MAJID NAZAM Versus MUHAMMAD RASHID

SH. IJAZ NISAR, J.‑‑‑The circumstances leading to the present reference are as under:

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2. Sheikh Muhammad Rashid, a prominent politician hereinafter referred to as plaintiff instituted a suit for the recovery of Rs.3,00,00,000 as damages against M/s. Majid Nizami hereinafter referred as defendants for having published in their dailies 'The Nation' and 'Nawa‑e‑Waqt' defamatory statements issued by one Mr. Naveed Malik. The suit was heard by the learned District Judge, Lahore who on 9~6‑1991 partly decreed it against defendants directing them to pay a sum of thirty lacs rupees to the plaintiff as damages. Feeling aggrieved both the parties filed appeals before the High Court. The plaintiff's appeal was f or the enhancement of the quantum of damages while the defendants prayed for setting aside the impugned judgment and decree and the dismissal of plaintiff's suit. A Division Bench comprising Mr. Justice Munir A. Shiekh and Mr. Justice Khalid Paul Khawaja disposed of both the appeals by their separate judgments dated 10‑ 11‑ 1994.

3. Mr. Justice Munir A. Sheikh accepting the appeal filed by Sh. Muhammad Rashid enhanced decretal amount from Rs.30 lacs to Rs.50 lacs. while Mr. Justice Khalid Paul Khawaja dismissed the suit itself filed by Sh. Muhammad Rashid alongwith his R.F.A. 164 of 1991 and accepted R.F.A. No.106 of 1991. Since there was difference of opinion between the learned Judges of the Division Bench, they were pleased to refer the matter to the Hon'ble Chief Justice in terms of section 98 of C.P.C. for nomination of a third Judge to express his opinion on the following points of law:‑‑

(a) Whether fundamental right of freedom of press granted by Article 19 of the Constitution of Islamic Republic of Pakistan, 1973 provides protection to appellants in relation to publication of news items in question against any claim for damages.

(b) If answer to the above point is in the negative whether in the facts and circumstances of the case the plaintiff even otherwise is not entitled to claim damages for publication of the news items by appellants.

4. The Hon'ble Chief Justice nominated me to act as a referee Judge and to give my views on the points formulated as above.

The facts of the case in brief are:-

5. A news item appeared in an English daily 'The Nation' dated 22‑7‑1987 in the form of a rejoinder issued by the plaintiff to a statement of one Naveed Malik which earlier had been published in which the latter levelled various allegations of misdeeds including corruption as Federal Minister and Chairman, Federal Land Commission.

6. Subsequently a statement of Mr. Naveed Malik appeared in the 'Nawa‑e‑Waqt' in its issue, dated 25th July, 30th July and 2nd August, 1987 respectively under the following captions:

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7. The statement of Naveed Malik also appeared in daily 'The Nation' in its issues of 2,3rd July and 25th July, 1987 which bore the following captions:‑‑

(a) Naveed terms Sheikh Rashid a senile.

‑(b) Naveed Malik slates Mr. Rashid.

Naveed Malik had inter alia, stated that Sh. Muhammad Rashid was a senile and frustrated man. out to commit political suicide and that his claim of being a 'Mr. Clean' was hollow because first he was demoted to the rank of Patwari, from a District Kanungo and, later, during his tenure as the Chairman. Federal Land Commission, he had regularly accepted bribes. He termed Sh. Muhammad Rashid a callous merchant of Socialism. He called Sh. Muhammad Rashid, an incompetent lieutenant of a great leader and alleged that he had given back thousands of acres of land to landlords for handsome considerations, whereas the land should have actually gone to the tenants and tillers under the Land Reforms announced by the late Prime Minister, Z.A. Bhutto. He said that Sh. Muhammad Rashid had risen to the office of a Federal Minister not due to his competence but because of the Charisma,of the then party Chief as he had contested the elections on a P.P.P. ticket. Calling Sh. Rashid a 'corrupt Patwari', he said that he was remembered by the people in‑remote areas as a mentally sick person and a stumbling block to the party's programme. This statement appeared in the daily 'Nawa‑i‑Waqt', dated 30th July, 1987 in the following words:‑‑

Malik Naveed later yet in another statement published in the 'Nawa‑i‑Waqt' of its issue, dated 2nd August, 1987 alleged:‑‑

Similar allegations levelled'by Naveed Malik against the plaintiff as published in 'The Nation' dated 23‑7‑1987 were as under:‑‑

"That Sh. Rashid is a senile and frustrated man, out to commit political suicide. His claims to being a Mr. Clean ring hollow because first he was demoted to the rank of Patwari from a District 'Qanungo' and later during his tenure as the Chairman, Federal Land Commission, also lie had regularly accepted bribes."

