' This is a suit for damages filed by Mian Sohail Iftikhar (since deceased) and Syed Sajjad Baqir Rizvi against (1) The Daily Nawa-i-Waqt, Lahore, defendant 1 (hereinafter called 'the Paper'), (2) Nawa-i- Waqt Publications Ltd., defendant 2, (3) Mr. Majid Nizami, defendant 3 and (4) Mr. Khalid Kashmiri, defendant 4, under the following circumstances.
1. Plaintiff 1 claimed to be the sole proprietor of Nigarishat, a publishing house situated at Lahore. He died during the pendency of the suit. The suit, so far as he is concerned, has abated for the right to sue, as agreed by the learned counsel for the plaintiffs, is not survived. Plaintiff 2 claimed to be a poe critic, author and translator of works in Urdu language and was at all the material time a lecturer in the Oriental College of the University of the Punjab, Lahore.
2. Defendant 1 is an Urdu daily newspaper published throughout West Pakistan (now also published from Karachi) with its head office in Lahore. Since the newspaper is not a legal entity and it was so agreed, therefore, it will not be considered as a defendant to the suit. However, it will be referred to hereinafter as "the newspaper".
' Admittedly defendant 2 is a limited liability company with its registered office at Lahore and is the owner of the newspaper.
3. The plaintiff's case is as follows :- ' That in the year 1968, plaintiff No. 1 published a book in Urdu under the title Dastan-i-Mughlia (hereinafter called 'the book'), plaintiff No, 2 was the translator of the book. The book is a selection in Urdu translation from the memories of one Niccolae Manucci who was an Italian adventurer and traveller and who visited India in the 17th Century, during the reigns of the Mughal Kings, Shahjehan and Aurangzeb. He wrote a manuscript containing an extensive account of his experience in India under the title "Storio-de-Mogor". An English translation of Manucci's said memoirs was edited for the Government of India, by William Irvine, I. C. S., and published in for volumes in the year 1907 under the name and title of "Storio-de-Mogor". The book was published by the deceased plaintiff No. 1, and the same it is claimed, won a prize from the National Book Centre, a Government sponsored institution located in Karachi.
' That defendant No, 4 wrote an article relating to the book under the title of "The Founder of the Badshahi Masjid, Lahore and Dastan-iMughlia", and sub-title of 'A Pakistani in Manucci's garb'. `Shivaji's Pakistani Progeny', who are the malevolent and evil natured, which was published in the newspaper in its issue of September 3, 1968. He was, at the relevant time an employee of defendant No, 2 on the permanent' staff of the newspaper. Defendant No, 3, was at the relevant time, the editor, printer and publisher of the newspaper. The newspaper has a considerable circulation throughout West Pakistan and is inter alia widely circulated in Karachi. The newspaper was distributed for sale in Karachi on the morning of September 3, 1960.
4. The English translation of the article reads as follows :- "Founder of the Badshahi illasjid, Lahore, and "Dastan-I-Mughlia".--A Pakistani in Manucci's garb.
Shivaji's Pakistani Progeny, who are the malevolent and evil natured" ?
' In the God granted State of Pakistan, which Pakistani of mature mind is unaware of the manner in which those elements who seek the establishment of a red and white order, do, on various occasions misconstrue the Islamic National ideology when presenting it to the public and do also use out of context the works of the Interpreter of Islamic ideology, Allama Iqbal. In the last few years which attempt has not been made to trace red and white stripes in (or) green atmosphere. But why have these lines not been of any permanence. This is the feat of that nation which for the attainment of a bright morrow traversed rivers of fire and blood and which now refuses to see this morrow (coloured) in a bloody or lifeless colour.
' But in this connection while the powers of defence have become stronger on the other side the extent of the front has become yet wider. After the Pakistan movement, an attempt had been made to show the Father of the Nation, Quaid-i-Azam, and the Thinker of Islam, Allama Iqbal as being protagonists of certain ideas of a special kind differing from the Islamic point of view, now this attempt has been extended to the Islam loving and saintly King of the Mughal Dynasty, Aurangzeb Alamgir. Hence a publishing firm of Lahore Nigarishat have published a book under the name "Dastan-i-Mughlia" in which every attempt has been made to misconstrue the character and manner of that ruler of the Mughal Dynasty, Aurangzeb Alamgir.
' In fact this book, which a "son" of Pakistan Mr. Sajjad Baqir Rizvi has translated, was written in the 17th Century in Italian by an Italian citizen Mr. Niccolae Menisci in accordance with the desire of the English. Later when the sub-continent came fully under the governance of the Ferengi, the Government got William Irvine to prepare an English translation of this book in for volumes. In the publication of this book the purpose of the English was to misrepresent the character of those Muslim leaders whose manners and characters were imprinted upon the hearts of the Muslims of the sub-continent. This book is a detestable attempt at showing that an angelic frishta sirae King such as Aurangzeb was devoid of ethics or morals else why would the English have bothered to take an interest in this matter again in 1907, and Commission William Irvine to translate this book, into English. However, when William Irvine translated this book, he, as a result of his own personal research, wrote footnotes to the text describing some true facets of Aurangzeb's life. After this Margaret Irvine wrote a book on Niccolae Manucci and stated that Manucci was a known bigot and fabricator of his period. In this book Margaret Irvine has refuted many of the allegations made by Manuci against Aurangzeb and has shown him (Manucci) as being far from the truth.
' This was at a time when the Mussalmans were inordinately backward educationally, and they were very few among the Mussalmans who would have read such a book. That is why this contemptible attempt did not receive much publicity at the time. When after a length of time the Mussalmans woke from their sleep of forgetfulness and were taking stock of their surrounding and when Buckingham Palace and sanctuaries of those who chant "Har Har Mahadeo" started shaking and quaking, it was then that-as a result of a premeditated plan-the Shuddhi Movement raised its head. At this period a pillar of the Shuddhi Movement, Mulk Raj Sharma, translated William Irvine's book into Urdu. Whatever Irvine' may have left undone in misrepresenting Aurangzeb's character, this evil-natured writer completed. In this book he used all possible methods to exalt Shivaji over Aurangzeb. But as soon as this book caught the eye of the Father of Journalism, Maulana Zafar Ali Khan, he tore to shreds not only Sharma, but this book's actual author, Manucci as well. (By writing) in his newspaper he suppressed this mischief with such force that this issue again receded into the background. After this, no one had the courage to write even a sentence against the author of "Fatawa-i-Alamgiri".
' But more than a quarter of a century later again from the land of those people whose heads bow in acknowledgement of Aurangzeb's intellectual services a so-called "Pakistani Mussalman" has fulfilled the role of Mulk Raj Sharma.
' In misrepresenting the Story of the Mughals (Dastan-i-Mughlia) or translator has surpassed all others. Let us bewail this new admixture of red and green (who) is seen crawling on the thoroughfare of the Halqa-iArbab-i-Zauq. Let us give credit to this translator of "ours" who has brought together all those portions of William Irvine's English translation which attack the person of Hazrat Aurangzeb Alarngir (Rahmat Ullah'eleh).
' In the preface of Dastan-i-Mughlia it is written that "Manucci disliked Aurangzeb intensely "
Elsewhere it is written that "personal prejudice and an interest in rumours are the essence of Manucci's character. Many of the things that he has written cannot be proved as historically correct. While living in India he seems to have been everything-a soldier, an ambassador, a religious man. Often he does not hesitate from exaggeration and fabrication-his writings evince a prejudiced mind". Pray consider why was the firm Nigarishat impatient to produce for the public with care the writings of such a man. If only people would understand that : "Death is preferably to that livelihood ....................
' Now let us examine some extracts from "Dastan-i-Mughlia". Let us bemoan those minds that despite taking refuge under the tall minarets of the Alamgiri Mosque are busy in making its foundations hollow.
' Dastan-i-Mughlia" Page No, 10, Line No, 10 : "Although he did not fail to give the new governors good instructions, he added unfailingly some others that served his own dissimulations and intrigues. Among these was an order that they might take false oaths, and by thus swearing gain over men and raise rebellions in neighbouring kingdoms. When the attempt succeeded, it would suffice for them to feed ten mendicants, by which they would be freed from their sin and absolved from their promises, in spite of having backed them a thousand oaths on the Qur'an."
' Page No, 12, third paragraphs : "Aurangzeb did another very ridiculous thing to show himself a scrupulous observer of the Faith."
' Page No, 16, first paragraph.
