' ROOH-UL-AMIN KHAN, J.---Through instant regular first appeal, appellant Mir Liaq Khan has challenged the judgment and decree of learned Civil Judge-IX, Bannu, dated 25-11-2010, vide which the suit of respondent/plaintiff was decreed to the extent of Rs,5,00,000 ( (five lac).
2. Brief facts of the case are that plaintiff Sarfaraz Jahan, respondent herein, filed a damages suit for recovery of Rs,50,00,000 (fifty lac), against the defendant/appellant herein, to the effect that he belongs to a respectable family of Bannu, District and serving as XEN, in Public Health Department, Bannu, with his full enthusiasm and there is no complaint against him, while defendant made a wrong, against the facts and baseless statement, which was published in daily Ausaf, Rawalpindi, and in Daily Mashriq on 6-3-2006. To this effect the respondent/plaintiff, through his counsel served defendant with a notice asking him for publishing contradiction of the said statement, otherwise he is constrained to file a suit for damages of Rs,10,00,000 on account of mental torture and defamation, but the appellant/defendant did not reply, nor published contradiction in daily newspapers. On 19-3-2006, the defendant was again served with a legal notice by the counsel of the plaintiff, whereby he was again asked to publish contradiction of the defamatory statement, otherwise he will be sued for damages of Rs,50,00,000, but he turned deaf ear. Ultimately, the plaintiff filed suit for recovery of Rs,10,00,000 for mental torture, Rs,10,00,000 for physiological torture and Rs,30,00,000 for defamation. The suit was contested by defendant/appellant through filing written statement, wherein defendant denied the allegations levelled against him, in the plaint and claimed that he being a social worker and press secretary of a political party has dedicated his entire life for the services of peoples and resolving their problems. He denied the receipt of any notice from the respondent/plaintiff. From divergent pleading of the parties, the learned trial court framed as many as 9 issues including relief. Parties led, pro and contra evidence in support of their claims and on conclusion of trial, learned trial court after hearing the parties, decreed the suit in favour of plaintiff to the extent of Rs,5,00,000 (five lac). Dissatisfied from the judgment and decree of the trial court, the appellant, firstly filed civil appeal before the District Judge, Bannu, which was returned to appellant vide order dated 3-3-2011, for presenting it before proper forum. After return, the appellant has filed instant appeal on 10-3-2011, along with an application for condonation of delay.
3. Learned counsel for appellant contended that Defamation Ordinance, 2002, was promulgated on 1-10-2002 and after expiry of its due period, it has not been extended for further period, thus at the time of filing of suit, the Ordinance ibid, was not in the field; that if the court arrived at a conclusion that the Ordinance was alive and subsisting at the time of filing of the suit, then Senior Civil Judge, was not vested with the jurisdiction to entertain the suit, because section 13 of the Defamation Ordinance, 2002, provides that District Courts shall have jurisdiction to try the cases under the Ordinance. At the end learned counsel for appellant made our visit to the pleading and evidence produced by the party and vividly argued that plaintiff has failed to prove any defamatory statement made by the defendant; in fact defendant was not originator of the statement, as published in two local dailies; plaintiff has produced evidence beyond his pleading which being not admissible under the law and should have been ignored by the trial Court. Plaintiff has failed to prove mala fide on the part of the defendant, thus plaintiff is not entitled for any sort of damages.
4. In rebuttal, learned counsel for the respondent/ plaintiff while defending the impugned judgment and decree, passed by Senior Civil Judge, argued that the plaintiff belongs to a respectable family and being a civil servant has occupied a respectable post; that he has served Public Health Engineering Department with zeal and zest; that he has maintained an unblemished and splendid record during his entire service; the press conference held by defendant and publishing in the local dailies was the result of malice and merely to defame the plaintiff in society; that the plaintiff has produced the representative of local daily newspaper and secretary of press club, Bannu, who have supported the version of plaintiff; that the learned trial court was vested with the jurisdiction and suit was competent under section 9, C.P.C.; that there is no illegality, irregularity or jurisdictional defect in the judgment and decree of the trial court. He further contended that the instant appeal is barred by 15 days, thus not maintainable and merit dismissal on this score alone.
5.
We have heard arguments of the learned counsel for the parties and gone through the record with their valuable assistance.
