RASHEED A. RAZVI, J.--- This is an application under Section 151, CPC filed on behalf of the plaintiff praying that the suit be disposed of after hearing oral arguments of the parties on the two legal issues framed by this Court on 13.4.1995. On that date some seven issues were framed out of which following two issues, according to plaintiff are relevant and will dispose of the entire controversy between the parties.
(i) Whether the impugned publication, is protected by the Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973?
(ii) Whether the plaintiff is entitled for damages? If so, upto what extent?
2. Earlier, this application was heard in the month of November, 1997, but it was not concluded due to my posting at the Circuit Bench for a long time. Thereafter it is being fixed for re-hearing from time to time.
3. The facts relevant for disposal of this application are that the plaintiff is the Chairperson of a political party namely, Pakistan Peoples Party (PPP) and was elected member of the National Assembly from Larkana. The defendant No. 1 is one of the leading newspapers/publication organization, while the defendants Nos. 2 to 5 are Editor in Chief Publisher & Printer and. Corespondent respectively of an English newspaper known as "The News". The case of the plaintiff is that on 23.11.1995 the defendants published a story/article in their above said newspaper with the title "Britain rejects Pakistan Demand to expel Altar written by the defendant No. 5 which article/story as alleged by the plaintiff is malicious, untrue, fabricated, defamatory and without any iota of trust; that on the receipt of a legal notice from the counsel of the plaintiff, the defendants published regrets in the said newspaper on 27.1.1995 which the plaintiff has tiled as annexure ' E' to the plaid. In that retraction it was denied by the defendants that there was any intention to portray the plaintiff in a bad light or to tarnish her reputation as a woman of international standing. It was further stated that." If, however, an impression was conveyed 'The News' offers its regrets." Following is the relevant part of the impugned news items as published on 25.1.1995:- "An informed official disclosed that after her official visit to Britain in November last year, Prime Minister Benazir Bhutto was very angry with the MQM that had organized protest demonstrations at each place she visited during her stay there.
She had met the same treatment from the MQM followers during her visit to Ireland last year.
MQM's behaviour during those two visits definitely contributed to the government's decision to seek Altaf Hussain's expulsion from London, remarked a senior security official.
"The British government has turned down a request from Pakistan seeking the expulsion of the Moharir Qaumi Movement founder Altaf Hussain from that country according to officials and other informed sources. This unprecedented demand from Pakistan was made personally by Prime Minister Benazir Bhutto during her meeting with the visiting British Foreign Secretary Sir Douglas in Islamabad early this month."
4. In reply to the contents of the plaint, the defendant No. 5 namely Kamran Khan has filed his detailed written statement which has been adopted by the other defendants. The defendants No. 5 has denied that he is a so-called investigative reporter and has mentioned several instances to show that he is a reporter having good reputation and excellence. The case of the defendants is than the story published in the daily "The News" Karachi, on 23.1.1995 was related to the affairs of the State and the public acts of the plaintiff as elected Prime Minister and that it did not contain any calumnious remarks on the personal character of the plaintiff; that it was published after due investigation and in good faith without any malicious intention or ulterior motives. The reasons and the basis which prompted the defendant No. 5, write the impugned news items/story are given by him in para 4 of his written statement which is reproduced as. Hereunder:- "A tip from a highly informed individual having close connections both with the government and the British diplomat, in the country made the defendant No. 5 to investigate the matter thoroughly.
The tip from the said source was confirmed by a senior Pakistani Security Official who has strong ties in the plaintiff's office. A Federal Government Official who had prepared a summary on the cases against Altaf Hussain for the plaintiff before she went for the meeting with the British Foreign Secretary had also confirmed the piece of information complained of. Confirmations from the Senior Official sources wee also consistent with the government, public and private position of Altaf Hussain in particular and the MQM in general. In the last week of December the plaintiff had herself told a gathering of the newspapers editors in Karachi that her government's secret services have intercepted a phone call from Altaf Hussain to one of his aiders in Karachi telling him that he wants at-least 10 to 15 dead-bodies daily in the city. This disclosure by the plaintiff is enough to prove that Altaf Hussain was running a terrorist not work form London. At the same time the Sindh Government made an announcement offering head money for the top leaders of the MQM including MQM's Vice-Chairman, Secretary General, Joint Secretary and few other top leaders of MQM. The government further decided that all the MQM detainers will, be tried in prison.
With the background statement above coupled with innumerable statements of the Federal Minister published in the newspapers the defendants No. 5 had every reason to believe the information received by him in the course of his investigation that the plaintiff during her meeting with the British Foreign Secretary had raised the issue of terrorism in Karachi and demanded the expulsion of Altaf Hussain from Britain against whom she claimed to have strong evidence for involvement in terrorism. However, strictly following the normal professional ethics the defendant No. 5 made several calls with British Deputy High :commissioner in Karachi and the Country's Press Office at its High Commissioner in Islamabad, but British diplomats avoided to deny or confirm the story. They remained silent and never asked the defendant No. 5 to disclose the source of his information.