"The greatest abuse there was and still is, is due to the cheating and hypocrisy of the holy mendicants. These men call themselves Saheda (Sayyid), descendants of Muhammad, and deceive the people with hypocrisy and pretended miracles.
' Consider this brazen-facedness which for the fulfilment of its own dirty motives had had the audacity to attack as elevated a position, and "acknowledge" too the translator for the style in which he has executed this translation. On page No, 17, the organization of the State is criticised and in the second paragraph the following is stated :- "To this abuse Aurangzeb applied no remedy, being the companion of such men, a pretender and hypocrite like them.
' And then on page No, 21, the writer's and translator's enmity of Aurangzeb seems to have reached its zenith. This page's tenth line is as follows "Thus it may be said that Aurangzeb was a perfect disciple of the pharisee, spoken of by or Saviour in the Gospel, who, instead of asking mercy from God, did nothing but recite his own works."
' Similarly on page No, 25, an attempt has been made to show Aurangzeb as being deceitful and on page No, 31, as being needlessly extravagant. Mentioning a wrong incident on page No, 208, in the third para. It is stated : "Aurangzeb, the cunning fox, concealed his intentions ....................
' Apart from Aurangzeb's own person, the characters of his sister Roshan Ara Begum and his daughter Fakhrunnisa Begum have also been attacked in a most shameful manner. They are mentioned on page No, 29 and page No, 129 in a most repulsive manner. Apart from this the whole book contains a number of fabricated incidents and the words cruel, scheming, deceitful, malevolent and evil natured have been used in several places for Aurangzeb, also in certain places an attempt has been made to show that apart from his wives he had also kept mistresses. It seems that this book has not been published by a Pakistani but by some offspring of Shivaji and that its translator is a Mahasha.
' After reading this book one also get the impression that there is in this country a class that has, as a result of having prepared a special plan, initiated a Scheme of brain washing so that the character of those leaders and elders who are worthy of great esteem should not impress themselves upon the minds of the younger generation and that they should develop an aversion to those elders who had an Islamic outlook on life and Islamic mode of thought.
' Without doubt such books constitute a severe blow on the political foundations of Pakistan. After all why was the need felt at this time to translate this book and to have it printed in so splendid manner. Why should any Pakistani publisher spend so extravagantly on the production of this so- called translation ? Which Pakistani endowed with consciousness will by such a book ? This revelation in the book that an Islam-loving Muslim King such as Aurangzeb was a pupil of a Jew is undoubtedly a fabrication. An inquiry into this matter will undoubtedly ensure the permanence of Islamic values and traditions in Pakistan, and the immediate confiscation of this book will abort the first practical attempt at brain washing in this country. Would it be too much to expect of the Provincial Governor that he should, after an inquiry, inform the public as to whose hand is behind the publication of this book and whose capital.
5. According to the plaintiffs the article contained allegations, inter alia expressly, or by clear implication in their own words to the following effect :-
(1) There is a group of persons in Pakistan to which the plaintiffs belong which is anxious to establish in Pakistan a "Red and White" (Communist and Imperialist) atmosphere. Finding that its efforts are being thwarted by Pakistani Muslims, this group is now making considerable extension in the front which it has opened for attack on the Muslims. While the unsuccessful efforts of this group to present to the country a distorted picture of the way of thinking of the Quaid-i-Azam and Allama Iqbal are continuing, this group has extended its campaign so as to include in its scope the saint King Aurangzeb Alamgir and has for this purpose got published by Nigarishat a book under the title of 'Dastan-i-Mughlia' in which no effort has been spared to vilify Aurangzeb Alamgir ;
(ii) The work of which this book is a translation (of a part) was written in the Italian language by Niccolae Manucci an Italian, in the 17th Century, at the bidding of the English ;
(iii) Later when the whole Indian Sub-Continent came under British rule, the British Government commissioned William Irvine to translate Manucci's work, the object of the British Government being to paint Muslim heroes in lurid colours. This translation was a mean attempt to show that this angel-like king suffered from moral bankruptcy ;
(iv) Afterwards, Margaret Irvine, the daughter of William Irvine write a book on Niccolae Manucci in which she exposed Niccolae Manucci. She characterized him as a bigot who fabricated calumnies and she refuted as baseless many of the charges brought by Manucci against Aurangzeb Alamgir ;
(v) At the time when William Irvine's translation was published, i,e, in 1907, the Muslims of India were educationally so backward that there were very few persons amongst them who would read such a book at all and it is for this reason alone that this disgraceful attack on Aurangzeb which otherwise would have evoked severe protests from the Muslims of India, escaped notice ;
(vi) Afterwards 'while the Muslims on their awakening from their slumber were taking stock of their surroundings and Buckingham Palace as well as the retreats of the Hindus were trembling with fear of the Muslims", there was one more attack on Aurangzeb and that was made when the Shudhi Movement was launched by the Hindus under a well-considered scheme. One of the pillars of the Shudhi Movement called Mulk Raj Sharma translated William Irvine's work into Urdu and he even added to the vilification contained in the work of William Irvine; but the late Moulana Zafar Ali Khan made a pungent attack on Mulk Raj Sharma as well as on Manucci and put up a defence against this mischief in his daily newspaper with such force that the matter once again receded into the backgrounds ;
(vii) After this nobody ever dared to say one sentence against Aurangzeb; the two attacks on Aurangzeb mentioned above were the only ones ever made ;
(viii) Now in Pakistan the role of Mulk Raj Sharma has been fulfilled by a so-called Pakistani Muslim (i,e, Plaintiff No, 2) who has surpassed all the previous translators and authors in misrepresenting the story of the Mughuls ;
(ix) That the translator of Dastan-i-Mughlia is a reptitian Pakistani communist ;
(x) The `Dastan-i-Mughlia' is just a collection of all those portions of the work of William Irvine which condemned Aurangzeb Alamgir ;
(xi) The publisher has sold himself for money, that is, the money which he will get, not by sale of the book-for no sensible Pakistani Muslim is going to purchase such a book-but from the secret source which is providing capital for the publication of this book ;
(xii) The publisher and the translator were deliberately trying to weaken the foundations of the Islamic State of Pakistan under whose protection they were living and whose benefits they were enjoying and so were traitors ;
(xiii) That it seemed that the publisher of this book was the son of the Marhatta Shivaji and the translator a contemptible `Mahasha'; that the persons who produced this book had a vile and malicious nature and that they have adopted the role of Manucci in Pakistan and had acted from most detestable notices ;
(xiv) It seems apparent that the publication of the book heralds the commencement of a preplanned brain washing Scheme, the object of which is to shatter the image of the religious leaders of the Muslims and of persons who are held in great esteem by them so that the new generation may lose faith in those who follow the Muslim way of life and who subscribe to an Islamic ideology ;
(xv) The publication of the book was a severe blow to the foundations of the State; this blow was delivered by those very persons who have found refuge in the State but are nevertheless busy making its foundations hollow ;
(xvi) The translator as well as the publisher of this book were enemies of Aurangzeb ;
(xvii) It was proper that a thorough enquiry be made into the reasons for the bringing out of this book and it was expected from the Governor of the Province that he would, after making an investigation, inform the public as to whose hand was behind this book and what secret source provided the money with which it was printed and published in such grand style ; (xviii) That this book be banned by the Government and that its banning would help perpetuate Islamic traditions in this country."
6. The plaintiffs claim that the defendants have falsely and maliciously defamed them and caused incalculable damage to their reputation in that they have attacked their person and name in the form of the grossest insults and abuses that can conceivably be heaped upon any citizen of Pakistan. According, to the plaintiffs the defendants have made the following false, defamatory and malicious allegations :
(a) That the plaintiffs are engaged in a wider conspiracy for undermining the foundations of the State ;
(b) That in this endeavour they are in league with Communism and Imperialism ?
(c) That the book has been published with malicious motives other than professional considerations ;
(d) That the plaintiffs have derived secret profit from non-commercial sources in the pursuit of their traitorous intentions
(e) That the plaintiffs are the worst enemies of Pakistan, Islam and its Heroes ;
(f) That the plaintiff No. 1 is playing the role of Shivaji in Pakistan and is in fact a spiritual offspring of Shivaji and that the plaintiff No, 2 is a Mahasha ;
(g) That the plaintiffs represent a fifth column in Pakistan ;
(12) That in respect of plaintiff No, 2 a very specific charge has been made that he is not a Pakistani and is in fact a Communist and this charge has been repeated twice."