6. Before entering into merits of the case we would like to decide the question of limitation. Record reveals that the suit of the plaintiff was decreed by the trial court vide judgment and decree dated 25-11-2010. The appellant applied for issuance of attested copies of the judgment and decree on 27-11-2010, which was provided to him on 10-12-2010. After eight days i,e, on 18-12-2010, the appellant filed appeal in the court of District Judge, Bannu, which was admitted for regular hearing on 20-12-2011. The record divulged that the learned District Judge tagged the appeal of the appellant with another Civil Appeal bearing No,68/13 of 2010, filed by the present respondent against the same judgment and decree dated 25-11-2010. Both the appeals remained pending for adjudication and ultimately were returned to the appellants for want of pecuniary jurisdiction. The record further reveals that the appellant had filed appeal before the District Judge within eight days of the receipt of the attested copies of judgment and decree. The above stated prompt actions of appellant show his due diligence in pursuing of his case. The District Judge was duty bound and should have returned the appeal to the appellant on the date of presentation or first hearing for lacking pecuniary jurisdiction. In the instant case the appellant had filed appeal in a wrong court on account of mistaken advice tendered by his counsel. Record further depict that the District Judge returned the appeal to the appellant on 3-3-2011 for presenting it before the proper forum. The appellant filed the present appeal before this court on 10-3-2011. The appellant challenged the judgment and decree of the trial court before the District Judge within eight days after getting the attested copies of judgment and decree. Similarly, after return of appeal by the District Judge, the appellant presented it, before this Court within seven days. The above said haste in filing appeal before the District Judge and then and return presenting the same with such a promptitude before this Court indicate that the appellant was bonafidely pursuing his case with due diligence and carefulness, which is sufficient cause for condonation of delay, occurred in lodging of appeal before this Court. In view of the above facts, the delay occurred in filing of the appeal before this court is condoned. Reliance may be placed on case titled "Sherin and 4 others v.
Fazal Muhammad and 4 others" (1995 SCMR 584) and "Karachi Electric Supply Corporation Limited v. Lawari and 4 others" (PLD 2000 Supreme Court 94).
7. The argument of learned counsel for the appellant that the Defamation Ordinance, 2002 was promulgated by the President on 1-10-2002 and the National Assembly has not extended it for further period as stipulated in the proviso of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973, thus stand repealed, unpersuasive.The Defamation Ordinance, 2002 was promulgated on 1-10-2002 under the Provisional Constitutional Order No,1 of 1999 and not under Article 89 of the Constitution of Islamic Republic of Pakistan. Subsection 5 (a) of the Provisional Constitution Amendment Order, 1999 provides that the Ordinance promulgated by the President or Governors of the Provinces shall not be subject to limitation as to its duration prescribed in the Constitution of Islamic Republic of Pakistan, 1973. .Article 270-AA was inserted in the Constitution in the year 2002, which was later on substituted by Constitution (17th Amendment) Act-III of 2003, whereby all the Ordinances issued by the President of Pakistan or Governors of the Provinces were protected, in the following terms:-- "270-AA. Validation and affirmation of laws etc.---(I) The proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including Provisional Constitution Order No,1 of 1999, the Oath of the Office (Judges) Order, 2000 (No,1 of 2000) Chief Executive's Order No,12 of 2002, the amendment made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No,24 of 2002), the Legal Framework (Amendment) Order 2002 (Chief Executive's Order No, 29 of 2002), the Legal Frame Work (Second Amendment) Order 2002 (Chief Executive's Order No,32 of 2002), and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the (late on which this Article comes into force (both days inclusive), having been duly made or accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.
(2) All orders made, proceedings taken, appointment made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any proclamation, President's Orders, Ordinances, Chief Executive's Orders, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
(3) A Proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority."
' In the year 2010, Article 270-AA was again substituted by (eighteenth amendment) Act X 2010, whereby all the laws enumerated in sub-Article 1 were declared as having been made without lawful authority and of no legal effect. However a blanket cover was provided to the laws specified in sub-Article (2) 270 AA, which is reproduced as under:- "270 AA. Declaration and continuance of laws etc.---(1) The proclamation of Emergency of the fourteenth day of October, 1999, the Provisional Constitution Order No,1 of 1999, the Oath of Office (Judges) Order, 2000 (No,1 of 2000), Chief Executive's Order No,12 of 2002, Chief Executive's Order No,19 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No,24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order) No,29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No,32 of 2002), notwithstanding any judgment of any Court including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect.
(2) Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all other laws including President's Order, Acts, Ordinances, Chief Executive's Orders, regulations, enactments, notifications, rules, orders or by-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of October, two thousand and three (both days inclusive) and still in force shall continue to be in force until altered, repealed or amended by the competent authority.
8. The above quoted Article gave validation and affirmation to all the Ordinances issue and promulgated either by President/Chief Executive of Pakistan, or by the Governors of the Provinces.