He further stated about the plaintiff as under:

"The callous merchant of socialism, self‑proclaimed pope of socialism, Sh. Rashid had decided to from a new political party and was misusing the platform of P.P.P., to embarrass Mrs. Benazir Bhutto and to give the impression that socialism was the reason for his parting ways.

8. It was also contained in this news item that Navecd Malik was asked to shed further light upon the corrupt side of Sh. Rashid's person, who cited a case of a land decision rendered by him as Chairman, Federal Land Commission. He alleged that Sh. Rashid had decided a case uf 800 aues' of land in the area of lbrahimabad, Kasur District, in favour of the original owners in lieu ot a heavy bribe. fie said that the same land had been awarded tu tlie landless tenants earlier. The news item goes on stating that when the plaintiff was contacted he declined to comment on this statement of Naveed Malik saying that he considered it below his dignity to reply to every 'Tom, Dick or Harry' trying to attack his person in order to gain cheap notoriety.

9. Another news item appearing in the Daily 'The Nation' dated 257‑1987 contained the statement of Naveed Malik taking strong exception to Dr. Mubashar Hassan's statement in which he had defended the plaintiff. The text of this statement is as under:

"He called Sh. Rashid an 'incompetent lieutenant of a great leader and alleged that he had given back thousands of acres of land to landlords for handsome considerations whereas the land should actually have gone to the tenants and tillers under the Land Reforms announced by the late Prime Minister, Z.A. Bhutto.

Sh. Rashid had risen to the office of Federal Minister not due to his competence but because of Charisma of the then Party Chief as he had contested the elections on a P.P.P. ticket. Sh. Rashid was a corrupt 'Patwari'. He said that he was remembered by the people in remote areas as a mentally sick person and a stumbling block to the party's programme. A revolution or socialism could not be expected from people like him and that he was an embarrassment to Miss Benazir Bhutto. "

10. In their written statement the defendants maintained that the suit was misconceived as the statement issued by Sh. Muhammad Rashid in rebuttal was duly published in the Daily Nation and that he did not supply any other contradiction to the Daily 'Nawa‑i‑Waqt' although an offer had been made to him through Justice (Retd.) Zakiud Din Paul but describing Naveed Malik as 'Tom, Dick and Harry' he considered it below his dignity to join issue with him and to take any notice of his statements.

11. They further contended that the statements were published in public interest in good faith in a bona fide manner as the plaintiff was ‑ public leader. The allegations were not published to defame or harm him but as Mr. Naveed Malik had issued the statement the defendants published it since Naveed Malik was also a public figure. The allegations were not levelled by the defendants but by Naveed Malik who should have from sued. The reputative of the plaintiff was not harmed nor is there any question of mental torture because such statement are generally made by public leaders against each other, The defendants offered the plaintiff to publish his version or denial and the plaintiff issued the statement which was also published by the defendants. The plaintiff declined to issue any further statement as he thought it below his dignity to reply to every "Tom, Dick or Harry ".

12. According to the defendants, if there was any liability at all Naveed Malik was liable for it. A number of objections were also raised as to the non-joinder of parties, misjoinder of parties and causes of actions, maintainability and valuation of the suit.

13. The learned trial Court reduced the pleadings of the parties to the following issues:

Whether the suit is bad for misjoinder of cause of action? OPD. (ii) Whether the suit is bad for misjoinder of parties? OPD

(iii) Whether the suit is bad for non‑joinder of Mr. Naveed Malik and that he is also a necessary party in the present case? OPD.

(iv) Whether the plaintiff is required to institute separate suits against both the defendants, if so, whether he was required to pay proper court-fee and to what extent? OPD.

(v) Whether the suit is misconceived and the facts stated in preliminary objection No.5 are correct? if so, its effect? OPD.

(vi) Whether the plaintiff has no cause of action against the defendants? OPD.

