1. The plaintiff has sued the Managing Editor, Editor and Printer of an English weekly 'Punjab Times' and Editor and Printer and Publisher of an evening paper 'Daily News' for publishing an alleged defamatory and libellous news item in their newspapers of 25th and 29th of January, 1970, respectively - relating to plaintiff. The plaintiff has claimed a sum of Rs. 1,00,000 against the defendants in each of the two suits for publication of the alleged libel. The news item complained of was first published by the defendants in Suit No. 96 of 1970 in their newspaper 'Punjab Times' of 25th of January, 1970, which was reproduced by the defendants in Suit No. 92 of 1970 in their newspaper `Daily News' of 29th of January, 1970. Both the suits proceeded together and common evidence was recorded.
2. Suit No. 96 of 1970 relates to the publication of the alleged libellous news item in 'Punjab Times' of 25-1-1970. In this suit defendant No. 1 has not filed any written statement and remained absent.
3. Defendants 2 and 3 who have filed their separate written statements have not denied publication of the articles. Defendant 2 in his written statement, however, besides raising the question relating to the maintainability of the suit as framed and the territorial jurisdiction of this Court, has alleged that he being an employee of 'Punjab Times' is not personally liable and that the employers are liable for his act as his master. It is denied by defendant No. 2 that the article published in 'Punjab Times' was in any way defamatory or libellous. It is claimed that Press has a privilege to make fair comments on a matter of public interest. It is also contended that the news item in fact related to the affairs of the Pakistan Council for National Integration of which the plaintiff incidentally happened to be the Chairman at the relevant time. The defendant 3 in his written statement has pleaded that it had no knowledge about the contents and implication of the article printed at its press. It is also averred in the written statement of defendant 3 that the issue of 'Punjab Times' containing the offending article was printed at the press of defendant 3 during the absence of the responsible staff and that in any case the res--ponsibility for publication was entirely that of defendants I and 2. Both defendants 2 and 3 have admitted the receipt of a notice by the plaintiff before institution of the suit but defendant 2 asserted that he ignored the notice as he did not admit its legality while defendant 3 has contended that notice was duly replied and that circumstances under which the issue of 25-1-1970 of 'Punjab Times' was printed was fully explained.
4. The following consent issues were adopted by the Court in this suit "(1) Whether the suit is without jurisdiction ?
(2) Whether the publication in question is defamatory as alleged ? If so, has the plaintiff suffered damages due to such publication ?
(3) To what damages, if any, and against which of the defendants the plaintiff is entitled ?" bona fide. It is claimed by the defendants that the plaintiff had played a very vital role to muster political support for former President of Pakistan, Field Marshal Muhammad Ayub Khan and to give effect to his political programmes and policies. The plaintiff is said to have abused his official capacity by extending threats and inducement to the management of National Press as well as working journa--lists to throttle and suppress freedom of expression of views and dissemination of unfettered, unbiased and impartial news. The plaintiff's alleged involve--ment in the political activities is described in the written statement of these defendants as unbecoming of a Government Servant. It is denied by these defendants that plaintiff did not arrange for the visit or visits of Shaikh Mujibur Rehman to Rawalpindi or that Pakistan Council for National Integration did not pay for such visits. In view of the above alleged political activities of plaintiff it is contended by these defendants that the news item published by them in the 29th January, 1970 issue of 'News'
5. Karachi, was neither defamatory nor libellous. The suit by the plaintiff is described these defendants as a measure to prevent his further exposure to the public. The following consent issues were adopted by the Court in this suit :- "(1) Whether the plaintiff had a distinguished and meritorious service career and decorated with highest National Awards ?
(2) Whether the news published in 'Daily News' on 29th January, 1970 of which the defendant No. 1 was the editor and the defendant No. 2 was the Publisher and Printer is defamatory, libellous, malicious and injured the reputation of the plaintiff and lowered him in the eyes of his fellow men, friends, officials and colleagues ?
(3) Whether any notice was served by the plaintiff on the defendants Nos. I and 2 asking them tender and publish unconditional apology and contradiction of the defamatory news items of 29th January, 1970 and whether the defendants gave any reply to it. If not what is the effect ? Whether .