7. According to the plaintiffs the defendants have transgressed all boundaries of permissible literary criticism or rules of civilized language, and they have indulged in this jumble of insults, reckless untruths and abuse in a deliberate attempt to damage the reputation of the plaintiffs and to bring them into hatred and contempt. The plaintiffs claim that the attack on the book is a part of long campaign over a period of years carried on by the defendant 1 against the family of the plaintiff I. The plaintiffs claim that the whole article with the exceptions of that which is expressly admitted in the plaint is true.
8. The plaintiffs have specified the following statements which according to them are false, malicious and defamatory :- "(i) It is untrue that there is a group of persons engaged in a conspiracy (Communist and Imperialist) to which the plaintiffs belong and/or that the plaintiffs are part of an extension of a front opened for attack on Muslim Heroes and Islamic Ideology ;
(ii) It is untrue, as alleged by the defendants, that William Irvine appended footnotes to his translation describing some true facts of Aurangzeb's life and contradicted the description given by Manucci. William Irvine has written copious footnotes but they are of a purely academic nature.
In fact William Irvine's purposes in writing the footnotes, as stated by him, is as follows :
(iii) One of the principal objects I have had in writing the notes which I have added to the text has been to show that, with rare exceptions Manucci's statements, where they can be verified, are historically accurate. And a fair inference is that where there is no such corroboration, he may equally be accepted as trustworthy."
(iv) It is also untrue that Margaret Irvine wrote a book on Niccolae Manucci in which she exposed Manucci and characterized him as a liar, Margaret Irvine only published an abridgment of her father's translation with a short introduction which does not contain any comments adverse to Manucci and by implication she had accepted him as a truthful person.
(v) It is untrue as alleged that the Muslims of India were educationally so backward in 1907 that there were few amongst them who could read such a book (William. Irvine's Edition) which is the reason that it did not receive much opposition at the time of publication.
(vi) It is untrue that Mulk Raj Sharma was either a member of the Shudhi Movement or that he wrote the book in furtherance of the designs of the said Movement.
(vii) It is untrue as suggested that the translation of Manucci by William Irvine and Mulk Raj Sharma are the only books critical of Aurangzeb. Also it is not correct that the attitude of the Muslims of India or Pakistan is such that they would not have permitted-except in the case of William Irvine's work then they were allegedly educationally backward-any attack on Aurangzeb without a strong protest and a demand for action.
(viii)The defendant's statement in the article that after Maulana Zafar Ali Khan's attack on Sharma's translation of Manucci, no work critical of Auranzeb was ever published is patently untrue.
(ix) It is untrue, as alleged, that all those portions of Storio-de-Mogor which attack Aurangzeb have been included in the book "Dastan-iMughlia."
(x) It is untrue that what Manucci wrote has been brought before the public only twice, one by William Irvine and once by Mulk Raj Sharma, as the writer of the article would have us believe."
9. ' The plaintiffs hays impugned another article published in its issue of September 5, 1968 as defamatory. This article is written by one who called himself "historian" (Moerikh). This article was published under the title "Dastan-i-Mughlia"-A Filthy (Napak) Book. Manucci was a rumour mongering, opportunistic, evil natured, lying traveller". According to the plaintiffs, in this article it was stated : "(i) There was a group of persons in Pakistan, to which the plaintiffs belonged and which was making an organized effort to condemn the Muslim way of life, and this book was a part of that effort. This group was declaring that Islam was dead and its civilization too was dead, and that when it was alive it was a disgraceful civilization ;
(ii) The translator of Dastan-i-Mughlia had behaved like the obscene sex portrayer of the West and had in this manner tried to imprint upon the public mind his modernity.
(iii) The translator had not cared to see what had been said by other historians and those who had undertaken researches on the subject of Manucci and Aurangzeb ;
(iv) The translator had not cared to consider whether Manucci was reliable nor had he said anything to discredit Manucci ;
(v) The translator is not a gentleman (Sharif Adami).
(vi) There were marginal notes in favour of Aurangzeb by William Irvine and Mulk Raj Sharma which had been omitted by the translator ; had the translator even preserved such marginal notes this would have satisfied the public that he was acting bona fide.
(vii) That William Irvine and Mulk Raj Sharma had out of respect refrained from translating anything relating to Aurangzeb's woman folk and 'harem', but that the present translator has taken greater delight in reproducing from the original all such shameful portions.
(viii) The translator has a vile nature and was an enemy of the Muslims.
(ix) The translator had in the process of translation concerted milder words into language which conveyed sharper accusations against Aurangzeb.
(x) That the translator had translated a book which had been regarded as unreliable even by the allegedly bigoted Hindu Historian Jadunath Sarkar.
(xi) In view of the systematic attempts at destruction of the self-respect of the Muslims of Pakistan and at their demoralization it was essential for the Muslims of Pakistan to give expression to acute hatred and contempt against the book so that the publisher is ultimately forced to remove it from the market."
10. According to the plaintiffs this article, a considerable part whereof allegedly consists of abuses is not only highly defamatory of the plaintiffs but embodies an overt attempt to create violent hatred against the plaintiffs and to incite the Muslim against them. According to the plaintiffs all the allegations made in it except those which are expressly admitted in the plaint to be true, altogether untrue and they are also malicious.
11. The plaintiffs have yet impugned a news item which appeared in the newspaper, in its issue of October 10, 1968. It may be useful to set out hereinbelow its English translation done by the plaintiffs and annexed to the plaint as Annexure IV.
"THE STRONGEST ACTION POSSIBLE SHOULD BE TAKEN AGAINST THOSE SO-CALLED MUSSALMANS WHO FLING MUD AT OUR ANCESTORS (BR. ABDULLAH)"
"A DEMAND FOR THE FORFEITURE OF DASTAN-I-MUGHLIA"
"Diverse Scholars, Educationists and notables of the City in a resolution passed at a meeting requested the Government to ban immediately the book "Dastan-i-Mughlia", published by the firm Nigarishat, Lahore, because historical Facts and truth had been distorted in this book. This gathering was convened by a Councilor of the Corporation, Chaudhry Muhammad Amin at a local, hotel under the Chairmanship of Maulana Abdus Sattar Niazi. On this occasion, with regard to the resolution asking for the forfeiture of "Dastan-i-Mughlia", it was stated that repulsive words, such as hypocrite and evil-natured have been used in this book for that Crusading and Saintly King of the sub-continent, Aurangzeb Alamgir (Rehmat Ullah `Eleh), despite the fact that this was that Ruler who raised his voice against the heretical elements of his time and who also had compiled that famous book of fikah, the "Fatawa-e-Alamgin". In the resolution, it was also stated that such base attacks had been launched against the sisters and daughters of Aurangzeb Alamgir in the book Dastan-i-Mughlia, which, when read would make the blood of any self-respecting Muslim boil. In the resolution it was further stated that this book constituted a conspiracy against Islamic Society and that it should be immediately forfeited-especially since this book was contrary to the facts and truths of history. - ' In this meeting, by means of another resolution, it was decided to found a society by the name of Majlis-e-Tabafaz-e-Namoos-e-Islaf (Society for the protection of the honour of forefathers) that would censor all those people who distorted Islamic history. While speaking at this occasion, the Chairman Maulana Abdus Sattar Niazi said that the purpose of making author of Fatawa-e- Alamgiri, Aurangzeb Alamgir (Rehmat Ullah %lab), a target for vilification, was none other than to deliver a sharp blow on the basic tenets of the Islamic faith. Consequently it was the duty of every Pakistani that he should censor each such filthy mind that conspired against a person such as Aurangzeb Alamgir (Rehmat Ullah `Eleh).
' Dr. Syed Abdullah said that it was an urgent necessity that this wave that had made or ancestors a target of vilification and that had been generated by so called Mussalmans needed immediate counteraction. In this connection he strongly supported the resolution on the formation of the Majlis-e-Tahafaz-e-Namoos-e-Islaf.
' Chaudhry Abdul Hamid, in his speech demanding the forfeiture of the book "Dastan-i-Mughlia", said that these days Islam was being attacked from various directions and in various manners, consequently it was necessary that such steps should be taken that no one should have courage to say anything against or forefathers. Mufti Abdul Ghani Shah and Chaudhry Muhammad Amin said in their speeches that the book Dastan-i-Mughlia was a shameful conspiracy against Islamic Society and demanded its forfeiture."