(vii) Whether the imputation published in the daily 'Nawa‑i‑Waqt', dated 25th July, 30th July, 2nd of August and the Nation on 22nd, 23rd, 25th July 1987 are defamatory? OPD.

(viii) If issue No .7 is proved, then whether plaintiff is entitled to recover Rs.3,00,00,000 (Rupees three crores) from the defendants as set forth in the plaint? OPD.

14.The learned trial Court held that the statements appearing in the daily 'Nawa‑i‑Waqt' and daily 'The Nation' were untrue and defamatory and published without any verification of the allegations levelled by Naveed Malik as such Mr. Arif Nizami and Mr. Majeed Nizami were guilty of publishing libellous material in their newspapers for which they could not claim any privilege.

15. , On the quantum of damages the learned trial Judge, taking all these facts into consideration, observed that though the plaintiff is entitled to heavy costs, he will not decree the case to its full extent. The honour of the plaintiff to a large extent stands vindicated by the factum of rejection of allegations as false. The defendants, however, deserve as much pecunigy punishment as does the plaintiff to receive compensation for injury to his reputation, a priceless property. He, therefore, burdened the defendants with the damages to the extent of thirty lacs of rupees (Rs.30,00,000), that is, ten lacs of rupees for the allegations pubished in 'The Nation' and Twenty lacs of rupees for what had appeared in 'Nawa‑i‑Waqt' which had wider circulation as per statement of the witness from the Ministry of Information.

16. The parties are not at variance on any question of fact. The issuance of questioned statements by Naveed Malik and their publication as such in the newspapers published under the auspices of the defendants is not denied by any party. The maker not only owned the statements but also reiterated them with a claim to establish their veracity. Even the effect of publication of these statements and the nature of their impact is not controverted. I do not, therefore, consider it necessary to dilate upon the oral or documentary evidence produced by the parties.

17. 1 am also mindful of the fact that the scope of my judgment is limited to the point of law referred for opinion. I am not supposed to reopen the whole case but a reference to the facts and circumstances may not be avoidable wherever relevant for the determination of the points under reference. It would be all the more necessary because, as will be seen later, qualified privilege is attached to the publications in question and they are protected under Article 19 of the Constitution from an action of libel or defamation. In order to see if the questioned publications qualify for the privilege or not, it may be inevitable to examine the case in some details.

18. The first question that arises for determination is as ' to whether in view of the Constitutional provision with regard to freedom of press, a newspaper could be held liable for damages on the ground that it had published libellous statement of a politician or a person from the public.

19. Article 19 of the Constitution of Islamic Republic of Pakistan lays down the following fundamental right of freedom of speech etc.:

"19. Freedom of speech, etc.‑‑Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, commission of or incitement to an offence."

20. It may not be out of place to mention that this provision of Article 19 as it stands now is the result of an amendment introduced on 21‑11‑1975 through Act LXXI of 1975. In provision as originally framed, the word 'defamation' was included in the exemption clause of the rights enumerated in Article 19, meaning thereby that the freedom granted to the press by the Constitution was subjected to the reasonable restrictions imposed by law in respect of the defamatory statements, if any, to be published by the press. A comparative study of the two provisions i.e. the original and the amended shall explain the difference. Article 19 as it stood earlier is, therefore, reproduced hereunder:

"19. Freedom f speech, etc.‑‑Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to imy reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence " (Underlining is mine).

21. The word 'defamation' appearing in Article 19 was substituted with the words 'commission of '. This altercation obviously had a significance. It seems that the provisions after the said change widened the scope_ of freedom of press so that It could serve its purpose without a Sword of Damocles permanently hanging on its head.

22. It is now a popularly acknowledged fact that public men are public property and discussion of their conduct in public affairs cannot be denied and that the right, as well as the duty of criticism, must not be stifled by putting curbs on those responsible for reporting to the public the conduct of the leaders. I In a free democratic society for accountability of the elected representatives the forum of National Assembly is there and for the general public the press is the only media through which disclosures about the doings or otherwise of the leaders or those holding public offices is possible. It is almost too obvious that those who hold offict in Government and who are responsible for public administration. arc, and must always be open, to public criticism,. At the same time it is not less obvious that the very purpose of criticism levelled at those who conduct public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents could make a better job than the former.