6. The failure to reply by the defendants aggravated the damage caused to the good name and reputation of the plaintiff ?
(4) Whether the defendants Nos. 1 and 2 are liable to pay damages for injuring the reputation of the plaintiff by publishing the scandalous and defamatory matter against him in their paper 'Daily News' on 29-I-1970 ?
7. I have heard Ejaz Hussain Batalvi the learned counsel for the plaintiff in the above suits, Mr. Tilmiz Burney and Mr. Abdul Muqtadar Khan for defendants 2 and 3 respectively in Suit No. 95 of 1970 and Mr. Mazharuddin Siddiqui for defendants I and 2 in Suit No. 92 of 1970. At the time of argument the learned counsel jointly made a statement before me that issues framed in Suit No. 96 of 1970 may be adopted as common issues for both these suits with the exception that decision on Issue No. 1 will be confined to Suit No. 95 of 1970 alone. This prayer of the learned counsel was allowed by me and therefore, I will treat issues framed in Suit No. 95 of 1970 are issues in both these Suits with the exception of Issue No. I which is confined to Suit No. 95 of 1970 only. 1 will first deal with Issue No. I which arises only in Suit No. 95 of 1.970.
8. Issue No. 1.-This issue relates to the jurisdiction of this Court to enter--tain Suit No. 95 of 1970. Mr. Tilmiz Burney and Mr. Muqtadir Khan, the learned counsel for defendants 2 and 3 respectively in Suit No. 95 of 1970 jointly asserted that 'Punjab Times' is published from Lahore and that this paper is mainly read by persons in that region. Mr. Ejaz Hussain Batalvi, the learned counsel for the plaintiff on the other hand contended that this Paper is available throughout Pakistan and besides being read in Lahore and other places of Punjab is also read in Karachi. The material averment with regard to the jurisdiction of this Court is contained in paragraph 2 of the plaint. In Suit No. 95 of 1970 as follows :- "The defendantis Publisher and Managing Editor, defendant 2 is the Editor and the defendant 3, the Printer (at the material time) of the English language weekly 'Punjab Times', which is circulated/published/ sold inter alia at Karachi."
9. Defendant 3 in his written statement has not denied this allegation of the plaintiff but defendant 2 in his written statement has controverted this assertion of the plaintiff as follows :- "As regards the contents of paragraph 2 of the plaint it is submitted that the circulation of the disputed Weekly is insignificant in Karachi ...."
10. It will thus be seen that the plaintiff's allegation with regard to the circu--lation of 'Punjab Times' in Karachi has not been substantially controverted by the defendants in their written statements. In his statement before the Court the plaintiff stated on oath that 'Punjab Times' was circulated in Karachi and was ,available there but he further said that he cannot say as to the extent of circulation of this paper in Karachi. In cross-examination the suggestion given to the plaintiff by the learned counsel for defendant 2 that `Punjab Times' had no circulation in Karachi was denied by him. Defendant 2 when examined in Court stated that the circulation of `Punjab Times' was mostly in Lahore and Rawalpindi but did not assert that it had no circulation in Karachi. In reply to a question asked in cross-examination defendant 2 admitted that weekly `Punjab Times' had correspondents in Rawalpindi, Karachi, Dacca and Quetta. Defendant No. 2 also stated that in cross-examination that he could not say if there were any agents of `Punjab Times' in Karachi, as according to defendant No. 2 he was not associated with the Management of Paper which was with defendant No. I who was the Managing Editor of ,the Paper. Defendant No. 1 did not step into the witness-box to deny the allegation of the plaintiff that the Paper is circulated in Karachi.
11. Issue No. 2.-This is the main issue in the suit. The plaintiff in the plaint in both the suits has alleged that the news item published by the defendants in their newspapers concerning him were highly defamatory and libellous. .The two news items, published in the `Punjab Times' and `Daily News' are substantially the same. The news item published in the 'Punjab Times' of 25th January, 1970 had the following caption : "Who-gave the SIX POINTS to Mujibur Rehman."