At the time, when the Defamation Ordinance, 2002 was promulgated, Article 89 of Constitution of Islamic Republic of Pakistan and its operation was under suspension and time limitation of four months, provided therein, for validity of any Ordinance, promulgated by President or Governors of the Provinces was not applicable. Defamation Ordinance, 2002 was issued in pursuance of the proclamation of Emergency dated 14-10-1999 and under the Provisional Constitution Order (1) of 1999 and not under Article 89 of the Constitution of Islamic Republic of Pakistan. From the above discussion it is clear then crystal that the Defamation Ordinance, 2002 remained protected under Article 270-AA of Constitution of Islamic Republic of Pakistan, 1973. The above discussion also demonstrates that the Defamation Ordinance, 2002 is still alive, operative and enforceable.
9. As regard the second argument of the appellant regarding jurisdiction of civil court under section 9, C.P.C. It is observed that history of Tort of Defamation in .Our country has been derived from the English common law. Even before promulgation and introduction of the Defamation Ordinance, 2002 (Amended in 2004), the Defamation laws were actionable before the civil court under section 9 of C.P.C. As mentioned in the preceding Para the Defamation Ordinance, 2002 came into being on 1-10-2002 which was subsequently amended through Defamation Amended Act, 2004. As provided by section 13 of the Ordinance 2002, the District Court shall have the jurisdiction to try the cases under the Ordinance, 2002. Similarly, section 15 provides that appeal against final decision and decree of the trial court shall lie to the High Court, within thirty days and the High Court shall decide the appeal within sixty days. A detail reading of Ordinance, 2002, would divulge that the same does not contain any ouster clause. It has nowhere mentioned in the Ordinance that the jurisdiction of the civil court would be barred in respect of actions against Defamation. Section 13 of the Ordinance, 2002, only prescribed the remedy to enforce the right, without ousting the general jurisdiction of the civil courts. It is settled law that the civil courts, under section 9, C.P.C. Are courts of ultimate jurisdiction and shall continue to assume jurisdiction in respect of all civil matters, unless their jurisdiction are expressly or impliedly barred. Since right against defamation was already existing and actionable under the general law, even prior to the advent of Ordinance, 2002, and the later, though provide a particular remedy without any clause ousting the general jurisdiction of the civil court, therefore, any person aggrieved by any act of defamation has got two remedies. The aggrieved person has to elect one of the two remedies i,e, under civil law or general law, A however, after choosing anyone of the above remedy the other remedy would become completely barred.
1.0. In the instant case, the plaintiff has elected and opted to file the suit under section 9 C.P.C., instead of Ordinance, 2002. The suit is thus maintainable and not barred under the law. The statutory remedy under the Ordinance, 2002 is, however, now barred for the plaintiff as he has exercised his option to pursue the general law remedy under section 9 of Civil Procedure Code.
11. Now adverting to the merit of the case, perusal of record would reveal that the plaintiff has instituted the suit for damages against the defendant to the effect that the defendant held a press conference and issued a statement against the Plaintiff, which was published in two daily newspapers, viz "Ausaf and Mashriq" respectively. Plaintiff produced eight witnesses in support of his claim. P.W. Inayatullah, Reporter of Daily Mashriq appeared as P.W.1. He failed to produce the alleged statement made by the defendant in the press club during his alleged press conference. In his statement he admitted it correct that at the time of press conference he was not personally present in the press club but had received the copy of the statement from the President of the press club. He also admitted it correct that since he was not personally present in the press club, therefore, he is not in a position to tell, that what was spoken in the press conference. He has also admitted it correct that in the published news, no body has been named personally and the defendant has only criticized the Public Health Department. Similarly, P.W.2 Abdus Salam, Reporter Daily Ausaf, also failed to produce the original statement published in the newspaper of Daily Ausaf. He also admitted that during the press conference no body was personally named by the defendant and during the press conference the entire department was criticized. From the statements of the above two witnesses, it could be safely concluded that both the witnesses have not carried the original statement of defendant. They have reported the statement provided to them by the President of press club. They failed to disclose, as to whether the defendant has made such a statement by which any damage has caused to the plaintiff. Mere report of speech published in the newspaper is not admissible in the evidence unless the speech is proved through unimpeachable evidence. It was imperative upon the plaintiff to produce the person, in whose presence such speech has been made by the defendant, or the reporter of the newspaper in whose presence speech had been made and who had sent the report for publishing in the newspaper. The news item without any further proof of what had actually happened through witnesses, is of no value. It is well known that reporters collected the news and information and passed it on to the editor who edited the news item and then published it, and there is every probability that in process the truth may be perverted or garbled.