12. As regards this news item the objection is on the following sentence : "Dastan-i-Mughlia is a shameful conspiracy against Islamic Society and should be forfeited."
12. The plaintiffs have claimed the damages as follows :- {{TABLE}} Rs, Plaintiff No. 1 ... 3,50,000 Plaintiff No, 2 ..< 2,50,000 {{TABLE}} ' Both the plaintiffs have claimed costs and interest.
14. The defendants in their joint written statement have admitted the publication of the two articles and the news item. The defendants have however, denied the various averments made in the plaint by the plaintiffs and have further pleaded that they have published the articles, and the news item in national interest, in good faith with bona fide intention. They have denied that they had any malice against the plaintiffs. They have also taken the plea of fair criticism.
' I propose to deal with their defence in detail while dealing with each alleged defamatory statement separately for many of the statements impugned as defamatory were not questioned during the course of arguments by the learned counsel for the plaintiffs.
15. The defendants have denied that the plaintiffs have suffered any damages or are entitled to the same.
16. On the pleadings of the parties the following issues were framed by the Court on 31-8-1970.
'(1) Whether the material complained of published in `Nawa-i-Waqt' is defamatory of the plaintiffs or of any of them ?
(2) If so, whether this material was published in good faith and in National/Public interest and whether this would amount to fair comment ?
(3) Relief ?
17. Plaintiff No, 2 (Exh. 5) examined himself in support of his claim, Farman Fatehpuri (Exh. 6) and one Saleem (Exh. 6-A). In defence the defendant No, 3 examined himself.
18. In his deposition plaintiff No, 2 has stated that he was an Assistant Professor, and also had literary persuits as a prose-writer and a poet. He claimed that he was author of for books namely :
(i) Teesha-e-Lafz, a collection of poems.
(ii) Tahzeeb-e-Takhliq, a collection on articles on literature and culture.
(iii) Maghreb Kai Tanqeedi Asool.
(iv) Mura-qa`-e-Adab, for Intermediate Urdu Course for Punjab University.
' He also claimed that he translated the following books. "(a) Dastan-e-Mughalia.
(b) Jadeed Amrici Novel Nighar.
(c) Ustadan-e-Khak."
' He further deposed that in the year 1968 he was General Secretary of Halqa-eArbab-e-Zok, and also Founder Member of the Pakistan's Writers Guild and Pakistan Thinkers Forum. He further stated that `Storio de Mogor' was written by Niecolae Manucci and was translated into English by William Irvine of Regal Civil Service and that the English version was published for the Government of India by Asiatic Society in the year 1906. He also deposed that he translated extracts from Volume II of the book. He produced the book in two Volumes (Exhs. 5/1 and 5/2) and also the translation written by him. (Exh. 5/3). He further deposed that Urdu translation was literal verbatim translation of the English book but only selections had been made from Volume II. According to him selection of the extracts was made by plaintiff No. 1, who had commissioned him to translate the selections. He claimed that he had made a fair translation of the extracts and that the views expressed in the book were those of Manucci and not his personal views. He however, stated that he had no set views on Aurangzeb as Mughal Emperor as, according to him, he was not a student of history, but, he stated that like all monarchs Aurangzeb had good qualities as well as weaknesses. He claimed that the book had won a prize from the National Book Centre, which has been established by the Government of Pakistan to work for book development and in support he produced the certificate (Exh. 5/4). He claimed that article (Exh. 5/5) contained defamatory matters concerning him and plaintiff No. 1. He pointed out in his deposition the following statements as defamatory.
"(i) The first allegation was that we wanted to establish red and white influence in Pakistan. By red is meant Communist and by white the Imperialist.
(ii) The second allegation is that, I am 'so-called Pakistani', but not Pakistani in fact.
(iii) The third allegations is, that book has been published to damage the image of Aurangzeb by attacking his character.
(iv) The fourth allegation is, that, I have translated only those portions from Storio de Mogor deliberately which are against Aurangzeb.
(v) The fifth allegation is, that I have taken shelter under the Minars of Badshahi Mosque but I have attempted to excavate the foundations of these Minars to make them hollow.
(vi) The sixth allegation is, that the author continues to suggest that it appears to him that the Urdu translation has been written by a son of Shewaji or a Mahasha.
(vii) The seventh allegation is, that, the author has called him Mulk Raj Sharma i,e, a bigoted Hindu, and hostile to Muslims.
(viii) The eighth allegation is, that I have been called 'so-called Muslim' and a 'so-called Pakistani', as if I am not Muslim and non-Pakistani."
' In Article (Exh. 5/6) the witness pointed out the following objectionable portion : "(i) An allegation has been made in this article that I belong to a group which says that Islam is dead. That when it was alive its civilization and culture were disgraceful. It has been alleged that I have selected only those portions of the book of Manucci which are derogatory to Aurangzeb, but this allegation is not true."
' He stated that on account of this publication there was a meeting in Lahore in which the writers, educationists and literary artists and prominent citizens denounced him as a traitor and condemned him for writing the book, and demanded forfeiture of the book. The news item of this meeting was published in the paper of 8th October 1968 (Exh. 5/7). He claimed that it was alleged in the article that his purpose in bringing out the publication was to smash the image of Aurangzeb and to destroy Islamic values and, therefore it was concluded that, he had a filthy mind. He claimed that not a single allegation made in the article was true. He specifically stated that it was incorrect that he had translated only such portions of the book as was derogatory to Aurangzeb.
He, however, stated that his assignment was to translate such portions of the English book of which transcript had been supplied to him by plaintiff No. 1. .
' According to him as a result of publications he personally suffered for he was not welcomed in literary circles and the publishers. Hesitated to publish his works and the publications also affected his good will as a literary person. He claimed that he suffered nervous break-down, loss of sleep.
According to him his health was also affected by the publications.
' He claimed that in the work he had translated, he had written a preface in which he had warned the readers to examine the contents of the translated book with caution.
' In cross-examination he admitted that the portions translated by him included the material derogatory to Aurangzeb but explained that it would be true of any book on history of kings and monarchs. He stated that in the year 1968 his monthly emoluments were Rs, 900 but at the time of deposition i,e, on 22-8-1945 his salary was Rs, 1,500. He denied the suggestion that many complimentary references to Aurangzeb in the English translation had been omitted in its Urdu translation. He, however, admitted that at the time of translation he had not read the English translation.
' Mr. Saleem Ahmad (Exh. 6), stated that he was author and writer in Urdu language and also a dramatist, and that plaintiff No, 2 was keeping high position in the literary world. According to the witness plaintiff No, 2 was renounced as a poet and a critic and was a good Muslim. He produced a book called "Madha-e-Rasool" (Exh. 6/1), wherein appeared three Naats written by plaintiff No, 2, in support of statement that plaintiff No, 2 had a religious mind. According to him several allegations made in the article against the plaintiffs were false. I propose to deal with his evidence later while dealing with the specific allegations.
' Mr. Farman Fatehpuri (Exh. 6), stated that he was M. A., Ph. D., D. Litt., Urdu Literature and Assistant Professor of Urdu at the University of Karachi. He further stated that he was author of not less than 15 books. He has also stated that he knew plaintiff No, 2, who was a man of literature and who enjoyed a very high position in the literary circle. According to this witness, plaintiff No, 2 was a man of religious mind and he (the witness) knew of no activity on the part of plaintiff No, 2 which could lower him down in the estimation of the witness. He has also stated that on reading the book it was not possible to conclude or opine that it was against the interest of the country or against Islam. I would further discuss his evidence while discussing the statement impugned as defamatory and/or the issues.
19. Mr. Majid Nizami (Exh. 7), inter alia stated that he had neither seen nor met plaintiff No,
2. He admitted the publication of two articles and the news item and also produced photostat copies of 9 Articles (Exh. 7/1 to 7/9) that appeared in different newspapers about the book, translation.
' According to him the controversy had arisen because in the book Aurangzeb was attacked. He stated that Aurangzeb was regarded not only as a monarch but as a religious reformer and the last defender of the faith in the sub-continent. He . Further stated that Aurangzeb was greatly respected and revered. He accepted the responsibility for publication of the Article (Exh. 5/5). He pleaded that this was a case of fair comment and that the newspaper would have failed in its duty if he had not published the same. He however, pleaded that the publication was without any malice or enmity towards any person. I propose to deal further with his evidence while discussing the impugned statements.
20. I have heard Mr. Kamal Azfar, Advocate for the plaintiffs and Mr. Mushir Ahmed Pesh Imam, Advocate for the defendants.