12. While in the 'Daily News' the same news was published with the following head lines; "Mujibur Rehman clearly supported Ayub Khan in 1965 Election. Altaf Gauhar drafted SIX POINTS for Awami League."
13. 'Punjab Times' published the news on its front page in the middle with the caption of the .News as stated above appearing in bold italic letters. The news in the 'Daily News' was published as the first and the main news with banner headlines appearing in extra bold letters. To give further prominence to the news in the 'Daily News' it was flanked by the photographs of Mujibur Rehman on the one side of the headline and that of Ayub Khan and the plaintiff on the other side. The substance of both the news items was that 'Six Points' were drafted by plaintiff in order to disrupt C.
14. O. P. Who were supporting Fatima Jinnah against Ayub Khan in 1964 Elections and that Council for National Integration which was formed during those days and which was headed by the plaintiff was instrumental in arranging visits of Mujibur Rehman to Rawalpindi and paid for the same. The plaintiff has very strongly denied these allegations made against him in the above news items and asserted that he was neither directly nor indirectly connected with the conception, formulation or the drafting of the Six Points: The plaintiff also denied the allegation that as Chairman of Council for National Integration, he arranged or paid for any of the alleged visits of Mujibur Rehman to Rawalpindi. The news items are described by the plaintiff in the two suits as malicious and calculated to bring him into hatred and contempt and to lower him in the estimation of all right thinking people and in particular, amongst his friends, officials, superiors and colleagues. It is also alleged by the plaintiff that the insinuations made against him in the above news items necessarily implies that the plaintiff was unfit to hold an office as a member of the Civil Services of Pakistan, since the conduct imputed to him amounted to the contravention of Government Servants (Conduct) Rules, 1964. It is not disputed before me that the plaintiff at the time it is alleged in the above news items had drafted the "Six Points", was a member of Pakistan Civil Services and was holding a responsible post as a Central Secretary of Information in the then Government of Pakistan. It is also not disputed before me that reference to "Six Points" in the above news items meant the political manifesto of "Awami League" (a political party of the then Pakistan) which later came to be known popularly amongst the people as the "Six Points", the allegations, therefore, made in the above news items were undoubtedly of a very serious nature and had the tendency of exploring the plaintiff to serious consequences as a Government servant, if found to be true, I have, therefore, no hesitation in observing that publication of such a statement concerning plaintiff, who was then a responsible Government Servant in the employ of Government of Pakistan in a newspaper, if found to be untrue, was nothing short of a defamatory statement. Apart from it, it is now a matter of history that as soon as Mujibur Rehman had declared the "Six Points" as the Manifesto of Awami League for the then incoming General Elections of 1971, there was a sharp reaction amongst the people and the Press in general and in the political circles in particular in the then territory of West Pakistan (now Pakistan) against the "Six Points" of Awami League. These "Six Points" were widely criticised and were considered ominous to the solidarity and integrity of a united Pakistan. The fact that the impugned news item of 25th January, 1970 in the 'Punjab Times' described the "Six Points" and the alleged unholy alliance between Mujibur Rehman and Ayub Khan as a dastardly conspiracy against the people of Pakistan is itself reflective of the feeling of Press and the public then to this whole gambit. Similarly, the editorial dated 13-5-1965 written by the "Daily News" on a "Six Points" and another article written by late Agha Shorish Kashmiri analysing the "Six Points" which was published in the `Daily News' of 24th July, 1967 and which are produced by the defendants in Suit No. 92 of 1970 as Exhs. 3/2 and 3/3 respectively are also indicative of the general reaction of the people and press to the "Six Points". In this charged atmosphere of adverse public opinion, the allegation made in the impugned news items that the "Six Points were drafted by plaintiff could not be a matter of price for the plaintiff in those days. Such a charge in my view bad the clear tendency of exposing any Pakistani in the then territory of West Pakistan to public hatred and criticism, more so in the case of plaintiff who was a responsible officer in the then Central Government of Pakistan.
15. "It is a fact that the statement of accounts submitted to the Public Accounts Committee are public documents.
