' SABIHUDDIN AHMED, M.---Both these appeals are directed against the same judgment of a learned Single Mudge of this Court decreeing Suit No.1630 of 1999 filed by the respondent in HCA No.103 of 2003 and appellant in HCA No.104 of 2003 (hereinafter mentioned as the plaintiff) for Rs.300,000 by way of damages for publication of libelous and defamatory material. The appellants in CMA No.103 of 2003, (hereinafter mentioned as the defendants) have questioned the judgment and decree on the ground that the publication in question is not defamatory and that in any event the quantum of damages awarded is excessive. The plaintiff on the other hand in cross appeal has prayed for enhancement of the quantum of damages tender of unconditional \apology and a direction to restrain the respondents from setting up Mir Khalilur Rehman Academy of Mournalists.
Since the plaintiff did not have the assistance of counsel and complicated legal questions were likely to arise, we requested Mr. Kazim Hasan, Advocate to assist us which he graciously agreed to do.
2. The relevant facts appear to be that the plaintiff holds master decree in Mournalism and doctorate in Communication and at the relevant time was surveying as Additional Secretary to the Government of Sindh, Social Welfare and Women Development Department. On 15-9-1999 a meeting was called by then Advisor on Women Development Department which was attended by the represerftatives of some NGOs and several officers of the Department including the plaintiff but the press was not invited to participate. However, on 16-9-1999 a news item was published in Daily Mang by way of the report of a Lady Reporter wherein it was alleged that the meeting terminated before the scheduled time owing to altercations between the plaintiff and the Director Women Development, Farzana Saleem. Again on 17-9-1999 another report was published in the same newspaper to the effect that on the publication of the report of the previous date a panic had erupted in the Department and the plaintiff made threatening telephone calls to the correspondent of Daily Mang (defendant No.3) and her family members stating that the matter reported was an internal issue of the Department and they are empowered to use funds whichever way they wish or commit any misappropriation.
3. On 21-9-1999 another report was published stated to be premised on letters from officers of the Social Welfare Department, referring to exchange of allegations amongst officers of the Department in the meeting held on 15-9-1999, suppression of enquiry against Farzana Saleem and other acts of maladministration in the Department. However, on 25-9-1999 an official clarification was published to the effect that the story regarding allegations levelled upon the plaintiff by an officer of the Department was baseless, concocted, malicious and the report published on 21-9-1999 also corroborated the spokesman's clarification. It may be added that the plaintiff also tendered in evidence a clarification signed by herself wherein she relied upon the publication dated 21-9-1999.
4. The plaintiff thereafter caused legal notices to be addressed to the defendants demanding an unconditional apology from. The defendants and reserving her right to claim damages in the sum of Rs.10 million, upon not receiving any response she filed the above suit, claiming, inter alia that the publication had causal incalculable harm to her in terms of tarnishing her reputation as an honest and conscientious public servant and had caused a tremendous amount of torture and mental agony.
5. An application for interim relief by way of injunction was also moved. A joint written statement was filed by the defendants, wherein it was contended that the reports in question were contributed by the defendant No.3 and upon the defendant No.1 having been satisfied about its authenticity the news published. The main defences raised by the defendant No.3 in her counter- affidavit to the publication for interim relief were however, relied upon. It was alleged that the impugned news items were published in good faith relating to a matter of public interest without any ulterior motive and in the exercise of a qualified privilege. It was also urged that the contents of the_ news items were substantially true.
6. Five issues were settled and thereafter a commissioner was appointed to record evidence. After considering the evidence and the arguments addressed the learned Single Mudge arrived at the following conclusions: --
(i) That the news item was published with malicious intention and ulterior motives and the imputation made therein were calculated to harm the plaintiff.
(ii) That it was not proved that the alleged incident of trading-allegations ever took place in the meeting and an incorrect and a biased report provided by the defendant No.3 was published by the defendant No. 1.
(iii) That the defendants failed to tender an apology or published a contradiction despite repeated demands from the plaintiff.
(iv) That no special damages were claimed or proved by the plaintiff. Nevertheless, it was well settled that mere failure to prove quantum of damages was no ground for refusing any relief in such matters and general damages could always be awarded in the discretion of the Court.
(v) Accordingly the suit was decreed for Rs.300,000 jointly and severally against the defendants.
7. Pressing HCA No.103 of 2003, Mr. Mohammad Ali Mazhar, learned counsel for the defendants argued that the findings of the learned Single Mudge as to malice of the defendants were not sustainable in law and there was nothing on record to establish actual malice of the defendants. In the above context learned counsel pointed out that the plaintiff never alleged that anything tending to defame her had earlier been published by the defendants. On the other hand she in her cross-examination made several allegations of misappropriation against Miss. Farzana Saleem which were mentioned in the publication dated 21-9-1999. He further argued that no doubt she made allegations of malice against the defendants Nos.1' and 3 alleging that they wanted a Human Rights NGO to be registered but she had opposed such registration. She was unable to produce a single document indicating such an effort despite being confronted in cross-examination.