23. It is also widely believed that the right of the people to speak out through a free press is the hallmark of a democratic society. Also constitutionally protected are the rights of free speech and the freedom of the I press. Far from creating sensational news it is expected of the press to carry reports about the people indulging in any sort of irregularities. The publication of reports considered to be in the public interest, thus, goes to make the press powerful. So, the media is supposed to take lead in reflecting if anything wrong is taking place. Press is also supposed to highlight the problems as well as successes in the society considering it as a national duty but not to go too far infuriating out information.

24. The omission of the word 'defamation' thus, implied that the press had a qualified freedom to publish any material which came to its notice, though it may be considered by someone to but defamatory for him, particularly regarding public figure against whom people have right to know and from opinion about their conduct, present or past.

25. This takes us to the right and corr esponding duties of the press. In fact nothing should be printed by the newspaper which is libellous or defamatory. To quote Kiyani, C.J. from his address to journalists and officials of I.P.J., 'if the press has a right to be free, the individual who it represents has also a right to his standing in life and should not be defamed; the society for which it caters has also a right to maintain a certain standard of decency and guard against corrupting influences, The journalist may argue that in a free country the press has a right to publish everything in the first instance, as there is a right to eat anything. But if you eat a snake, you take the consequences. So also with publishing, and it is for that reason that although, the press is in theory free to publish scandal and obscenity, if it produces conflict with wholesome laws which are intended to guard morals or reputations, it ought to be restricted.

26. Writing under the title "rights and responsibilities" Robert H. Estabrook says in a booklet on "Unfettered press" that an independent press must cherish its role of informing the public about the misdeeds of others by resisting pressure of all kinds from local as well as national Government, from special interest groups in the community, from powerful individuals, from advertisers. This is a noble standard that is sometimes or difficult to f ollow in a small community than in a large one.

27. He further states that from this also flows the point that the newspapers and its staff should exemplify independence in their action. Not only should they be independent in fact, but they must be seen to bc in dependent. A newspaper that rewards its friends with unwarranted, fluttering stories or fawning editorials will not long be respected,

28. Freedom of th e press hardly requires any emphasis. It is e ssential not onl y f or healthy growth of democratic norms but also for inculcating awareness in the citizens arid for reflecting public opinion, its ultimate object being the protection of the rights of the citizens. In an accountable democracy, it is a common practice that those who find no other venue of venting their views on matters of public interest use the columns of the press for this purpose. Thus, besides the known politicians even the ordinary people have an opportunity to express their opinion on any issue of public importance, if not otherwise at least through the traditional "letters to the editor". To the politicians press provides the blood for their political life. In the present age no politician, big or small, can afford to have a black out from the press. When they are in the press, allegations and counter‑allegations against each other and the criticism of political adversaries is a common feature of their political life.

29. In all the countries of the world where there is freedom of speech and freedom of press, the politicians make the criticism of their opponents in highly rough and rigorous manner. A duty is cast upon such press to project the divergent views of the renowned leaders. It, however, goes without saying that the privilege available to the press in this behalf is not absolute and unbridled. The reports or statements published by a newspaper must be devoid of mala fide or malice.

(1) Malice.

30. The question of qualified privilege and the effect of malice was dealt with by the Supreme Court in the well‑known case of M. Moosa v. Muhammad etc. PLD 1968 SC 25. It was held that privilege will apply to an Advocate with reference to a duty or right and that if anything is found in the thing published which is not reasonably appropriated to that duty or right then that privilege could not be extended to that. From the judgment it follows that the qualified privilege will not be available if any one of the following elements are established:

(2) Personal ill‑will.

(3) Indirect motive or publication actuated by spite and deliberate and false attack on one's personal life.

Malice and ill‑will are the questions of fact which in the instant case, should have been spelt out in the plaint and subsequently proved on the basis of evidence. It would be difficult to presume the malice so long the newspapers carrying statement of politicians of the stature of M/s. Sh. Muhammad Rashid and Naveed Malik were ready and willing to publish whatever they wished to say against each other. There was hardly any imprudence and mischief attributable to the newspapers in dealing with the statements issued by either party, especially when at no time the two newspapers commented on their statements editorially or otherwise. They maintained their position of informing the public‑at‑large how the two former colleagues M/s. Sh. Muhammad Rashid and Naveed Malik knew each other and in what esteem they held each other. This right of the public to have access to that knowledge which the two parties had of each other in private could not be denied by any newspaper.

