' IJ AZ AHMAD, J.---The application dated 18-11-2002 Exh. D-1 was allegedly made by respondent No,1 before the Nazim, Union Council, Jaswal Tehsil and District Chakwal alleging that the appellant/ plaintiff had deprived the lawful owners of their share in the property, the same be got recovered from the appellant and be returned to the lawful owners after convening a punchait.
This allegation made way to the press and was published in the daily newspaper 'Dhan Kahoon'
Chakwal Exh.P-3/1. The appellant instituted a suit for damages on account of defamation under the provisions of. Defamation Ordinance, 2002 alleging that the respondents/defendants had the news published in the newspaper in order to defame the appellant and bring him the defamation resulting in injury to his reputation and lowering him down in the estimation of others. The suit was resisted by the respondents. In reply to paragraph 2 of the plaint, it was averred that the defendants had not had the news published. It was however, admitted that the defendants had made an application before the Nazim. It might have been picked by the newspaper. Issues were framed. The parties led their respective evidence. The suit was dismissed by the learned District Judge, Chakwal vide decree dated 27-5-2004.
2. It is contended by the learned counsel for the appellant that the respondents in their reply to paragraph 2 of the plaint, have not denied the fact that they had made an application before the Nazim alleging that the appellant had usurped the land belonging to his brothers and a nephew; that Khawaja Daniyal Saleem, the Chief Editor of the newspaper 'Dhan Kahoon' appearing as P.W.2 stated that the news Exh. P-3/1 was sent by Aslam Butt, a correspondent of the newspaper who had picked it from the Union Council. The said witness was not cross-examined. Thus, the contents of the statement will be taken to have been admitted by the respondents/defendants; that in the circumstances, the respondents would be termed to be the originator of the news as defined under section 2(dd) of Ordinance, 2002 ibid; that making of the application and its publication in the newspaper, which is read in the locality, having not been denied and that the act of the respondents not falling within the exceptions mentioned in section 5 of the Ordinance ibid, a case of defamation against the actionable stands proved.
3. On the other hand, it is contended by the learned counsel for the respondents that respondent No,1 has passed away. Even if it is admitted that he had the news published, it was his personal wrongful act constituting defamation giving rise to his personal liability for damages which will not devolve on his legal heirs; that respondents Nos. 2 and 3 are not alleged in the plaint to have been a party to the publication in the newspaper, therefore, no decree could be passed against them.
The lis has died with the death of respondent No,1, the appeal be dismissed.
4. We have heard the learned counsel for the parties and also gone through the record.
5. The basic question to be resolved is whether making an application before the Nazim alleging the usurpation of the property by the appellant and praying for its return to rightful owners, would amount to origination of actionable defamation of the appellant; whether the application made by the respondent No,1 has been proved to be false, giving rise to a claim and whether the death of respondent No,1 will terminate the lis and whether in case of his death, a decree could be passed against respondents Nos.2 and 3 or not. The making of the application before the Nazim is not denied by the respondents. P.W.2 has not been cross-examined. Thus, it stands admitted by the respondents that respondent No,1 made an application and it was picked up by the correspondent of the newspaper therefrom.
6. The defamation has been a subject matter of criminal and civil laws simultaneously. It has attracted the liability under both the laws. The culpability and criminality of an act under the Ordinance, 2002 is conditioned with falsehood of the statement, representation or the publication in question. The falsehood of the application made by respondent No,1 does not appear from the record, to have been proved. A distinction has to be drawn between a statement which is not proved and which is explicitly proved to be false, an element missing in the instant case. Moreover this application was made to the Nazim, Union Council for resolution of a dispute. Section 88 of the Punjab Local -Government Ordinance of 2001 reads:-- Function of the Union Council.---
(1) The functions of the Union Council shall be to--
(n) elect an Insaaf Committee which, shall be responsible for the selection of the panel of Conciliators of Musalihat Anjuman for out of Court amicable settlement of disputes.
' It is one of the compulsory functions of Union Council to arrange for alternate amicable settlement of disputes. The application made for redressal of grievance does not constitute defamation. (2007 CLC 941) titled ,"Dr. Mukhtar Ahmad v. Mst. Shamim Hashmi" is relied upon.
7. An offence is committed after many stages are crossed by the offender. When his mental faculties lay out a plan; when he makes the preparation, collects the material, lays a trap; when he takes up the steps, which if not impeded by any extraneous force, will culminate in an offence and lastly comes the successful commission of an offence. The first two stages do not give rise to any criminal liability, the last two, do. Section 2(dd) as introduced by the Punjab Amendment Act VIII of 2012 lays down the definition of the originator of a defamatory statement or Act. It is the initiator.
Similar is the definition of an Originator given in section 500 P.P.C. Was, respondent No,1 initiator of the publication of the news which he is alleged to be in the plaint. The petitioner has been unable to prove that the making of a complaint was designed to end in its publication in the newspaper. If the destination of the complaint Exh.D-1 made before the. Nazim, Union Council on 18-11-2002 as alleged, was publication in the newspaper on 30-11-2002 Exh.P-3/1, the petitioner has not successfully proved the intermediary steps taken by or on the initiation of respondent No, 1 . The gap between making of the application before the Nazim and its publication denies the element of actionable foreseeable republication. The link between respondent No,1 and the publisher, necessary to make respondent No,1 liable for defamation, is missing. The correspondent of the newspaper who according to P.W.2, broke the news to the newspaper, has not been produced in the witness box. In the absence of proof of a conspiracy between respondent No,1 and the publisher to defame the petitioner, respondent No,1 cannot be held liable for the defamation. The originator shall have a direct link with the accomplisher of the act of defamation. This relationship cannot B be dug out from the hidden extremities of the episode. An originator is sued on account of his vicarious liability with the principal accused, the publisher. The latter has been spared and respondent No,1 is prosecuted on account of grudge based on Talaqnama Exh.D-3. Reliance is placed on "Barrett v. Rosenthal", a 2006 California Supreme Court case concerning online defamation. Respondent No,1 cannot be termed to be the originator of publication and act of defamation.
8. The instant lis relates to an alleged personal wrongful act, giving rise to a personal liability. The lis dies with death of respondent No,1 who died before a decree was passed against him. The maxim "Actio Personalis Mortum Cum Persona" comes into play. It applies in case of death of a plaintiff or defendant, both. Reliance is placed on (1990 CLC 404) titled "Government of Punjab through Secretary, Ministry of Agricultural Lahore and another v. Mst. Kamina and others", (2008 CLC 107) titled "Syed Zaheerul Hassan Jeelani Chandpuri Government of Sindh through Secretary, Local Self- Government, Sindh and 6 others" and (2006 M LD 924 (Lahore) titled "Muhammad Ibrahim v. Irshad Begum and 7 others". No decree can be passed against respondents Nos. 2 and 3 as not even a remotely related act of defamation is attributed to them.
9. The decree passed by the trial Court suffers from no illegality. This appeal sans the merit, is dismissed.