The sources told the defendant No. 5 that since the Pakistan does not have an extradition treaty with the Britain and therefore the matter was discussed under the well-recgonized code of diplomatic confidentiality.
5. Mr. Muhammad A.I Mazhar has argued that the piecemeal decision by the courts of law are never upheld by the superiors Courts and that if the plaintiffs' application is granted, it will amount to a piecemeal decision. It was further contended on behalf of the defendants that the question of entitlement of damages as well as its quantum are both questions of facts and cannot be decided without resorting to the process of recording evidence. Earlier,, Mr: Farooq H. Neek has. Strenuously contended that an affirmative findings on any of the above issues will settle the entire controversy between the parties and that these issues can be decided on oral arguments. He has referred Rule 3 to Order XV of the CPC in support of his contentions and has also relied upon the case-law reported as Abdul Aziz & 18 others v. Muhammad Hussain and others (PLD 1984 Quetta 101) and Muhammad Saleem v. Hafiz Ahmed (PLD 1975 Lah. 425). It was stated that the defendants are willing and interested in leading their evidence and that they may be given an opportunity to place their entire case before this Court.
He has placed reliance on the following cases:
(i) Abdul Aziz and 18 others v. Muhammad Hassan (PLJ 1984 Quetta 81).
(ii) Bashir Ahmed and 8 others v. Aftab Ahmed and others (PLD 1976 Lab. 1433).
(iii) Sindbar Travels (Pvt.) Ltd., Lah. v. PIA Corporation, Lah. (1990 MLD 2049).
(iv) Murtaza Khan PLD 2 others v. Muhammad Zarif (NLR 1991 Civil 399)
(v) Muhammad Yaqoob Khan v. Dalil Khan and 15 others (1993 CLC 633).
6. In the case of Muhammad Saleem (PLD 1975 Lah. 425) petitioner was a defendant in a guardianship matter. He file d an application before the Trial Court praying that the issues pertaining to the jurisdiction be decided first independently of the other issues. That plea was rejected by the learned Trial Court which led to the filing of Civil Revision before the Lahore High Court. It was held by a learned Single Judge of Lahore High. Court Muhammad Afzal Zullah, J (as his Lordship then was ) that it was mandatory for the Trial Court to decide the legal issues pertaining to territorial jurisdiction first in time as provided under second part of Rule 2 to Order XIV, CPC. In the case of Abdul Aziz (PLD 1984 Quetta 101 also reported in PU 1984 Quetta 81), a learned Single Judge of Baluchistan High Court while interpreting Order XIV, CPC., held, inter alia, that where issues of both law and facts are involved in a case and if the Court is of the opinion that the whole case or part of a case can be disposed of on the issues of law only then it shall try the legal issues of law first as preliminary issues. In the case of Bashir Ahmed (PLD 1976 Lahore 1433) the petitioner had approached Lahore High Court after being aggrieved by an order of the Trial Court for not acceding to the prayers of the petitioner to try any decide legal/preliminary issues independently and separately. The civil revision was dismissed by a Single Judge of Lahore High Court on the grounds that it was not possible to dispose of the said legal issues separately from the other issues as similar evidence was required to be led on all the issues.
7. The case of Muhammad Hanif v. Provincial, Election Authority (1982 CLC 1252) relates to an election dispute. In that case a Constitutional .Petition was filed against the order of Election Tribunal on several grounds where it was argued by the advocate for the petitioner before a Division Bench of this Court comprising Zafar Hussain Mirza and Z.C. Villani, JJ (as their Lordships then were) that the legal issues could not be disposed of without recording evidence. It was held that the decisions on these preliminary issues would have effect on the decision on the other issues and that the learned Tribunal should have asked the parties to lead evidence on all the issues and thereafter should have proceeded to decide all the issues including the so-called preliminary issues. In the case of Sindhbad Travels (1990 MLD 2049) a learned single Judge of Lahore High Court held that there are four categories of preliminary issues such as disputes relating to the jurisdiction of the Court, (ii) res judicata (iii) valuation of Court-fee and (iv) the question of limitation and if it is raised on admitted, facts it can be treated as preliminary issues and can be tried Separately from the other issues to save the parties from unnecessary protracted litigation. It was further held that in case if an issue raised a mix question of law and facts then, for its decision, evidence is required to be led and then such issue' cannot be treated as a preliminary legal issued in order to decide it separately. In the case of Murtaza Khan (NLR 1991 Civil 399) it was held by a learned Single Judge of Peshawar High Court Muhammad Bashir Khan Jehangiri (as his lordship then was) that where the issues both of law and fact arise and the Court is of the opinion that the case of any part thereof may he disposed of on the issues of law it shall try those issues first and postpone the other proceedings. Reliance was placed on Order, XIV Rule 2 CPC. In the case of Muhammad Yaqoob Khan (1993 CLC 633) it was held by a learned Single Judge of AJ&K High Court that the issues of law which do not involve inquiry into the fact should be decided first. Before proceedings further, it would be advantageous to reproduce the provisions of Order XIV Rule 2 and Order XV, of Rule .3 CPC which read as follows:- Order XIV, Rule 2:- Issue of law and fact.-- Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first; and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.