8. Moreover learned counsel argued that in such matters the onus to prove malice was clearly upon the plaintiff. In support of his contention learned counsel relied upon a recent pronouncement of the Honourable. Supreme Court in Shaikh Muhammad Rasheed v. Majeed Nizami and another PLD 2002 SC 514 to the following effect:-- "In the wrong of defamation the law presumes malice in the sense of wrongful act done intentionally by publishing defamatory matter but there is a lawful excuse for the publication of such matters as in the ordinary case of privileged communication or of fair comments upon a matter of public interest, the onus is upon the plaintiff to establish the fact of malice in order to maintain the action. It means that malice must be proved as a fact irrespective of the mere inference arising from the libelous character of the publication. The State of mind of the publisher who publishes defamatory matter is, therefore, material, where occasion is privileged or a plea of fair comments on a matter of public interest is properly raised, in that case, the plaintiff has to prove actual malice in ordinary meaning of the words, that is to say, spite or any indirect or improper motive. When the plaintiff fails to prove malice by cogent evidence then he can be non- suited on this ground. The burden of proving express malice both by extrinsic and intrinsic, evidence lies on the plaintiff to show that the publications were actuated by some indirect or improper motive."
9. It may be pertinent to observe here that the learned Single Mudge apparently arrived at his conclusion that on account of the classical dicta that in such matters law assumes malice and burden is on the defendant to show that the statement was true or made in good faith. With profound respects, however, we are of the view, as can be gathered from the above quoted passage from the judgment of the Supreme Court that this principle would apply only where no privilege, qualified or absolute is claimed by the defendant. Since the, defendant have claimed a qualified privilege, which has been recognized to be available to the press as is evident from the above pronouncement of the Honourable Supreme Court and that of the Lahore High Court PLD 1996 Lahore 410, which was upheld in this appeal, the position appears somewhat different. In this context it may be appropriate to quote the following passage from Salmond's Law of Tort reproduced in the judgment: "The existence of malice is a question of fact for the jury, but the burden of proof lies upon the plaintiff; and the Mudge has to be satisfied that there is some reasonable evidence of malice to go to the jury. On a plea of privilege, it is not for the defendant to prove that he used his privilege honestly and for its proper purpose; it is for the plaintiff to prove that the privilege has been maliciously abused."
10. Mr. Kazim Hassan learned amicus curaie for whose invaluable assistance on differertt aspects of the controversy, with reference to both Pakistan and foreign case-law we are highly obliged, explained that the law regarding libel action by public officials against critics of their official conduct was examined by the Supreme Court of U.S. In Newyorks Times Company v. Sullivan 376 US 254 against the touchstone of the freedom of speech and press guaranteed by the Constitution and it was here that the concept of a qualified privilege as distinguished from ordinary cases of libel was recognized to be available to the press in respect of conduct of public officials. A similar view appears to have been taken by our own Supreme Court in Muhammad Rashid's case cited above keeping in view the Article 19 of the Constitution. Courts in U.K. Appear to be moving in the same direction after enforcement of the Human Rights Act, 1998 as can be gathered from Loutchansky v. Times Newspaper and another 2002 1 AER 652. Learned counsel also referred to a Division Bench judgment of the Bombay High Court in R. K. Karanjia v. Krishna Raj M.D. Thekersay AIR 1970 Bombay 424, where it was observed that though malice in law was presumed in every false and defamatory statement, it stood rebutted by a privileged occasion and the burden of proving malice in such cases was on the plaintiff. Therefore, with profoundest respects, we are unable to uphold the view that malice was to be presumed in the facts of the instant case.
11. At the same time, it is not possible to subscribe to .Mr. Mazhar's contention that once actual malice was not shown to exist the defendant would be relieved of all liability. It needs to be stated that whereas Article 19 of the Constitution guarantees freedom of expression and the Press (subject to reasonable restrictions imposed by law). Article 4 also requires that no action detrimental to the reputation of a person shall be taken except in accordance with law. It is well recognized that newspapers do enjoy a certain amount of liberty in reporting matters of public interest and are known to be saddled with the moral obligation of enlightening its readers they also owe a duty to at least attempt to verify facts. They only enjoy a qualified and not an absolute privilege. Indeed this concept has been acknowledged in the judgments of the Lahore High Court and the Honourable Supreme Court referred to above.