' In view of the death of plaintiff No. 1 and abatement of cause of action, Mr. Kamal Azfar did not discuss those alleged defamatory statements which concerned plaintiff No. 1.
' After discussing various statements which according to plaintiff No, 2 were defamatory the learned counsel stated that he would press the following statements in the two articles and the news item which, according to him, were either per se defamatory or were so by innuendo do. In first article dated 3-9-1968 (Exh. 5/5) : "Expressly.-
(1) Plaintiff No, 2 is a so-called Pakistani Muslim who has fulfilled the role of Mulk Raj Sharma.
(2) It seems that this book has not been published by a Pakistani but by some offspring of Shivaji and its translator is a Mahasha.
(3) Shivaji ki Pakistani Aulad "in title refers to plaintiff No, 2". By Innuendo
(1) Who are the malevolent and evil-natured ?
(2) "Son" of Pakistan.
(3) It is unfortunate that the privilege of defaming the Muslim King should have been granted to a 'son' of Pakistan even more than to the Hindus or English. However, much we may lament this is insufficient."
' Mr. Kamal Azfar also challenged the following statement in the first article (Exh. 5/5) as defamatory of plaintiff No, 2 by necessary implication : "(1) Let us bemoan this new admixture of red and green (i,e, plaintiff No, 2) who is seem crawling on the thoroughfares of Halqa-eArbab-e-Zauq."
' Mr. Kamal Azfar questioned the following statements in the second article (Exh. 5/6) dated 25-9- 1968, as defamatory : "(1) Plaintiff No, 2 is a filth-loving pornographer. (2) Our dishonest Pakistani Scholar."
' Mr. Kamal Azfar questioned the following statements in the second article (Exh. 5/6) dated 25-9- 1968, as unfair.
"(1) Already angered at the misconduct of his sister, Aurangzeb shortened her life by poison. (Note plaintiff No, 2 has stated in preface that is incorrect).
(2) Incorrect statement in the article that Aurangzeb was described as a debauch and womanizer.
(3) There could have been built in the translation but they have be4n reproduced exactly, may with even greater amplitude which had displayed mischievousness of or Pakistani Scholar (plaintiff No, 2).
(4) While translating such things they could have been omitted but they have been reproduced exactly in fact with greater clarity than the originals and no worthwhile purpose has been served by such an action.
(5) Today the organised manner in which an attempt is being made to make Muslims lose their self-respect and the dubious and scientific was in which national enthusiasms are being killed and they are being humiliated.
' News item dated 8-10-1968 (Exh. 5/7) : "(1) Dastan-e-Mughlia is a shameful conspiracy against Islamic Society and should be forfeited."
21. The articles complained of have to be examined in the light of the following principles of law of libel. These principles have been taken from the English law as well as from the law in the sub- continent for the law of libel appears to be same in all these countries.
(1) That a matter will be deemed to be defamatory if it exposes the plaintiff to hatred, contempt, ridicule or tends to injure him in his profession or trade.
' I may quote hereinbelow a passage from Halsbury's Laws of England, Third Edition, Vol. 24, page 19, paragraph 40, which reads as follows "A statement is defamatory of a person of whom it is published if, broadly speaking, it is calculated to lower him in the estimation of right-thinking members of the community or to cause him to be shunned or avoided or expose him to hatred, contempt, or ridicule ; or to disparage him in his office, profession or calling."
' The learned author in support of the above statement has placed reliance amongst other decisions, on the decision of the House of Lords in Sim v. Stretch (I), wherein Lord Atkin at page 1240 said as follows :- "Judges and textbook writers alike have found difficulty in defining with precision the word "defamatory". The conventional phrase exposing the plaintiff to hatred, ridicule and contempt is probably too narrow. The question is complicated by having to consider the person or class of persons whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in present case the test: would the words tend to lower the plaintiff in the estimation of right thinking members of society generally."
' I may also refer to a decision of or own High Court namely, American Life Insurance Company v. M.
S. Khawaja (2), wherein Faruqui, J., says at page 574 of the report as follows :- "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, {{FOOT NOTE}}
(1) (1936) 2 All E R 1237 (2) PLD 1960 Kar, 568 {{FOOT NOTE}} ' 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 or excuse. A matter will be deemed to be defamatory if it exposes the: plaintiff to hatred, contempt, ridicule, or tends to injure him in his profession or trade.
(ii) That a publication should not go beyond the limits of a fair comment in the subject-matter discussed in the publication.
' Why freedom of free comment is allowed in a free society can be stated in the words of Crompton, J., in Campbell v. Spettiswoods (11 :- "Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, or the proceedings in Courts of Justice, or in Parliament, or the publication of a Scheme, or literary work. But it is always to be left to the jury (in or country to the Court) to say whether the publication has gone beyond the limits of a fair comment on the subject-matter discussed."
(iii) That any criticism is fair comment if it is in the opinion of Court, not beyond what any fair man, however prejudiced, or however strong his C opinion may be, would say in criticising a work.
' A fair, honest, independent, bold, even exaggerated or wrong criticism is within the accepted limits as was ruled by Lord Esher M. R. In Marivale v. Carson (2). The learned Master of the Rolls opined that "full latitude must be given to the strong opinions and even to the prejudices of a fair man but there must be nothing beyond opinion and judgment". The learned Lord further opined that "1 think myself that even gross exaggeration would not necessarily make the criticism unfair. However wrong, however, prejudice the criticism, all that may be within the limit".
' I may also quote Underhill from his book entitled the Law of Torts, 3rd Edition, Article 96 :- "Literary Criticism. Thus, if a critic states of a play that it is "dull", vulgar and degraded", and relies on the defence of fair comment, he will succeed if this is an expression of honest opinion, even though the comment be not such a jury might think a just or reasonable appreciation of the play McQuire v. Mesteru Morning News (1903)2 K B 100.
' In Murlidhar feramdass v. Narayandas (3), Fawcett, J. C., in his separate opinion followed the following opinion of Lord Esher M. R., in Marivale v. Carson :- "Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair men would have made such a comment Mere exaggeration, or even gross exaggeration would not make this comment unfair." {{FOOT NOTE}}
(1) (1863) 3 B & S 769 (2) (1886) 90 All E R 264
(3) AIR 1940 Sind 85 {{FOOT NOTE}} ' A Special Bench of Bombay High Court in Surajmal B. Mehta v. B. G. Horniman and others (1), placed reliance on the following opinion of Collains M. R. In Diqbi v. Financial News Limited (2) : "Comment, in order to be fair must be based upon facts, and if a defendant cannot show that his comments contain no misstatements of facts, he cannot prove a defence of fair comment. The usual way to begin such a plea is by asserting that the facts on which the comment is based are true, that is, that the defendant has made no misstatements in formulating the materials upon which he has commented. If the defendant makes a misstatement of any of the facts upon which he comments it at one negatives the possibility of his comment being fair."
' And also on the opinion of Gozeno-Hardy M. R. In Hunt v. Star Newspaper Company (3)
"But there still remains the question whether, if, and only if, the facts' are substantially true, the comment made by the defendants, based upon those true facts, was fair and such as might, in the opinion of the Jury, be reasonably made, I cannot do better than adopt the language of Kenedy, J., in Joynt v. Cycle Trade Publishing Co. (1904) 2 IC B 292. The comment must not misstate facts because a comment cannot be fair which is built upon facts which are not truly stated and further it must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation."
' Lastly, I may refer to Purushottam Vijay of Indore v. The State (4). It was said therein : "16.- In principle, or law on the subject is the same. On the other hand, the statement of facts need only be substantially correct and need not be miscroscopically or photographically true, nor can the plaintiff in a civil suit or the prosecutor in a criminal case, fasten himself on to an inaccuracy in the detail, unless that detail itself is such as to make substantial difference to the case. As stated in Surajmal B. Mehta v. B. G. Morniman 47 Ind. {{FOOT NOTE}} Cas. 449 AIR 1917 Bom. 62 {{FOOT NOTE}} "While a journalist is bound to comment on public questions with care, reason and judgment, he is not necessarily deprived of his privilege merely because there are slight unimportant deviations from absolute accuracy of statement, where those deviations do not affect the general fairness of the comment. The articles must be considered rather in their entirety than by separate insistence on isolated passages, and the Court must decide what impression would be produced on the mind of an unprejudiced reader, who knowing nothing of the matter before hand, read the article straight throughout."
