Sunday, 31 May 2015

Latest Judgment in a Defamation Case

P L D 2015 Supreme Court 42
Present: Jawwad S. Khawaja, Mushir Alam and Dost Muhammad Khan, JJ
LIBERTY PAPERS LTD: and others---Appellants
Versus
HUMAN RIGHTS COMMISSION OF PAKISTAN---Respondent
Civil Appeal No.302 of 2006, decided on 17th September, 2014.
(On appeal from the judgment dated 23-1-2006, passed by the High Court of Balochistan, Quetta in R.F.A. No.62 of 2002)
(a) Defamation Ordinance (LVI of 2002)---
----S. 3---Civil Procedure Code (V of 1908), Ss. 19 & 20-Defamatory and libelous material published in a newspaper-Place of instituting suit for defamation-Option for plaintiff-Jurisdiction of courts in defamation cases lay both where the newspaper was published and where it was circulated, with the option to be used by the plaintiff-- Cause of action needed to arise only in part in a jurisdiction for it to be an open option for the plaintiff---Significant readership and distribution of newspaper in a city qualified as 'cause of action', in part at least
Altaf Gauhar v. Wajid Shamsul Hasan and another PLD 1981 Kar. 515; Mazhar Valjee v. Sher Afghan Khan Niazi 2004 YLR 2525; Messrs Rahe Manzil Transport and others v. M. Ameen PLD 1963 Kar. 182; Abdul Hakim and others v. Saad Ullah Khan PLD 1970 SC 63 and Province of Punjab through District Collector Mianwali and others v. Mahmood ul Hassan Khan 2007 SCMR 933 ref.
(b) Defamation Ordinance (LVI of 2002)
----S. 9--- Defamation--- Remedies--- Damages--- "Compensatory", "general" and "aggravated damages"---Scope.
Compensatory damages themselves could be divided into general and special. Plaintiff who won a defamation action was 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 had suffered and nothing greater than what was necessary to provide adequate compensation and to re-establish his reputation
General damages were based on the matters of vindication, injury to reputation and injury to feelings. Plaintiff should be able to point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. Sometimes restoration to the pre-publication status quo was not possible so the general damages purely reflected the damage caused by the defamatory publication
Unapologetic behavior of defendant could lead to award of aggravated damages. If the publisher of defamatory material was unable to establish the factual correctness of the material published, malice on the publisher's part would stand established through implication, thus fulfilling the criteria of aggravated damages
(c) Defamation Ordinance (LVI of 2002)
----Ss. 3 & 9-Defamatory and libelous material published in a newspaper against Human Rights Commission of Pakistan ("organization")---Story published in a newspaper stated that office bearers of the organization were instigators of violence, propagating anti-military sentiments through dispersal of financial rewards---Trial Court awarded damages of five million rupees against the newspaper-High Court upheld the judgment of Trial Court but reduced the damages to one million rupees---Validity---Gravity of the allegations was significant in the sense that office bearers of the organization were active in the public sphere-Allegations paved way for accusations of conspiracy against an arm of the executive by the office bearers of the organization through nefarious means-Size of the circulation of the concerned newspaper was throughout the country-Possible effects of the publication were loss of possible income for the office bearers of the organization along with loss in standing in society---Appeal was dismissed accordingly and judgment of High Court was upheld
(d) Defamation Ordinance (LVI of 2002)
----Ss. 5(b) & (c)---Code of Ethics of the Council of Pakistan Newspaper Editors (CPNE), Clauses. 2 & 3---Defamation---Defamatory material published by a newspaper---Defences---Good faith---Best practice of professional ethics---Scope---Defendant-newspaper in a case of defamation for damages, as the publisher of defamatory material, needed to prove through evidence besides pleading good faith that it was diligent in _checking facts and followed the best practices of professional ethics universally accepted---Codes of Ethics of the Council of Pakistan Newspaper Editors (CPNE) provided that press should avoid biased reporting or publication of unverified material, and avoid the expression of comments and conjectures as established fact, and that generalizations based on the behavior of an individual or a small number of individuals would be deemed unethical
(e) Defamation Ordinance (LVI of 2002)
----S. 3---Constitution of Pakistan, Arts. 4(2)(a), 14, 19 & 19A--- Defamation---Dignity of person---Constitutional obligation of State---Respect and regard for dignity of every person---Defamation of any person or citizen through spoken or written words or any other means of communication lowered the dignity of a man fully guaranteed by the Constitution, thus, not only was it the constitutional obligation of the State but all the citizens and persons living within the State to respect and show regard to dignity of every person and citizen---Anyone who committed 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 and the person violating the same had to be dealt with under the law--- When a person was disgraced, his/her dignity was brought to almost naught, thus no lenient treatment should be shown to anyone in such regard nor anyone could plead the unbridled right of expression and right to have access to information
(f) Defamation Ordinance (LVI of 2002)
----S. 3---Code of Ethics of the Council of Pakistan Newspaper Editors (CPNE)---Defamation---Media, duty of---Irresponsible and derogatory reporting of news---Media as a whole played a vital role in reshaping 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 was 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 the readers and viewers
Ms. Shaista Altaf, Advocate Supreme Court for Appellants.