16. Question.-Did you before publishing the story in question, take the trouble of checking up the public account of the council for National Integration for the relevant year before making the allegation regarding payments of travel expenses to Sheikh Mujibur Rehman contained in the story in question ?
17. Answer.-We did not verify or investigate.
18. The Daily News had the benefit of the services of a legal adviser. I had training as a journalist in U. K.
19. There is definitely a practice that in cases where the intended news to be published are likely to result in defamation, the matter is referred for opinion to the legal adviser before publishing the news item in question. We did not do so because the news were received by us through a Government recognized News Agency."
20. It is significant to note that the reason given by defendant. No. 1 for not seeking legal opinion in respect of the impugned news was that it was received through a Government recognized agency and not that the news item was not defamatory.
21. The defendants, however, at the time of argument, have raised several pleas to justify the publication of the news items by them.- In Suit No. 95 of 1970 the defendants have taken the plea of justification. I need only say here that in order to succeed in a plea of justification the whole of they statement made by the defendants must be proved to be substantially true. The defendants in both the suits failed to establish on record that the allegations made in the news items against plaintiff were true and correct. Consequently the plea of justification raised by the defendants in Suit No. 95 of 1970 cannot be sustained. The above proposition regarding the plea of justification stated by me need no authority, however if one is needed reference may be made to the case of Khairuddin v: Tara SinghA .1 R 1927 Lab. 20.
22. The other pleas raised in common by the defendants to both the above suits are that the publication of the impugned news by them was in the nature of fair comment in public good on a matter of public interest and that in any case they are entitled to privilege. The contentions raised by the defendants have not impressed me at all. There is a good deal of difference between a comment and an allegation of the fact. A bare reading of the two news items show that they contain no comments as such with regard to the merits or demerits of the 'Six Points'. All that has been stated in the two news items is that the plaintiff was the person who drafted the 'Six Points', and that the plaintiff as Chairman of the Council for National Integration arranged and paid for the visits of Mujibur Rehman to Rawalpindi. Could these statements of facts by any standard be treated, as comments ? The answer, in my view, plainly is in the negative. The above statements are bare allegations of facts against the plaintiff that he, had done or committed certain acts. This, in my view, by no means can be considered as a comment, much less a fair comment: A statement of fact of the nature stated above cannot be described as a criticism of anything and, therefore cannot be justified as, a, comment at all. Assuming that the news item was in the nature of a comment as contended by the defendants, even then if the words complained of also contained allegations of facts the defendants are required to prove that such allegations of facts were true and it will not be sufficient for them to only allege that they bona fidely believed them to be true. I4 order to giveroom to the plea of fair comment the facts must be briefly stated and if the facts upon which the comment purports to be made do not exist, the plea of fair comment would fail. The above view expressed by me finds full support from the case of Subhasl Chandra Bose v. R.
23. Knight & Sons and another (AIR1929Ca1.69).
24. "The principle upon which the law of qualified privilege rests is this that where words are published which are both false and defamatory the law presumes malice on the part of the person who publishes them. The publication may, however, take place under circumstances which create a qualified privilege. If so, the presumption of malice is rebutted by the privilege, and the plaintiff has to prove express malice on the part of the person responsible for the publication. The effect of proving express malice is sometimes spoken of as defeating the privilege ...Although the occasion remains a privileged occasion, the privilged afforded by the occasion ceases to be an effective weapon of defence ... Qualified privilege is a defence only to the extent that it throws on the plaintiff the burden of proving express malice. Directly the plaintiff succeeds in doing this the defence vanishes, and it becomes immaterial that the publication was on a privileged occasion."
25. While still on the plea of 'privilege' I may also quote here the following passage from the decision of Privy Council in the case of Channing Arnold v. King-Emperor (AIR1914PC116) appearing at page 124 of the report which laid down the legal position in those days with regard to the oft-repeated claim of privilege by newspapers and which in my opinion also holds good even today; "Their Lordships regret to find that there appeared on the one side in this case the time worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever length the subject in general may go, so also may the journalist, but apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may and in the case of a conscientious journalist do, make him more careful ; but the range of his assertions, his criticisms, or his comments is as wide, as, and no wider than, that of any other subject. No privilege attaches to his position."