3 1. This aspect of the matter is relevant to the present case also for the reason that a society where the rule of law in all its aptitude prevails allows censure of the people to the fullest extent to uphold the freedom of expression guaranteed to them by the Constitution. The statements by political leaders against each other when published may cause temporary discomfort that no loss of reputation. The gallop polls conducted through newspapers every now and then to guage popularity of political patties and politicians in tile public, often result in huge fluctuations over short intervals which can be attributed to the 'process of the campaign but t subsequent variation in the actual result to that of the gallop poll can hardly justify an action for damages against the newspaper on the ground that the report of the gallop poll caused embarrassment to the workers and leaders of a particular party, unless clear bad intention of the newspaper is established.

32. It is also believed that journalists cannot expect to be walled apart from the community in which they live. If that be the correct and practical approach, to which I have no doubt in my mind, then the publications in question $hall also be seen in the total perspective of our social and political life and their impact would be determined keeping in view the legal and Constitutional provisions relating to libel and defamation.

Expressing his opinion on the libel laws in tile United States Steven Pressman writes, ‑in 1631, all En glish writer named William Prynn made the unfortunate mistake of writing a book that criticized the Queen. Brought before a panel of Judges, the helpless Prynn was found guilty of libel and ordered to 'spend the rest of his life in prison. An added punishment, he had his ears lopped off before he was hauled off to jail. Had Prynn been living in modem day America rather than 17th Century England, he undoubtedly would have been free to write book whether about the Queen or a US President without worrying about losing his ears or ending up in prison".

33. 'The Supreme Court of the United States, the highest Court in America, for years refused to protect the meida from. libel law suits but the position changed in 1964 when the US Supreme Court issued a ru ling that revolutionized libel law in the United States. The' famous decision in New York Times Company's. L.B Sullivan 376 US 254 11 L ed 2d 686. Sullivan, once and for all, created a rule that squared more fully with tile tree press guarantees of the Firs t Amendment. The Court decided that public officials no longer could sue successfully for libel unless reporters or editors were guilty of actual malice' when publishing false statements about them. And just what is malice when it comes to pr oving libel? The Judge who write the Sullivan decision, defined it as 'knowledge that the published information was false' or that it was published I with reckless disregard of whether it was false or not'. As a sequel to this judgment, public officials no longer could sue for libel simply by proving that something that had been broadcast or printed about them was false. Now they would have to prove that a journalist had knowingly printed false nformation while making little, if any, attempt to distinguish truth from lies.

34. The Court later extended its Sullivan rule to cover Public Figures', meaning individuals who are not in public office but who are still newsworthy because of their prominence in the public eye. Over the years, American Courts have ruled that this category includes, celebrities in the entertainment field, well-known writers, athletes, and others who often attract attention in media.

35. The upshot of the above discussion is that the person bringing the libel suit has the burden of proving not only that he has been libeled but also that the libel was committed with intentional malice. In other words, a public figure must prove that reporter not only published false information but also did so recklessly and maliciously without attempting to determine whether it was true. Accordingly, in the present case we have also to see as to whether the defendants had actual malice against the plaintiff in publishing the statement of Naveed Malik.

36. Judging on that touchstone the defendants are duly protected in relation to the publications in question against any claim for damages because from the evidence on record it has not been established that these publications are tainted with actual malice against the plaintiff.

37. From the record of the case it seems that Naveed Malik is a founder member of the Pakistan People's Party who once held the office of an Advisor to the Federal Government and is an active politician. He issued a statement in which he criticised the conduct of the plaintiff. The daily 'The Nation' in its issue dated 22-7-1987 published a detailed rejoinder of the plaintiff in which he exposed Naveed Malik. Subsequently, a series of the statements of Mr. Naveed Malik appear to have been published in the newspapers of the defendants in which the plaintiff was described as 'senile', 'callous merchant of Socialism' and 'self-proclaimed pope of Socialism". He also alleged that the plaintiff in his capacity as Chairman, Federal Land Commission indulged in corruption. The same news item reveals that the news-staffer sought plaintiff's comments on the statement of Naveed Malik but the plaintiff refused to offer any comments saying that ' he considered it below his dignity to reply to every 'Tom, Dick and Harry' trying to gain cheap popularity.