Muhammad Munir Peracha, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.
Date of hearing: 17th September, 2014.
JUDGMENT
DOST MUHAMMAD KHAN, J.---Through this appeal. the appellants have questioned the legality and propriety of the judgment dated 23-1-2006 passed by the High Court of Balochistan in Regular First Appeal No. 62 of 2002. The High Court reduced the decree amount from rupees five million in damages for defamation, to rupees one million.
2. The brief facts of the case are that the respondents filed a suit for the recovery of rupees one hundred million against the petitioners as damages for publishing defamatory and libelous material against the respondent organization and its office bearers. The respondents claimed the published story in the newspaper "Khabrain" on 8-3-2004, to be false, malicious and was deliberately published to harm the reputation of the respondent organization. They claimed that the publication portrayed the office bearers as instigators of violence, propagating anti-military sentiments through dispersal of financial rewards. It was further averred that the publication incorrectly stated B.L.L.F. and Dastak to be subsidiary to the respondent organization
3. The record of the case brings the number of witnesses produced by the respondents in support of their claim up to seven along with the statement of Mr. Tahir Muhammad Khan, Advocate. According to the said record, despite availing opportunities, the appellants failed to produce evidence or submit list of witnesses, leading to the judgment dated 7-1-1999 decreeing the suit in favour of the respondents, after striking off defence. An appeal filed by the petitioners was allowed by the High Court of Balochistan vide judgment dated 13-11-2001 and the case was remanded to the learned Senior Civil Judge-I, Quetta after allowing last opportunity to the appellants to produce the evidence subject to the cost of Rs.15,000/-. Both parties were directed to appear before the trial Court on 26-11-2001 with further direction to the appellants/petitioners to submit their list of witnesses on the said date along with producing their entire evidence within two months of said date. After the remand, numerous opportunities were afforded to the petitioners to produce their evidence but they failed to do so. Their evidence was again closed vide order dated 6-3-2002. The learned Judge decreed the suit in the sum of rupees five million against the appellants jointly and severely. A Regular First Appeal was filed in the High Court of Balochistan against the judgment of Senior Civil Judge-I, Quetta. The impugned judgment upheld the judgment of the Senior Civil Judge, but reduced the amount of the decree to that of rupees one million. The legal contentions are addressed below
4. The respondent organization, registered under Societies Registration Act 1860, is governed by it. The petitioner claims that Mr.Tahir Muhammad Khan, Advocate was not competent to institute a suit in view of Section 6 of the said instrument. The concerned provision lays out that societies registered under the Act can sue or be sued in the name of the President, Chairman or Principal Secretary or Trustees as determined by the rules and regulations of the Society and in default of such determination, the name of such person as shall be provided after appointment by the Governing body. The case of Harinara yan Shaw and another v, Gobardhandhas Shroff and others AIR 1953 Calcutta 140 lays out the importance of the rules and regulations of the concerned organization, basing the reasoning of who can institute a suit on behalf of the society, on the rules and regulations of that society. As noted by the High Court of Balochistan, no evidence was brought on record which could show that the rules and regulations of the respondent organization authorize the President, Chairman, Principal Secretary or Trustee to sue on behalf of the respondent organization thus forcing the first part of Section 6 to concede to the the application of the second part
5. The petitioner claims .that the Courts in Quetta have no jurisdiction to entertain the suit since the petitioners are residents of Lahore and the respondents head office is also located in Lahore, along with the fact that neither a resident nor a newspaper seller was made party to the suit. The record shows that a similar application was filed before the trial Court which was dismissed vide order dated 16-9-1997. The principle of Res Judicata under Section 11 of The Code of Civil Procedure allows the trial Court to abstain from deciding on the same ground between the same parties again. Still taking into account the reasoning, according to the respondents, the concerned newspaper is available throughout Pakistan and enjoys a significant audience in Quetta. In support of this claim, the respondents presented witnesses who stated the availability and readership of the concerned newspaper in Quetta. The petitioners did not deny this claim of the respondents nor did they cross-examine the witnesses, thus validating them. Altaf Gauhar Wajid Shamsul Hasan and another PLD 1981 Karachi 515 has been Correctly cited in the impugned judgment, laying out the jurisdiction of Courts in defamation cases to lie in both where the newspaper is published and where it is circulated, with the option to be used by the plaintiff (respondents)
6. The grievance of the petitioners is that the impugned judgment, keeping in view the above cited case, do not take into consideration the principle laid down in Section 19 of the Code of Civil Procedure
19. Suits for compensation for wrongs to person or movables.--Where a suit is for compensation for wrong done to the person or movable property, if the wrong was done within local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
The provision, in crystal and clear terms confers the option on the plaintiff/respondent is granted by law to select or opt for the judicial jurisdiction of where he resides or where the wrong was committed. Illustration (b) provided in the Code of Civil Procedure beneath the provision gives a rather apt picture which is squarely applicable in the current matter. The illustration is as follows
A, residing in [Karachi] publishes in [Quetta] statements defamatory of B. B may sue A either in [Quetta], or in [Karachi].