12. A qualified privilege requires that the imputation published should not merely be free from an ulterior motive but should not be published with reckless disregard of ascertaining the truth. In the case of Muhammad Rasheed their Lordships recorded a judgment in favour of the defendant after observing:-- "The allegations made by Mr. Navid Malik were published in the newspapers which could only be controverted by the appellants as he alone was in the knowledge of the correctness or otherwise of the allegations made against him. Since he refused to , issue any contradiction therefore, the same would be deenied to be correct and the respondents cannot be held responsible as they published the statements in good faith in public interest after verifying correctness of the same from the maker of the statenients."
13. The plaintiff in her deposition alleged that the imputations in question were false: On the other hand in attempting to prove its truth the defendant No.3 gave evidence and produced two witnesses namely Sabiha Shah and Nisar Hussain Baloch. The defendant No.3 indeed was not personally present in the meeting held on 15th September but contended that the report published the following day was true "as per information received from different sources who were present in the meeting". Sabiha Shah on the other hand contended that she was present in the meeting and affirmed the contents of the allegations against the plaintiff. Nevertheless in cross-examination she stated that she did not know and could not identify the officer of the department who made such allegations. Nisar Hussain Baloch also affirmed the same and relied upon a letter that he had addressed to the defendant No.1 on behalf of Karachi N.G.O. Alliance. In this letter he stated that the allegation was made by an officer named Akber. In cross-examination he admitted that he had not known Akber earlier. Interestingly the officer Khalid Akber appeared as witness for the plaintiff and claimed that the plaintiff was an officer of high integrity and that he never made the imputation in question.
14. Indeed Mr. Mazhar is right to the extent that the evidence of Sabiha Shah should not have been excluded on the ground that she was not cross-examined, which appears to be result of an inadvertent omission because on account of evidence having been recorded on commission, all papers were not properly arranged. Nevertheless, it is inconsequential in as much as on the above state of evidence it cannot be stated that imputations in question have been proved to be true.
What is important to keep in view is that the defendants did not even make good , faith efforts to ascertain the truth. They chose to rely upon communications directly addressed to them by apparently interested parties who might be having their own axes to grind. There is nothing to indicate that any effort whatsoever was made to obtain the plaintiff's version of the alleged incident when it was reasonably possible to do so.
15. Mr. Kazim Hassan contended that when the conduct of a public official in the performance of his public duties was involved, the press was even absolved from strictly proving the truth of the imputation. Nevertheless, he argued relying upon the observation of the Supreme Court of India in R. Raja Gopal v. State of Tamilnadu and others 1994 6 SCC 632 that the defendant would be liable to prove that he acted after a reasonable verification of facts. In the instant case however, the admitted facts to the effect that no attempt to obtain the plaintiff's version was made appears sufficient to show that no such reasonable effort was made.
16. In Majid Nizami v. Muhammad Rashid PLD 1996 Lahore 410 the High Court found it possible to reverse a decree of the trial Court after considering that adequate opportunities were granted to the plaintiff to refute the allegations made but he declined to avail them. In para. 44 it was observed:-- "No doubt the fourth pillar of the State has carved out its place in the society by exposing fearlessly the evils which afflict it, and, one of them is the good use or the bad use to which people put the powers placed at their disposal as trust. In doing so what, however, is sometimes not kept in view by the repOrts is to be absolutely sure of the facts and how to ascertain or check before publishing them, lest they should cause irreparable loss to the person concerned."
17. While the judgment of the High Court was upheld by the Honourable Supreme Court their Lordships expressly recorded that Article 19 did not licentiate the press to publish such material which may harm or cause damage to the reputation, honour and prestige of a person and proceeded to conclude the judgment in the following words:- "Before parting with the judgment, we would like to observe again that the press is not free to publish anything which is prejudicial to the interest of any person or which may harm the reputation of anybody and it must take due care and caution before publishing any such matter in the press and it should verify the correctness of such matters from the concerned quarters."
18. Mr. Kazim Hassan also brought to our notice the pronouncement of the House of Lords in Reynolds v. Times Newspapers 1999 4 AER 609, wherein the defence of qualified privilege was extended to matters of public concern published in newspapers. Their Lordships however, held that in determining whether such defence was available the Court was required to consider whether appropriate steps were taken to verify the correctness of the information and when the plaintiff's explanation was not considered, no privilege could be claimed. In view of the foregoing discussion we are constrained to conclude that the truth of the publication in question has not been proved and the defendants have not been able to make out a case df privilege absolving them of all liability.
19. Alternatively learned counsel for the defendant assailed the grant of damages of Rs.300,000 awarded to the plaintiff by the learned Single Mudge. In the first place he urged that damages in such cases could only be compensatory and never penal. Moreover the plaintiff had admittedly not adduced any evidence to prove the quantum of damages suffered by her. Thirdly in any event the award of Rs.300,000 was highly excessive. In this context he pointed out that the highest amount of general damages was awarded in Pakistan by Saeed-uzZaman Siddiqui M. (as his Lordship then ,was) in Altaf Gohar's case in the sum of Rs.35,000.