38. A perusal of the record also shows that the initial statements of Naveed Malik was not carried by the newspapers run by the defendants. It is clear from the above that the defendants did not entertain any malice against the plaintiff, for, they did not publish the initial disparaging statement of Naveed Malik and rather gave prominence to the statement of the plaintiff in which Naveed Malik had been ruthlessly slated by the 3/4th plaintiff. After the retaliation of Naveed Malik, the newspaper again contacted the plaintiff for his comments to explain his position which the latter refused to offer dismissing Naveed Malik as Tom,

Dick and Harry. The effect of the defendants to give reasonable opportunity to the plaintiff to express his views on the subject or to contradict the allegations of Naveed Malik is a sufficient proof of their impartiality and good faith. ,

39. Thus, by no stretch of imagination from their conduct it could be gathered that the defendants entertained any malice against the plaintiff. Mr. Majeed Nizami defendant No.l was, therefore, duly -fortified by the facts and circumstances of the case when as D.W.8 he stated before the trial Court that he had no malice or personal vendetta against the plaintiff. It is pertinent to note that this statement, rather this aspect of the case, has not been questioned anywhere in the pleadings or the evidence of the plaintiff.

40. When a plea, especially of malice and motive has not been raised in the pleadings and is not actually or seeingly incorporated in the evidence and is not deducible even circumstantially, it will be going too far to presume its existence notionally. A publication cannot be deemed to be malicious merely because it is found to be incorrect unless the relevant circumstances indicate the absence or bona fide. As already stated the defendants not only published the statements of both the parties and were all the way willing to publish further statements and contradiction to be supplied by the plaintiff but it was the plaintiff who first dismissed Naveed Malik as Tom, Dick and Harry and then declined the offer extended by the defendant No. l personally as well as through Muhammad Shafi (Meem-Sheen, an old political worker and a legend in the field of journalism) and Mr. Justice (Retd.) Zakiud Din Paul.

41. In my view due care was exercised by the defendants in publishing the matter inasmuch as that they had reproduced the allegations and counterallegations of the parties in the same manner as had been levelled by them against each other. The allegations from both sides were published as mere allegations and no impression of their truth or falsehood was ever given by the newspapers nor they ever added any view of their own on the respective contentions of the two political rivals. The plaintiff and Naveed Malik both were political leaders belonging to the same political party and the newspapers plainly reproduced the versions of both the gentlemen to the extent possible. The evidence shows that the defendants made an effort to verify,from Mr. Naveed Malik, if the allegations against the plaintiff had any substance to which he replied in the affirmative. He reiterated the same allegations before the trial Court in his statement as D.W.6. In these circumstances the publications in question cannot be deemed to have been done with malice or due to extraneous considerations merely because it was not proved to be correct.

42. In this view of the matter the defendants are not liable for the libel complained against them and their publications are protected under the law and the Constitution. It is the professional and social obligation of the newspapers to honestly reproduce information to the public, to educate the people and inculcate in them an awareness on all subjects of national interest. They also play an important role in bringing awareness in the public about their leaders and in l building the public opinion with the object of betterment of the society. For this reason the law recognises the importance of expression of views or making j statements as social or moral duty and grants a privilege from actin for libel and defamation if made honestly, justly and fairly. The Sullivan case referred to above and the case of Curtis Publishing Company v. Wallace Butts, 338 US

130, 18 L ed 2d 1094, lend full support to this view.

43. I am, therefore, of the view that an honest and fair reporting of a public statement or bona fide expression of opinion on a matter of public irsterest is not actionable even if it does not come to be true. Accordingly, the defendants are K entitled to the protection of qualified privilege which the newspapers enjoy under Article 19 of the Constitution and they cannot be held liable for libel in this case.

44. 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 reporters 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 L concerned.

45. Exposure of the hidden traits of character of people, especially Political leaders with reference to the level of credibility they enjoy amongst their fellow beings is a public service which the press performs to inform them of the other side of the story. No one can and should be afraid of the free press for doing this service provided, of course, it is done responsibly and not for maligning anybody out of malice or personal dislike.

46. In the present case the alleged insinuations and defamatory statements were made by Mr. Naveed Malik a prominent P.P.P. leader holding an important official position even now against Sh. Muhammad Rashid another veteran P.P.P leader who categorically owned them while appearing in the N witness-box before the Court and offered to prove their veracity, if given a chance. But it is not understandable why in these circumstances he was not arrayed as defendant by Sh. Muhammad Rashid alongwith the Editors of the Newspapers who had published his statements.