Order XV, Rule 3. Partiesat issue. (1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injutice will result from proceedings with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit: Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.
8. It is settled law that the legal issues which go to the root of the subject -matter of suit and do not involve question of fact should be decided first in order to dispose of the whole cause. This in no manner will amount to piecemeal' decision. There may be issues in respect of pecuniary or territorial jurisdiction of the Court seized of such matter or an issue pertaining to limitation or there may be an issue relating to the legal competency of the suit. If no admitted facts, any or all of such issues could be decided thereby saving the Court's time and saving the defendants from protraction of unwarranted litigation, which issues should be decided first .And independent of other disputes involved in the suit. Some of such instances have been referred by the Lahore High Court in the case of Sindhbad Travels (ibid). In the instant case the two preliminary issues under reference do not touch either the question of jurisdiction or of any legal bar to the maintainability of the suit. It is consistently pleaded on behalf of the defendants that the question of protection of Article 19 of the Constitution of 1973 is a mix question of law and fact and I do not see any reason to take a different view.
9. The freedom of press is treated as one of the most essential part of democratic system. It works as a check and balance on the other organs of the government. In case any authority exceeds its power, it is the duty of the press to bring such excess to the knowledge of people at large. It has been regarded as "the mother of all liberties in a democratic society." The need of free press in a democratic system was empahsised by Indian Supreme Court 'In re: Harijai Singh and another (AIR 1997 Supreme Court 73 at 78) in the following words:-.....It is thus needless to emphasise that a free and healthy Press is indispensable to the functioning of a true democracy. In a democratic set up, there has to be an active and intelligent participation of the people in all spheres and affairs of their community as well as the State. It is their right to be kept informed about current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider and form broad opinion about the same and the way in which they are being managed, tackled and administered by the Government and its functionaries. To achieve this objective the people need a clear and trustfully account of events, so that they may form their own opinion and offer their own comments and viewpoints on such matters and issues and select their further course of action. The primary function, therefore, of the Press is to provide comprehensive and objective information of all aspects of the country's political, special, economic and cultural life. It has an educative and mobilising rule to play. It plays an important role in moulding public opinion and can be an instrument of social change...
(Emphasis laid).
10. Our Supreme Court while emphasising the need for a free press have observed mark of caution in the exercise of any such right. In the case of Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 S.C. 823 at 1078), it was observed, inter alia, "The freedom of press is not absolutely unlimited and unfettered." In relation to the Court reporting, it was observed, "If they exceed reasonable limit or limit of fair criticism they became liable to be prosecuted for contempt."
It was further held as follows:- "..This right is one of the pillars of individual liberty, freedom Of speech which the Court have always faithfully upheld in terms of the Constitutional mandate- It may be added that function/duty of a free press is to act as a watch dog and to disseminate correct and fair accounts of the various public events and of other matters in which public may be vitally interested. In the discharge of the above function/duty there may be some occasional lapses on their part which are to be condoned, provided the same do not fall within the ambit of reckless or irresponsible conduct or promoted by malice or any - other ulterior motives. In my view the press besides relying upon Article 19 of the Constitution which provides that every citizen shall have the right of freedom of speech and expression and there shall be freedom of press subject to any reasonable restrictions imposed by law which includes contempt law, may press into service Article 18 of the Constitution which, guarantees freedom of trade, business or profession....
11. It is, therefore, a question of fact which has to be determined at the trial as to what were the limits within which the defendants were required to act and which are those areas where they have exceeded the right of press freedom. The defendants have claimed that they performed their duty to highlight the facts which were being concealed by the government At the same time the plaintiff has denied such allegations being false and baseless and is claiming damagos in the shape of monetary compensation for the loss she has suffered as a result of her image being tarnished by the deendants, within the country and abroad. If, this Court comes to be conclusion, as a result of evidence produced by the parties, that the plaintiff did suffer loss to her reputation and good name by the misreporting done by the defendants, then the next question will arise as to what should be the quantum of damages? All these questions being a matter of evidence cannot be decided on the basis of affidavits at the preliminary stage.
12. In an Islam is Society, every citizen is entitled to raise objective criticism on the Kalifatul Waqt.
One may find several instances in the history of Islam when Klalifas (Rulers) were criticised on the affairs of .Running the State, in ;case the acts of Kalifatul Waqt were not found in accordance with the Quranic Injunctions and Sunnah. In modern days, too, the democratic system provides every citizen a fundamental right to express his/her opinion on the working/conduct of a political government. Free press is the most essential part of a democratic society. How and in. What manner such right was exceeded or infringed in the background of present suit is a mixed question of law and fact and cannot be successfully decided without giving an opportunity to the person against whom it is alleged that he has exceeded the freedoIT\ of press guaranteed by the Constitution, 1973.
13. As a result of the above discussion, this application is dismissed with no order as to costs. Let the suit be fixed for regular hearing forthwith in view of the order dated 30.4.1995 passed by this Court.