26. It will thus appear that a newspaperman or a journalist who publishes a defamatory statement which is not true concerning a member of public orb a Government servant is in the same position in the eye of law as any, other member of the public and is not specially privileged. On the other hand he has greater responsibility to guard against untruth for the simple reason that his utterances have a far larger publication than the utterances of a common man and such utterances are more likely to be believed by the ignorants by reasons of their publication in Press.
27. The duties of an editor, journalist or a newspaperman need not be overemphasised ; they are clear.
28. He should be most watchful not to publish defamatory attacks upon individuals unless he first takes reasonable pains to ascertain that there are strong and cogent grounds for believing the information which is sent to him for publication, to be true ; that proof is readily available and that in particular circumstances his duty to public requires him to make the facts known. 1f he acts in disregard of these precautions he is likely to be held liable for defamation. The learned counsel for the plaintiff also cited the case of S. M. Narayanan and another v. S. R. Narayana lyer (AIR 1961 Mad.
29. 254) which also supports my view.
30. The learned counsel for defendants in Suit No. 92 of 1970, apart from raising the above two pleas in common with the defendants in Suit No. 95 of 1970 have further argued that the publication of the article by the defendants was subsequent to its publication in 'Punjab Times' and therefore, no liability attaches on them for its publication. The argument has no substance as the publication of the article earlier is no defence in a suit for defamation. In the cases of Re-Pherson v. Danniels (8 L J (O S) K B 14) and Wutkin v. Hall ((1868) 3 Q B 396) it was held that it is no defence to a civil suit that the person who published the libel or a slander did not originate it but heard it or received it from another. Nor is it a defence that it was a current rumour and the person publishing it bona fide believed it to be true. It was remarked in these cases that as great an injury may arise from the wrongful repetition as from the first publication of slander. Similarly in De Creepingay v. Wellesly (3 L J (O S) C P 100=2 M P 695) it was held that the fact that the publication was a letter communicated by a member of the public with request to publish it in the Paper, is no exoneration to the editor who disseminate defamatory letter.
31. It was lastly contended by, the defendants in Suit No. 92 of 1970 that the plaintiff had relied upon an innuendo as the words per se are note defamatory, and the plaintiff has failed to lead any evidence to prove the innuendo. Therefore, there could be no defamation of plaintiff as such It is true that in the two news items it is only alleged that the plaintiff was the author of the Six Points.
32. What were those Six Points have not bee stated in the two news items. But the learned counsel for the defendant admitted before me that by Six Points the reference was to the Manifesto of Awami League which later came to be known popularly only as 'The Six Points'. It is also not disputed before me that in those days it was generally understood by the public with reference to 'Six Points' as meaning thereby the Manifesto of Awami League. In view of this admitted position it was hardly necessary for the plaintiff to have led any evidence in proof of the innuendo. It is a matter of common. Knowledge that soon after Six Points were declared by Mujibur Rehman to the years 1966 as a political Manifesto of his party Awami League, it was understood as such by the, people generally throughout Pakistan at that time. It was then contended by the learned counsel for the defendants that the plaintiff has not led any evidence to show that he has actually been lowered in the estimation of other people or suffered damages to his reputation by publication of these news items. I have already reached the conclusion that the news item published by the defendants were defamatory in nature. It is true that plaintiff ha not led any evidence in proof of special damages but in cases of publication of defamatory material some damages are presumed to have flown from such a publication. Therefore the fact that plaintiff has not led proof of special damages would not necessarily mean that he will not be entitled to general damages as well. 1, therefore, hold that the two news items published I the `Punjab Times' of 25-1-1970 and `Daily News' of 29-1- 1970 by the defendants in Suits Nos. 95 of 1970 and 92 of 1970 respectively were defamatory of plaintiff and although the plaintiff has failed to prove special damages, he is entitled to general damages on account of publication of these articles.