47. The fourth pillar of State i.e. press has of necessity to ensure stability of the structure. Weakness of one or the other exposed for corrective measures will not harm but add to the strength of the State structure bill deliberate weakening' one to the advantage of the other should not be allowed and tolerated at any level of those engaged in securing public good.

48. The above point namely point (a) of the reference having been answered information while making little, if any, attempt to distinguish truth fr lies.

34. The Court later extended its Sullivan rule to cover 'Public Figun meaning individuals who are not in public office but who are still. newswo because of their prominence in the public eye. Over the years, American Cot have ruled that this category includes, celebrities in the entertainment fie well‑known writers, athletes, and others who often attract attention in media.

35. The upshot of the above discussion is that the person bringing the li suit has the burden of proving not only that he has been libeled but also that libel was committed with intentional malice. In other words, a public fig must prove that reporter not only published false information but also did recklessly and maliciously without attempting to determine whether it was t Accordingly, in the present case we have also to see as to whether the defend had actual malice against the plaintiff in publishing. the statement of Nav Malik.

'36. Judging oil that touchstone the dete , ndants are duly protected in relat to the pu4lications in question against any claim for damages because from evidence on record it has not been established that these publications are, tain with actual malice against the plaintiff,

37. From the record of the case it seems that Naveed Malik is a foun( member of the Pakistan People's Party who once held the office of an Advisor the Federal Government and is an active politician. He issued a statement which he criticised the conduct of tile plaintiff. The daily 'The Nation' in issue dated 22‑7‑1987 published a detailed rejoindui of the plaintiff in which exposed Naveed Malik. Subsequently, a series of the statements of Mr. Nav Malik appear to have been published in the newspapers of the defendants which the plaintiff was described as 'senile', 'callous merchant of Socialis and 'self‑proclaimed pope of Sociansm". fie also alleged that the plaintiff in capacity as Chairman, Federal Land Commission indulged in corruptior same news item reveais that the news‑statter sought plaintiff's comments oil statement of Naveed Malik but the plaintiff refused to orier any comme saying that 'ht; considered it below his dignity to reply to every 'Tom, Dick

Harry' trying to gain cheap popularity.

38. A pertisai of the record also shows that the initial statement4 of Nave Malik was not carried by the newspapers run b y tile defendants. It is cicai Irt the above that the defendants did not u‑mcilain any malice against the plaint for, they did not publish tile initial disparaging statement of Naveed Malik lather gave prominence to the staLcutcut ut tile plaintiff it, which Naveed M had been ruthlessly slated by the 3/4th plaintiff. After tile retaliation of Nav Malik, the newspaper again contacted the plaintiff for hi,_ Comments to expl his position which the latter refused to offer dismissing Naveed Malik as To

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Dick and Harry. The effect of the defendants to give reasonable opportunity to the plaintiff to express his views on the subject or to contradict the allegations of Naveed Malik is a sufficient proof of their impartiality and good faith.

39. Thus, by no stretch of imagination from tneir conduct it could oe gathered that the defendants entertained any malice against the plaintiff, Mr Majeed Nizami defendant No. 1 was, tnerefore, duly fortified by the facts and circumstances of the case when as 1).W.8 he statect urfore the trial Court that he had no malice or personal vendetta against the plaintiff. It is pertinent to note that this statement, rather this aspect of the case, h&s not been questioned anywhere in the pleadings or the evidence of the plaintiff.

40. When a plea, especially of malice and motive has not been raised in the pleadings and is not actually or seeingly incorporated in the evidence and is not deducible even circumstantially, it will be going too far to presume its existence notionally. A publication cannot be deemed to be malicious merely because it is H found to be incorrect unless the reievant Larcurnstances indicate the absence or , bona fide. As already stated the defendants not only published the statements of' both the parties and were all the way willing to publish further statements and contradictiork to be supplied by the plaintiff but it was the plaintiff who, first dismissed Naveed Malik as Tom, Dick and Harry and 'then declined the offer extended by the defendant No. I personally as well as through Muhammad Shaft (Meem‑Sheen, an old political worker and a legend in the field of journalism) and Mr. Justice (Retd.) Zakiud Din Paul.

