2002, as under:
In defamation proceedings a person has a defence if he shows that--
a) he was not the author, editor, publisher or printer of the statement complained of;
b) the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith;
c) it is based on truth and was made for the public good;
d) assent was given for the publication by the plaintiff;
e) offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;
f) an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;
g) the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and
h) the matter is converted by absolute or qualified privilege.
15. Damages are provided as a remedy under Section 9 of the Ordinance, 2002, which are reproduced hereinunder for convenience:
“Where defamation shall be proved to have occurred, the Court may pass order directing the defendant to tender an apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs. 50,000/-(Rupees fifty thousands) and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court
[Provided that in case of the originator the minimum compensatory damages as general damages shall be three hundred thousand rupees.]
16. It appears that damages are defined under three headings; 1) compensatory, 2) general & 3) aggravated. Compensatory damages themselves can be divided into general and special. If plaintiff, who wins a defamation action is entitled to an award of general damages, compensating him for the injury to his reputation and feelings by being proportionate to the damage which the plaintiff has suffered and nothing greater than what is necessary to provide adequate compensation and to re-establish his reputation. Now the question arises is to weigh the quantum of damages for such loss caused to him by such wrongful act. General damages normally pertain to mental torture and agony sustained through derogatory/defamatory statement. Since, there is no yardstick to gage such damages in monitory terms, therefore, while assessing damages on account of such inconvenience, the Courts apply a rule of thumb by exercising its inherent jurisdiction for granting general damages on a case to case basis, whereas, special damages are defined as the actual but not necessarily the result of the injury complained of. While awarding special damages, it is to be kept in mind that the person claiming special damages has to prove each item of loss with reference to the evidence brought on record. This may also include out of pocket expenses and loss of earnings incurred down to the date of trial and is generally capable of substantially exact calculation. The burden in such situation, like in all cases, is on the shoulder of the plaintiff to prove the magnitude of such suffering. The august Supreme Court of Pakistan in its esteemed judgment titled “Munawar Ahmed, Chief Editor Daily Sama and another v. Muhammad Ashraf and others” (PLD 2021 Supreme Court 564) while dealing with same situation observed as under:
“Since such suffering could not be converted or gauged in monitory terms, therefore, the Court has to apply rule of thumb. The other aspect which need to be kept in mind by the Courts while awarding general damages on account of mental torture/nervous shock is that damages for such suffering are purely compensatory to vindicate the honor or esteem of the sufferer, therefore, such damage should not be exemplary or punitive as the sufferer should not be allowed to make profit of his reputation.”
17. The defamation of any person or citizen through spoken or written words or any other means of communication lowers the dignity of a man fully guaranteed by the Constitution, if anyone commits an act of malice by defaming any person, would be guilty under the Constitution. No one can plead the unbridled right of expression. Who would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same has to be dealt with under the law. The august Supreme Court of Pakistan in its judgment cited as “Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan” (PLD 2015 Supreme Court 42) elaborated it in the following words:
“10. Under the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, reputation of a person has received the highest protection in Article 4(2)(a). Further under Article 14 the dignity of man and, subject to law, the privacy of home, shall be inviolable right of each and every citizen. The defamation of any person or citizen through spoken or written words or any other means of communication lowers the dignity of a man fully guaranteed by the Constitution, thus, not only is it the constitutional obligation of the State but all the citizens and persons living within the State of Pakistan to respect and show regard to dignity of every person and citizen of Pakistan otherwise if anyone commits an act of malice by defaming any person, would be guilty under the Constitution and would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law.
11. No lenient treatment shall be shown to anyone in this regard nor anyone can plead the unbridled right of expression and right to have access to the information when the subject matter is disgraced, his/her dignity brought to almost naught because the rights with regard to expression and access to information are regulated by law, rules and regulations under which the license is granted under the Press and Publication laws.
12. It is true that media as a whole is playing a vital role in reshaping our political and social life, creating awareness amongst the masses about their rights and responsibilities as well as against corruption. While performing such noble duties, the media is equally required like any other citizen to abide by the provisions of the Constitution, the code of ethics, the rules and regulations and not to resort to mud-slinging by violating standards of true professional ethics as irresponsible and derogatory reporting of news would diminish its own credibility in the eyes of readers and viewers.”
18. While describing numerous “Aayats” and “Hadiath” on the subject, Peshawar High Court in a judgment reported as “Zafar Hijazi, Chief Editor, Daily Muhasib Abbottabad and 4 others v. Muhammad Ayaz Mushwani (2020 CLC 618) observed that being Muslim we are under legal obligation to adhere to the commands of Allah Almighty and “Sunnah” of our Holy Prophet Hazrat Muhammad (peace be upon him) whereby it is laid down that we should avoid backbiting and slander and Islam strictly prohibit reporting of libelous materials. Even it prohibits reporting bad deeds of a person considering it a backbiting, what to say about slander.
20. The learned counsel for the appellants argued that no legal notices were served on the appellant’s as the respondent failed to prove issuance of legal notice and thus mandatory provision of Section 8 of the Ordinance, 2002, has not been complied with.
21. Section 8 provides that before initiating proceedings under the Ordinance ibid, one has to give fourteen days’ notice to the wrong doer within two months of the publication of the defamatory material or its knowledge and if there is no response by the other side, then the suit for defamation could be filed under the law. Section 8 of the Ordinance, 2002, is reproduced for ready reference as under:
“No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to his notice or knowledge, given to the defendant, fourteen days’ notice in writing of his intention to bring an action, specifying the defamatory matter complained of.”
24. The epitome of above discussion is that this appeal is without any force/substance, hence, the same is dismissed accordingly. No order as to cost.
(K.Q.B.) Appeal dismissed
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