20. The legal proposition that damages ought to be compensatory and not punitive and the fact that no evidence in this context has been led by the plaintiff are indeed acknowledged in the impugned judgment itself and Mr. Kazim Hassan learned Amicus curaie also admitted the same.
He nevertheless, supported the observations of the learned Single Mudge to the effect that the mere absence of proof of damages would not disentitle the plaintiff from recovering any amount by way of general damages. In this context he referred to the pronouncement of the Mudicial Committee of Privy Council in A.V. Mosef v. R. Shew Bux AIR 1918 PC 149 where it was held that simply the fact that sufficient evidence to show details of damages would not be enough to award nominal damages only. The same view was taken by this Court in Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 Karachi 202. It' was held that once the right to claim damages was established but sufficient evidence as to its quantum was not available the Court always assess the damages itself. Learned counsel also pointed out that damages in tort to the extent of Rs.l million, without proof of actual loss were recently awarded by our learned brother Ali Aslam Mafry in Zahra Zaidi v. M. Anwar Khan Ghauri 2004 CLC 223 = SBLR 2003 Sindh 1594.
21. Mr. Kazim Hassan than referred to the following observations from the Halsbury Laws of India:-- "Generally the sum awarding must compensate the person defend for the damage to his reputation vindicate his good name and take account of the distress, hurt the humiliation caused by the defamatory publication."
22. Indeed in the context of the above case it is difficult to say the absence of any evidence whether her , reputation or good name was seriously tarnished, but she is certainly entitled to be compensated for the distress, hurt and humiliation. Damages in matters like the present one are difficult to assess and normally an Appellate Court does not interfere with the findings of the trial Court. However, 'as observed by Lord Diplock in the famous case of Rookes v. Bernard 1964 1 AER 367, the injuries that a plaintiff sustains could be classified under two heads:--
(i) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and
(ii) the grief or annoyance caused by the defamatory statement to the plaintiff himself.
23. Indeed the plaintiff has not led any evidence in respect of the first head and therefore, she could only be entitled to claim damages under the second. We are conscious that in terms of assessing the quantum of damages, the Court is required to consider the extent of the injury caused which depends on the personal sensitivity of the plaintiff, which the trial Court before whom the plaintiff has appeared is in a better position to judge. Therefore, the amount awarded is not generally interfered with in appeal.
24. In the instant case, however, though it was noticed the plaintiff had broken down in Court and started weeping, it could not be overlooked that she relied upon the publication of 21-9-1999 casting aspersions on her colleague Mrs. Farzana Saleem. Her own witness Khalid Akber deposed that in the meeting with N.G.0s. On 15-9-1999 she had referred to acts of misappropriations of the said lady colleague. Indeed for a person who is highly sensitive about public exposure of lady officers, such meeting was hardly a place for 'doing so and indeed could have performed her duty on a more appropriate occasion. In any event both in the plaint and during- proceedings, the plaintiff stated that she was interested in setting up Mir Khalil-ur-Rehman (the founder of Daily Mang and father of defendant No.2). Institute of Mournalism and proposed that funding should be provided by the defendants while she would have complete administrative control over the institution. These facts cast a doubt whether she was interested in claiming damages commensurate with the injury caused to her. In the circumstances we are inclined to take the view that the quantum of damages awarded by the learned Single Mudge were excessive and we would accordingly reduced them to Rs.75,000 only.
25. In H.C.A. No.104 of 2003 the plaintiff has claimed that the 'defendants be called upon to publish a written apology on the front page of the newspaper. Mr. Muhammad Ali Mazhar learned counsel for the defendants argued that such relief was never claimed in the plaint and could not be granted at the appellate stage. Even otherwise though publication of an apology is always considered a mitigating factor in the award of damages, we were highly doubtful that such a direction which would amount to a mandatory injunction could be granted as a matter of final relief in such cases. Mr. Kazim Hassan was of the view that in any event when the wrong could be remedied by payment of compensation which was claimed and was in fact being granted there was no justification for award of such additional relief. The plaintiff relied upon the provisions of the Defamation Ordinance, 2002, which indeed does appear to enable the Court to grant such directions. Nevertheless, it is not retrospective and could not be applied to a wrong committed earlier. For these reasons this appeal must fail and is hereby dismissed.
26. In view of the above H.C.A. No.103 of 2003 is partly allowed and the quantum of compensation awarded is reduced to Rs.75,000 only with 14% markup from the date of this judgment and H.C.A.
No.104 of 2003 is dismissed. J Parties to bear their own costs.