33. Issue No. 3.-The plaintiff has claimed Rs. 1 lac against the defendants in each of the above Suits respectively for publication of the above defamatory news concerning him. The plaintiff has not led any evidence on quantum of damages. The learned counsel for the plaintiff however urged at the time of argument that keeping in view the circumstances of the case and social status of plaintiff in life, the amount claimed as damages in the two suits may be decreed. The learned counsel for the defendants on the other hand jointly argued that the plaintiff having failed to prove special damages in such a case, the Court should refuse to grant general damages as well.. The grant of general damages in proceedings of this nature where plaintiff succeeds in proving defamation is inherent in the action as the law presumes that some damages must have resulted t plaintiff by publication of a defamatory and libellous statement which is actionable. There is however no rule of law regulating the assessm ent o general damages in such cases. It is left to the jury in England and to Judge in this country to assess the damages. The assessment of damage in such cases are therefore not capable of any exact appraisement. However, L while assessing the amount of general damages, it must be kept in view that damages for defamation are compensatory in nature and therefore the amount assessed should not appear to be punitive or exemplary. No doubt on proof of certain facts the Court may grant even punitive or exemplary damage but these need not be discussed !Here as neither such damages are claimed by the plaintiff nor a case for their grant is made out here. Will therefor here refer to some of the decided cases in which Court assessed general damages in such cases. In the case of Harold Rebort Henry Lind v. British Insulated Callendar's Construction Co. Ltd (PLD 1970 Kar. 315), a learned Single Judge of the erstwhile High Court of West Pakistan Karachi Bench assessed the general damages for publication of a defamatory matter in a newspaper concerning plaintiff who was the Managing Director of Canbrit Consultant Ltd. At Rs. 10,OC0 in the absence of evidence for mitigation of damaged led by defendant in that suit. Similarly in the case of Dr. Q. M. Qarni v. Mir Khalilur Rehman and 4 others (PLD 1975 Kar. 379). Fakhruddin G. Ebrahim, J. Assessed the general damages for publishing defamatory material relating to plaintiff who was a practising Doctor in a newspaper, at Rs. 15.000 in spite of existence of mitigating circumstances that the defendants in that suit were prepared to publish in their paper the plaintiff's version of the controversy. I maymention here that in the Lind's case referred to above the damages were claimed by the plaintiff at Rs. 5 lacs while in the case of Dr. Qarni, the plaintiff had claimed Rs. 1 lac as damages. I may here also mention the case of M. A. Qarni, Advocate v. Karachi Stock Exchange Ltd. (PLD 1.975 Kar. 556) in which, a Division Bench of this Court while reversing the decree of dismissal of a suit for damages for defamation, assessed and awarded general damages to the plaintiff/appellant at Rs. 14,000 in spite of the fact that the plaintiff had omitted to specify the amount of general damages in the plaint. Keeping in view the rationale for grant of damages followed by the Courts gene ally in this Country, I was inclined to grant Rs. 20,000 as damages to the plaintiff in each of these suits but the learned counsel rightly pointed out that in view . Of the pleadings of defendants in the suits and the manner in which they cross-examined the plaintiff and offered their own evidence on the issues, the plaintiff is entitled to grant of aggravated damages. The defendants at no stage of .The trial expressed their remorsefulness for publishing the news item. On the contrary, they not only pleaded justification in their written statement but persisted with their pleas until the end. I will, therefore, in consideration of the attitude of defendants; right from the time the libel was published until the matter was argued before, me enhance the amount of damages on account of aggravated circumstances to Rs. 5,000 more in each suit. The result is that the plaintiff will be entitled to recover damages in each suit amounting to Rs. 25,0;10. The issues also call for determination of liability of each defendants. In cases where defamatory or libellous material is published in newspapers, the responsibility of the editor, printer and publisher is both joint and several. In Suit No. 95 of 1970 defendant No. 1 was the Publisher and Managing Editor, defendant No. 1 was the Editor and defendant No. 3 was the Printer of the newspaper `Punjab Times' at the relevant time. Similarly in Suit No. 92 of 1970, the defendant No. I was the editor and defendant No. 2 was the Printer and Publisher of `Daily News'. The liability of these defendants for publication of the defamatory news is both joint and several and cannot be splitted up separately.
34. M. Y. H.Suits decrsed.