' Courts, in fact, have gone to the extent of saying that even an exaggeration will not by itself disentitle the accused or the defendant from this defence. In Murlidhar v. Narayandas (5), it was observed :- "Mere exaggeration or even gross exaggeration does not make a comment {{FOOT NOTE}}
(1) AIR 1917 Born. 62 (2) (1907) 1 K B 502
(3) (1908) 2 K B 309 (4) AIR 1961 Madh. Pra. 205
(5) 27 I C 205=A R 1914 Sind 85 {{FOOT NOTE}} ' unfair. Where in a newspaper report the main aspersion of the accused against the complainant is true, the fact that there is some exaggeration or departure from strict truth does not deprive the accused of the protection provided in Exception III to section 499, Indian Penal Code."
' I may also refer here to a decision of this Court in Mr.
0. M. Qarni v. Mir Khalilur Rehman and 4 others (1), wherein Fakhruddin G. Ebrahim, J., at page 384 of the report stated the rule that the defence of fair comment does not extend to cover misstatements of facts, much less false assertion of facts, however, bona fide.
(iv) That a criticism is not fair criticism where the author is attacked apart from the work or where the critic imputes to the author that he has written what he was not, that is not a question of criticism at all. (See : the opinion of Bowen, L. J., in Marivale v. Carson. It is one thing to say that a work has a bad tendency, that is a matter of opinion. But to say of a work that it contains what it does not would not be an expression of opinion but a misstatement of fact, therefore, it would not be fair criticism to impute a man that he has written what he has not. It is not permissible to make personal imputations not arising out of the subject-matter or not based on facts. Here it will be worthwhile to reproduce the opinion of Lord Tenterden, C. J. In Macloed v. Wakley (2) : "Whatever is fair, and can be reasonably said of the works of authors or of themselves, as connected with their works, is not actionable, unless it appears that, under the pretext of criticising the works, the defendant takes an opportunity of attacking the character of the author: then it will be a libel."
' Hamoodur Rahman, J. (as he then was in Saddat Khaialy, Reporter ("Kohistan" Daily and others v.
The State and Shama Overseas (Private) Ltd. (3), at p. 461 of the report negatived the plea of 'fair comment' when he found that the impugned article attributed the basest possible motive in the Bold heading and caption of the articles".
' I may again quote Underhill from his book entitled The Law of Torts, 3rd Edition, Article 96 : "So, too, criticism of a literary work must not be used as a cloak for mere invective or personal imputations not arising out of the subject-matter or based on fact. Statements of this kind are not comment on a literary work and are libellous if they are defamatory and not true Thomas v.
Bradhury Agnew Co. (1906) 2 K B 627". And in Dakhyl v. Libauchere (190&) 2 K B 325 Lord Atkinson said: 'A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts. In other words in my view if it be a reasonable inference from those facts.
Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determination of the Judge but if he should rule that this inference is capable of being reasonably drawn it is for the jury to determine whether in that particular case it ought to be drawn."
(v) The word 'fair' used in the expression fair comment has no definition' in law but has to be given its ordinary meaning. However, the wore {{FOOT NOTE}}
(1) PLD 1975 Kar. 379 (2) (1828) 3 C & P 311
(3) PLD 1962 SC 457 {{FOOT NOTE}} ' fair embraces the meaning of honest and also of relevance. (See PLD 1960 Kar. 568 at 578.
Further, if in criticising the conduct of a man in relation to a matter of public interest the writer gone on to impute to him base and sordid motives, where being no facts to warrant the imputation the comment cannot be said to be `fair' and therefore, the defence of `fair comment' cannot be maintained in an action for libel. [See : Joynt v. Cycle Trade Publishing Company (1)].
(vi) That once the words are prima facie defamatory the burden of proof of the defence of fair comment rests on the defendant.
I may here reproduce a passage from Halsbury's Laws of England. ,6, Third Edition, Vol. 24, page 75 paragraph 127 hereinbelow : "The burden of proof in this respect is on the defendant. He must not only establish that the matter which he defends as comment is comment, and is comment on a matter of public interest (See : Peter Walker & Son Ltd. v. Medgson (1909) 1 K B 239, C. A. p. 249, but also that it is not founded on material misstatements of facts in the so-called comment. On the other hand, a comment on inaccurate statements made by a witness in Judicial proceedings may be fair comment if the statements are fairly and accurately reported, (See : Great v. Odhams Press Ltd., (1958) 2 All E R 462, C. A.)". Where in jury found words were untrue but were fair comment ; findings were held not inconsistent in the circumstances."
' The same rule has been laid down by Faruqui, J., in American Life Insurance Company v. M. S. Khawaja (2), in the following words : "If the defendant cannot show that his comments contain no misstatements of fact he cannot prove a defence of fair comment."
22. Before I proceed to examine whether the statements challenged as defamatory are so or not, I may state that Aurangzeb is considered by the Muslims of the sub-continent to be one of the most pious Muslim Emperor of India whose entire period of rule was devoted to the cause of Islam and who is generally held in same esteem in which a Muslim saint is held. I would not hesitate in sharing the view generally held by the Muslims of the sub-continent that Aurangzeb was a crusader in the sub-continent but for him the fate of the Muslims in the Indian sub-continent might have been the same as that of the Muslims in Spain. It would therefore, be proper to keep the above-stated place of Aurangzeb in or history in view, while examining the statements contained in the Articles (Exhs.
5/5, 5/6, and 5/7) and impugned as defamatory in the present suit.
23. Having already stated the principles of law that may be attracted in the present case and generally reviewed the oral evidence led on behalf of the plaintiff I would now proceed to decide the issues. '
"Issue No, I :"
24. Since the learned counsel for plaintiff No, 2 has questioned the statements contained in paragraph 20 hereof as defamatory of plaintiff No, 2, I would, therefore examine only those statements.
25. The first statement to which the learned counsel for plaintiff No, 2 has taken exception is that plaintiff No, 2 is described in the article (Exh. 5/5) (1) (1904) 2 K B 292 (2) PLD 1960 Kar. 568 as 'so- called Pakistani Muslim' and article alleges that he has fulfilled the role of `Mulk Raj Sharma'.
26. I may at the very outset state that an artist or writer, author, literary critic or poet or even a translator should not be oversensitive for what he offers to general public is either approved, appreciated, or disapproved or deprecated and the same would depend on the place, people, society and where the work of literature or art etc. Is offered.
27. No doubt the writer of the article has called the plaintiff No, 2 as a 'so-called Pakistani Muslim', but if the allegation is looked in the context of the place, society, people and time where, in which, and when the translation was done by plaintiff No, 2, and the book in Urdu published by the deceased plaintiff No. 1 the same may be considered by some if not by many Pakistani, the translator or the publisher was not a true Pakistani from their point of view for there was already an Urdu translation by a Hindu in existence and a Pakistani Muslim could have asked to himself the question why a Muslim in Pakistan should translate a book into Urdu which was admittedly not only biased against Aurangzeb but is also considered, by Muslims in general, untrue of several aspects of the life of Emperor Aurangzeb who command the highest respect for his piety, saintly disposition and service to Muslims of the Sub-Continent and who is regarded not only as a monarch but also a religious and social reformer and the last defender of the Muslim faith in Sub-Continent, and the publication of the translation whereof in pre-Partition days was considered as an effort by the Hindus to depict one of the most pious Muslim rules as cruel immoral, and unjust. Therefore, any Muslim could have asked to himself the further question: was the translation and publication in Urdu, by Pakistani Muslims, to give credence to a book which was written by a foreigner without much credibility and which was translated by a non-Muslim during the period of British rule when the movement for conversion of Muslims to Hindu faith was in full swing and which a Muslim in even those days did not care to translate. Could not therefore a critic or Muslim in Pakistan think and express that what a bigoted Hindu only could do or did during the days of `Shudhi Movement' and British rule, Muslims did in Pakistan. It may not be out of place to mention here that plaintiff No, 2's own witness Saleem Ahmed admitted in his evidence that masses held Aurangzeb in high esteem and they got emotionally upset when he was criticised. In my opinion, therefore, it was a matter of honest opinion if the defendant No, 4 called plaintiff No, 2 'so-called Pakistani Muslim' and in my opinion the author of the article was entitled to hold the same. Further, if it is said that plaintiff No, 2 has played the same role as was played by `Mulk Raj Sharma' during the `Shudhi Movement', it would not, in my opinion, be defamatory of plaintiff No, 2 for it is again a matter of honest opinion.