12. P.Ws. 1 and 2 have produced only photocopies of the newspaper and admittedly are not in possession of the original statement, allegedly provided to them by the President of the press club, or original print of the newspaper. Admittedly, the plaintiff has not submitted any application before the trial court to obtain permission of the court for recording secondary evidence. Even then, the trial court has allowed the plaintiff to produce and exhibit the un-compared Photostat copies of press clippings. This was the duty of the trial court to refuse and not to allow to exhibit the photocopies of the newspaper and excluded such evidence even if no objection to it has taken. A document not admissible in evidence cannot be seen or looked into by the court even if it is exhibited without any objection. In this respect reliance may be placed on case titled "Khan Muhammad Yousaf Khan Khattak v. S/M Ayub and 2 others" (PLD 1.973 Supreme Court 160).
13. It is pertinent to observe here that the instant suit has been filed on the basis of a press statement, published in the newspaper i,e, "Daily Mashriq and Daily Ausaf". The plaintiff has alleged that the above said news were flashed in the newspaper in pursuance of the press conference held by defendant. Amazingly the reporters and editors of the newspapers, who had published the alleged disparaging statement of the defendant, have not been arrayed as defendant in the case, despite the fact that they were necessary parties in the suit.
14. The bare reading of the plaint reveals that the plaintiff has not asserted a single word showing malice on the part of defendant. Neither any malice was alleged in the plaint nor any evidence was produced to this effect. The plaintiff appeared before the trial court and recorded his statement as P.W.6, wherein he stated in unequivocal terms that he has no personal grudge or ill will with the defendant. Similarly, the defendant stated in his statement before the trial court that he has never made any complaint against the plaintiff to Anti-Corruption Establishment or to his departmental head. He also denied the receipt of notice allegedly issued to him before filing of the suit. He also denied that due to his press conference the plaintiff was transferred from Bannu to Civil Secretariat, Peshawar. From the record, it could not be gathered that the defendant entertained any malice against the plaintiff. Similarly, the plaintiff has miserably failed to bring on record an iota of evidence showing any malice or personal vendetta of the defendant against the plaintiff.
When a plea, especially of malice and motive has not been raised in the plaint and is not incorporated in the evidence, seemingly or actually, it will be going too far to presume its existence notionally. In our view the defendant is not liable for the libel complained, published against the plaintiff, by the unimpleaded publishers of newspapers.
15. Most of the evidence produced by the plaintiff pertains to disciplinary proceedings initiated and conducted against him by the department, which have not been alleged in the suit, therefore, we are not intended to consider the same, because, these evidence are beyond the parameter of the plaint. In civil proceedings parties are not allowed to produce evidence beyond the pleadings and if any evidence is produced, would not be looked into, while deciding the suit. Reliance may be placed on case titled "Muhammad lqbal v. Ali Sher" (2008 SCM R 1682), which is reproduced below:-- "When such details were totally lacking in the plaint, Trial Court, after examining the pleadings of the parties, should not have allowed the plaintiff to lead the evidence on the facts not alleged by him in the plaint and even if the evidence was allowed to be recorded by the Trial Court, it should not have been considered as evidence in the case by the Appellate Court and the High Court"
16. The plaintiff claims to have suffered loss of reputation on account of the statement made by the defendant and published by the newspapers, but has not stated as to what immense loss has been caused to him in material terms. It is settled law that the damages for defamation are compensatory and not exemplary and punitive. The plaintiff may never be allowed to make profit for him on account of reputation. In any case the quantum of damages should be determined in proportion to the damages actually suffered by the plaintiff. In the instant case the plaintiff has failed to establish any loss of reputation and entitlement of actual damages. In view of the above discussion and deriving wisdom from the dictum of honourable Supreme Court of Pakistan in case titled "Sheikh Muhammad Rashid v. Majid Nizami and another" (PLD 2002 Supreme. Court 514), we are of the view that in the instant suit no costs or damages to be awarded by way of penalty or punishment.
17. For the reasons discussed above, we do not agree with the findings of the trial court. We are of the view that the plaintiff has failed to substantiate his claim by not proving the actual malice on the part of the defendant. Accordingly, the appeal and application for condonation of delay, filed by the appellant/defendant is hereby allowed. The judgment and decree dated, 25-11-2010, passed by learned Civil Judge-IX, Bannu is set aside, and the suit filed by the respondent/plaintiff is hereby dismissed, with no order as to costs.
(Syed Hasan Azhar Rizvi, J)