In the case of Mazhar Valjee v. Sher Afghan Khan Niazi 2004 YLR 2525, section 19 is taken to be an extension of section 20, C.P.C. along with there being a significant overlap, allowing any suit being referred to in section 20 to be instituted either in the Court within whose jurisdiction the defendant resides or carries on business or personally works for gain, or where the cause of action wholly or in part arises. Section 20(c) of the Code of Civil Procedure reiterates the cause of action aspect of section 19. In the case of Messers Rahe Manzil/Transport and others v.M. PLD 1963 Karachi 182 the term 'action' denotes a proceeding in which a legal demand of a right is made. In these facts, the legal demand of the respondents is the right to damages. The case of Abdul Hakim and others v. Saad Ullah Khan PLD 1970 SC 63 defined the term 'cause of action' as every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment, and which if not proved, gives the defendant a right to judgment, the readership and distribution meeting this criteria. Readership and distribution have been proved through witnesses and since they were not cross-examined, the petitioners, through their visible conduct, do not disagree on this matter, so the aspect of these facts being notional or imaginary are out of the question, as in the case of Ahmed Nawaz v. Abdul Khalique 2002 MLD 1783. The lack of cross-examination is not a point of contention since the 'cause of action' does not refer to the evidence which is necessary to prove the readership and distribution, but rather it refers to the readership and distribution, that is, the facts themselves, as in the above mentioned case of Abdul Hakim v.Saad Ullah Khan. The case of Province of Punjab through District Collector Mian Wali and others v. Mahmood ul Hassan Khan 2007 SCMR 933 highlights that the cause of action needs to arise only in part in a said jurisdiction for it to be an open option for the plaintiff. Suffice to say, significant readership and distribution in Quetta qualifies as 'cause of action', in part at least.
7. Damages are provided as a remedy under Section 9 of the Defamation Ordinance, 2002 under three headings: (1) compensatory, (2) general and (3) aggravated. Compensatory damages themselves can be divided into general and special. A 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
8. General damages are based on the matters of vindication, injury to reputation and injury to feelings. The plaintiff should be- able to point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. Sometimes restoration to the pre-publication status quo is not possible so the general damages purely reflect the damage caused by the defamatory publication. Pain and suffering caused by the injurious defamation cannot be taken into account when it comes to a legal entity such as a registered society as in this case, but the publication specifically mentioned the office bearers of the respondent organization thus allowing this Court to lay precedent for this exception. The gravity of the allegation is significant in the sense that office bearers of the respondent organization are active in the public sphere. The allegation paves way for accusations of conspiracy against an arm of the executive by the office bearers of the respondent organization through nefarious means. The size of the circulation of the concerned newspaper is throughout Pakistan and has been established above. The possible effects of the publication are loss of possible income for the office bearers of the respondent organization along with loss in standing in society. An adequate illustration would be that of an office bearer who is also a Senior Advocate Supreme Court, whose livelihood as legal counsel can be adversely affected since it is dependent on herreputation and standing in society. The behaviour of the defendants/ petitioners has not been apologetic in the least, leading to the third category: aggravated damages. Improper or irregular conduct in connection with the publication mostly tends to arise with actions associated with the media. Simple steps such as attempts at verification, misquoting, publishing the allegations despite warnings that they are false, use of lies, subterfuge or financial inducement to obtain material or unjust intrusion of privacy. The record of the case shows that the petitioners have been granted numerous opportunities to present evidence which they have forgone
9. The defendant/appellants in a case of defamation for damages, as the publisher of defamatory material, needs to prove through evidence besides pleading good faith that they were diligent in checking facts and followed the best practices of professional ethics universally accepted. An appropriate illustration applicable in this case would be the. Codes of Ethics of the Council of Pakistan Newspaper Editors (CPNE) laying out for the press to avoid, biased reporting or publication of unverified material, and avoid the expression of comments and conjectures as established fact. Generalizations based on the behaviour of an individual or a small number of individuals will be deemed unethical. If the publisher of defamatory material is unable to establish the factual correctness of the material published, malice on the publishers part will stand established through implication, thus fulfilling the criteria of aggravated damages. Since this aspect was not brought to light in either the Courts below nor was it argued in this Court, this Court will not enhance damages.
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 and the person violating the same has to be dealt with 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 the readers and viewers
13. In view of the above observations and discussions made from all the legal angles, we are of the considered view that this appeal is bereft of all legal merits therefore the same is dismissed
MWA/L-7/SAppeal dismissed.

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