In any case it would fall within the permissive limits of fair criticism. In his evidence plaintiff No, 2 had made a grievance that defendant No, 4 had called him another `Mulk Raj Sharma' that is; a bigoted Hindu and hostile to Muslims. But that is the plaintiff No, 2's own understanding. To my mind he was called another `Mulk Raj Sharma' not because he was considered to be a bigoted Hindu or hostile to Muslims but because he consciously or unconsciously played the same role as played by `Mulk Raj Sharma'. Plaintiff No, 2 also made a grievance in his evidence that by calling him a 'so- called Pakistani Muslim' he was portrayed as a non-Muslim. I have already stated that what was said or intended to be said and what was conveyed was that a true Pakistani or true Muslim would not have translated the book into Urdu in Pakistan and that again is a matter of opinion and in such a case, it cannot be said that defendant No, 4 exceeded his right of fair criticism.
28. The second objection which has been taken is to the statement that the book has not been published by a Pakistani but by some offspring of Shivaji and its translator is a `Mahasha'. So far first part is concerned I need not deal with it, for, in my opinion, it refers to plaintiff No. 1 who is dead.
So far as second part is concerned the objection is that the translator is called a `Mahasha'.
' The plaintiff has not stated in his evidence that what he understood by the word `Mahasha'.
However, Farman Fatehpuri has deposed that the expression `Mahasha' used for plaintiff No, 2 means a Hindu and according to him it is attributed to a `Pandit' who is infamous. He however, in cross-examination stated the word `Mahasha' means 'Big man', although he denied the suggestion that it means 'Big thing'.
' According to Saleem Ahmed, the word `Mahasha' means a Hindu. He also admitted that `Mahasha' literarily means big man.
According to `Ferozul Lughat `Urdu Jamaa, New Edition, 1964, page 1181, the word `Mahasha' means, `Aria Samaji Hindu', 'name of one of the son of Krishanji. There is no evidence as to the belief, ideas, aims and g objects of an Aria Samaji Hindu. It is common knowledge as well as mentioned in Exh.
7/13 that Aria Samaji Hindus were on the forefront of the `Shudhi Movement'. Therefore, the use and meaning of this word has to be understood in the same context in which, as previously discussed, the expressions have been understood.
29. So far as the allegation that the plaintiff has been called in the sub-title of the article Exh. 5/5 `Shivaji ki Pakistani Aulad', I am of the opinion that it has reference to plaintiff No. 1 and not plaintiff No, 2.
' No doubt defendant No, 3 has accepted in his evidence that it refers to plaintiff No, 2, but the expression `Shivaji ki Pakistani Aulad' used in the sub-title when is seen in the context of the text of the article, it is clear that it refers to plaintiff No. 1 only. If the author of the article had admitted that the impugned statement has reference to plaintiff No, 2 that would have made a difference. In any case, in my opinion the use of this expression has to be seen in the same context in which the expression `so-called Pakistani Muslim' and 'Another Mulk Raj Sharma' have been used understood, and explained hereinbefore.
30. So far as the statements complained of as defamatory by innuendo in the article Exh. 5/5 are concerned it would suffice to say that plaintiff No, 2 has not made any grievance of the same in his evidence and therefore, it is unnecessary to discuss them here.
31. Now, I would take up the following statement which is termed as defamatory of plaintiff No, 2 by necessary implication.
"Let us bemoan this new admixture of red and green (i,e, plaintiff No, 2) who is seen crawling on the thoroughfares of Halqa-e-Arbab-eZauq."
' Firstly, in my opinion, it is a general statement which indicated that people of red and green straps or views were seen on the through fares of Halqa-e-Arbab-e-Zauq, but if it at all has a reference to plaintiff No, 2 then it is used in the sense that he possesses views represented by two shades or colours. It is in evidence of plaintiff No, 2, that the uses of the word `Surkha' (red) by Nawa-i-Waqt connotes attitude towards left. He in cross-examination admitted that he held progressive views though he denied that he was a Communist. However, Saleem Ahmed stated that by the word `Surkha' which appeared in the article (Exh. 5/5) he understood as `Communist' while by the word 'White' he understood 'Imperialism' and by the expression `Sabze Mahool' he understood it to refer to 'Islamic society'. Assuming that the impugned statement referred to plaintiff No, 2, it is admitted fact that he possessed progressive views which are said to be possessed by `Communist' too. It is also admitted fact that he was written a book called `Madah-i-Rasoor that is, `in praise of the Prophet of Islam' which showed that he had religious bent of mind too. Thus if he was called as `Admixture of red and green' this could not be totally a misstatement ; at best it may be termed partly incorrect statement that too if the meaning of the word `red' has the meaning as ascribed to it by Saleem Ahmed. The counsel for the plaintiff himself termed it as ambiguous statement. In any case, referring to plaintiff No, 2 as `red' can be termed exaggeration but the same, in my opinion, would come within the rule laid down in the case of Murlidhar.
32. As regards the statement contained in Article 5/6 and termed as `unfair criticism' it would suffice to say that firstly, if the statements impugned as unfair criticism are looked in the context of the whole article (Exh. 5/6) the same would appear to be fair comment and would fall within the rule laid down in Mc Quire v. Western Morning News (1), wherein a critic had called a play as'"dull, vulgar and degraded", and relied on the defence of the fair comment; it was held, that he would succeed, if that was an expression of honest opinion, even though the comment be not such as a jury might think a just or reasonable appreciation of the play. It is nobody's case that the defendant had any malice towards plaintiff No,
2. I have no doubt that the criticism here was honest.
33. Now, I would consider the following statements contained in Exh. 5/6 which are claimed to be defamatory of plaintiff No, 2.
"(1) Our dishonest Pakistani Scholars.
(2) Plaintiff No, 2 is a filth-loving pronographer."
' No doubt in the impugned article plaintiff No, 2 was called, 'a dishonest Pakistani scholar'. But the expression has to be looked into the context in which it is used. It would, therefore, be appropriated, if I reproduce herein below the English translation of the relevant paragraph in which the expression has been used "The most shameful scurrility concerns Roshan Ara Begum Aurangzeb's sympathetic sister. It must be remembered that both Mulk Raj Sharma and William Irvine displayed deference and respect when speaking of these exalted ladies, but or dishonest Pakistani scholar has taken great delight is hurling cheap abuses at them. These could have been omitted in the translation but they have been reproduced exactly, may, with even greater amplitude which has displayed mischievousness of or Pakistani scholar." {{FOOT NOTE}}
(1) (1903) 2 K B 100 {{FOOT NOTE}} ' Now, it is an admitted fact that plaintiff No, 2 had not translated the entire Second Volume of English version of `Storio-de-Mogoe, by William Irvine but translated only about 250 pages out of 1000 pages thereof. His explanation was that the selection of the extract was made by plaintiff No. 1 who commissioned him to translate those selections. Further he admittedly did not translate the explanatory footnotes written by William Irvine in his English translation, wherein he pointed out the mistake and omissions of Manucci. In my view, a general reference to the quality of book or author's prejudice, exaggeration or lies in the preface of the translation was not sufficient. Further, plaintiff No, 2 admitted in the witness-box that, when he read English version of the transcript, he realized that it included material derogatory of Aurangzeb. Nonetheless plaintiff No, 2 translated in Urdu even those portions which were highly objectionable, containing highly prejudicial concoction and which maligned Emperor Aurangzeb, Emperor Shah Jehan and other princess and which were not included by %/bilk Raj Sharma' in his Urdu translation, as stated in Exh. 7/13. It is not only defendant No, 2 alone who was injured in his feeling by the publication of the translation but the people at large had felt so which is manifest by various booklets, pamphlets, letters to Editors exhibited in this case as Exhs, 7/1 to 7/13. In fact in the booklet entitled `Dastan-eMughlia' with sub- title "Nefarious efforts to play with the Milli sentiments of Muslims of Pakistan" published by the Anjuman Shabab-ul-Muslimeen (Exh. 7/13), in chapter 3, questions were asked, which I would quote in extenso here "Why did the translator of "Dastan-e-Mughlia" Sajjad Baqir Rizvi while getting the selected translation published only chose the portion which maligned Aurangzeb ? Why did he delete the explanatory footnotes of William Irvine which pointed out the mistake and omissions of Mannucci?
The false allegations which have been hurled by Manucci on Aurangzeb as regards Murder of Sarnb J. L., the translator by omitting the portion of William Irvine has made an attempt to conceal the truth from the people."
' Although Exh. 7/13 which is in Urdu has not been officially translated into English, a copy of the translation was filed by the learned counsel for the plaintiff which was accepted and since the learned counsel for the plaintiff had no objection to any portion of the English translation I would rely on it and would quote certain portions of the translation which have been compared with the translation of 'Mulk Raj Sharma'. {{TABLE}} Mulk Raj Sharma Sajjad Baqir Rizvi Long live the Saint Monarch of ours" Till to day he is known as mysterious Wali (saint) p.
17. *Thereafter Aurangzeb never wrote any thing about these jewels (p. 18). *Long life to the saint King" till Today people either by sheer Sychophancy or, because he indulged in witchcraft to achieve strange results he is known as accomplished saint. (p. 20). *Aurangz.Eb then never wrote any thing about these jewels about which he had shown such treniendous greed. (p. 22).
Mulk Raj Sharma Sajjad Baqir Rizvi "They feared that these stories may have originated from Aurangzeb in order to discover their trend of mind. (p. 57). *AfterWards be repented benevolence. A few years later in fact Aurangzeb to revert this order. But felt face saving considerations refrained him from so doing. (p. 58). *Therefore he (Aurangzeb) wrote letters to Shahjehan which apparently were full of affection and he had profusely wanted to forgive but Shahjehan knew his Barkhurdar well to pay any heed to his submissions. (p. 103). *When the funeral (procession) reached the grave Aurangzeb began, to humbly pray and weep.
Thus in 1665 A. D. (1666 A. D.) Shahjehan at last went to (eternal) sleep in the hollow of the grave. (p.
118). *Aurangzeb was afraid that a tiger once out of the cage will be more dangerous, so Shivaji will take revenge when freed. (p. 146). *He wanted to know as to which of his officers are faithful to him and who (among them) don't want to see him as a King. (p. 146). *They were afraid that Aurangzeb himself might not started these rumours under a considered plan in order to find out their inclination as they already knew Aurangzeb to be a great .Scholar. (p.
52). *Thereafter he was sorry upon his this large heartedness and few years later he 'wanted to repeal these orders but for consideration of his popularity and because of hypocritic nature he dared not care to change (p. 52). *He started writing such letters which apparently were most loving and in which he begged to be pardoned and assured him to be his well wished but as Aurangzeb's interest vicious had been amply exposed Shahjehan refused to accept his apologies. (pp. 91, 92). *When the corpse was brought at the tomb Aurangzeb said prayer and expressed his utmost faithfulness. He was rubbing his eyes again and again as if he was really weeping. Thus in 1665 A. D.
(actual date 1666 A. D. He achieved his cherished aim because now that father had been buried for whose death he wished for a long time and to finish whose life he had adopted so many measures.
(p. 96). *Aurangzeb was afraid that Shivaji will not waste any chance of taking revenge by force, of the treacheries of Aurangzeb and his (Aurangzeb's) those broken promises which led Shivaji to Jail. (p.
112). *By this Aurangzeb wanted to know (that who.Are those Chiefs (Sardars) that are faithful to him and who are those that *1.0 ____________________________________________ .Ime..
Mulak Raj Sharma Sajjad Baqir Rizvi _________________________________________________ ......e wish him not to be the Monarch. That was a treacher move. By this pretext he could ascertain that who are those persons on whom he can fully depend. (p. 112). {{TABLE}} ' Further, it has not been stated or pointed out that 750 pages which were not translated into Urdu did not contain matters which brought out good qualities and character of Aurangzeb or which contained matters which were more derogatory than those contained in 250 pages translated by plaintiff No, 2, Exh. 5/13 contains a number of instances or omissions from Urdu translation by plaintiff No, 2 of passages from English translation which were more sympathetic to Aurangzeb and which were translated into Urdu even by Mulk Raj Sharma. I may here quote some of such instances: "Shah Jehan had seat Aurangzeb to attack Sharma" because he knew that he is brave and fearless and this was the reason which compelled him to send Aurangzeb to attack Ralakh (Sharma, p. 175, Vol. 1). This Prince (Aurangzeb) was brave and valiant during the days of the war he used to sleep on a mat woven by his own hands He used to sew caps himself and send them to the market for sale and used to say that he lives on earnings by his own hands He used to consume very cheap list for example Carrots, Cabbage, Barley etc. And used to give alms to the poor with an open heart whenever you saw he was engaged in saying his prayers or reciting the Qur'an, all times he had a rosary in his hand on which he used to keep on repeating the name of God as if he had no connection whatsoever with this world " (Sharma, p. 175, Vol. I).
' The King (Aurangzeb) gets up in the mid-night and after which he only sleeps for three hours and immediately after getting up says short prayers which takes one and a half hours. Every year he performs on (.Ix) during which he sleeps on the floor, fasts and distributes alms amongst the poor so that God makes his intentions about acting victory true. But since he has become old now and enemies don't let him do any thing he is taking rest-but in spite of this he does not forgo his routine of mediating and issuing instructions accordingly each morning. In this way it is his routine eat once in twenty-for hours and sleep for only three hours" (Sharma, p. 6, VoI. 1, 3)."
' Therefore, in these circumstances, in my opinion, if plaintiff No, 2 was called a dishonest Pakistani scholar, the same has to he understood in the context of his translation only and to that extent the criticisms was not unfair and would come within the rules laid down in the case cited herein- before.
34. Now, I would take up the second statement in Exh. 5/6 which is impugned as defamatory of plaintiff No, 2 that-is, 'filth-loving pornogropher'. In my opinion., plaintiff No, 2's claim appears to be based on misapprehension. The expression 'the filth-loving pornographer' used in the article has to be understood in the context in which it is used. Therefore, it is necessary to quote the relevant passage which reads as follows :- "The translator took this book in hand as a story and has in the style of the filth-loving pornographers of his time publicly humiliated the daughters and daughter-in-laws of this great but saintly Mughal King and has in this manner attempted to establish his modernity (as a writer).
He should have looked at this book as a student of history, and for this it would have been necessary for him to take into consideration the extent to which Nicolae Manucci was reliable as a historian. Secondly, he should have also considered as to what other writers and scholars have said about Aurangzeb."
' It would appear from the passage quoted above that plaintiff No, 2 has not been called 'a filth- loving pornographer'. What has been stated is that he took the work in the style of those who do the writing work very lightly and without much thinking like story writer. The criticism is of manner in which the translation was undertaken. It is admitted fact that in 250 pages translated in Urdu out of 1000 pages, those portions of English translation have also been selected which are highly derogatory and considered false, and baseless and relate to the family life of the Emperor, his sister and princess and while other portions showing his good and noble qualities have not been included therein. Therefore, in my opinion, the criticism would come within the purview of fair comment if looked in the context in which it was made. In any case, I am of the view, that the case falls within the limits of fair comment and come within the rule laid down in the cases cited hereinbefore.
35. As regards the 'statement contained in Exh. 5/7, 'that Dastan-eMughlia' is a shameful conspiracy against Islamic society and should be forfeited, it would suffice to say that plaintiff No, 2 made no grievance about this statement in his deposition and in my view, rightly so far firstly, it does not refer to him ; secondly, it does not necessarily imply that plaintiff No, 2 is involved in it ; thirdly, the statement without naming any person, expressed an honest opinion on a publication which has raised a waiver of protests from the public, and made a demand which could in no manner be considered as defamatory of plaintiff No, 2.
36. Lastly, a criticism or comment, like a publication, has to be seen in the context of place, people, society, and time. When the criticism is looked in that context I have no hesitation in holding that the criticism was fair and honest though at places intemperate language has been used which could conveniently be avoided if the strong feelings which the publication of the translation are used could be controlled, but plaintiff No, 2 has to blame himself for arousing those feelings. Now, looking at the impugned statements in the entire context of each of the Articles (Exhs. 5/5, 5/6 and 5/7) and in the light of the principle stated hereinbefore, I do not find them libellous. Accordingly, I decide this issue against plaintiff No 2.
' Issue No, 2
37. In view of finding on Issue No. 1, this issue has become redundant. In any case, if my findings on Issue No. 1 were different, and I would have found any statement as defamatory then on the facts and circumstances of the case and in the absence of any claim for special damages any proof thereof, I would have awarded only rupee one as nominal damages.
' Issue No, 3 :
38. I, therefore, dismiss the suit. But in the circumstances of this case, leave the parties to bear their own costs.