41. In my view due care was exercised by the defendants in publishing the I matter inasmuch as that they had reproduced the ‑,',egations and counterallegations of th,_ parties in the same manner as had been levelled by them against'each other The allegations from both sides were published as mere allegations and no impression of their truth or falsehood was ever given by the newspapers nor they ever added ajiy view of their owii on the respective contentions of the two political rivals.The plaintiff and Naveed Malik both ‑ere political leaders belonging to the same political party and the newspapers plainly reproduced the versions of both the gentiemen to the extent possible. The evidence shows that the defendants made an effort to verify from Mr. Naveed . Malik, if the allegations against the plaintiff had any substance to which he replied in the affirmative. He reiterated the same allegations before the trial ,Court in his statement as D.W.6. In these circumstances the publications in question cannot be deemed to have been done with malice or due to extraneous considerations merely because it was not proved to be correct.

1 42. In this view of the matter the defendants are not liable for the libel complained against them and their publications are protected under the law and the Constitution. It is the protessionai and social obligation of the newspapers to ~J honestly reproduce information to the public, to educate the people and inculcate

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Majid Nazami v. Muhammad Rashid Lahore

I (Sh. Ijaz Nisar, J) in them an awareness on all subjects of national interest. They also play important role in bringing awareness in the public about their leaders an( building the public opinion with the object of betterment of the society. For reason the law recognises the importance of expression of views or mal statements as social or moral duty and grants a privilege from action for I and defamation if made honestly, justly and fairly. The Sullivan case referre above and the case of Curtis Publishing Company v. Wallace Butts, 338 130, 18 L ed 2d 1094, lend full support to this view.

43. 1 am, therefore, of the view that an honest and fair reporting of a pu statement or bona fide expression of opinion on a matter of public interest is a ctionable even if it does not come to be true. Accordingly, the defendants entitled to the protection of qualified privilege which the newspapers ei under Article 19 of the Constitution and they cannot be held liable for lib this case.

44. No doubt the fourth pillar of the State has carved out its place in society by exposing fearlessly the evils which afflict it, and, one of them is good use or the bad use to which people put the powers placed at their disp as trust. In doing so what, however, is sometimes not kept in view by reporters is to be absolutely sure of the facts and how to ascertain or ch before publishing them, lest they should cause irreparable loss to the pe concerned.

45. Exposure of the hidden traits of character of people, especially poli leaders with reference to the level of credibility they enjoy amongst their fe beings is a public service which the press performs to inform them of the o side of the story. No one can and should be afraid of the free press for doing service provided, of course, it is done responsibly and not for malig anybody out of malice or personal dislike.

46. In the present case the alleged insinuations and defamatory statem were made by Mr. Naveed Malik a prominent P.P.P. leader holding important official position even now against Sh. Muhammad Rashid ano veteran P.P.P leader who categorically owned them while appearing in witness‑box oefoie the Court and offered to prove their veracity, if giv chance. But it is not understandable why in these circumstances he was arrayed as defendant by Sh. Muhammad Rashid alongwith the Editors of Newspapers who had published his statements.

47. The fourth pillar of State i.e. press has of necessity to ensure stab of the structure. Weakness of one or the other exposed for corrective meas will not harm ‑but add to the strength of the State structure but delibe weakening' one to the advantage of the other should not be allowed tolerated at any level of those engaged in securing public good.

48. The above point namely point (a) of the reference having been answ

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Vol. XLVIII in the affirmative, the plaintiff is not entitled to any claim of damages for publication of the news items by the defendants. I am, however, of the opinion that even if this point had been answered in the negative the plaintiff's claim for exemplary damages was not justified.

49. The superior Courts have consistently been of the view that in such suits the costs or damages are not to be awarded by way of penalty or r, punishment nor are they to be made a source of profit for the successful party.

50. The plaintiff claims to have suffered loss of reputation on account of publication of defamatory material but has not stated its to what clos sal loss had been caused to him in material terms. In the case of Harold Robert Henry Lind v. British Insulated Callender's Construction Co. Ltd. PLD 1970 Karachi 31 1i exemplary and huge punitive damages were not granted despite the fact that the plaintiff who was a consultant and depended solely for his livelihood on his reputation as such was found to have been dafamed. Syed Sharif‑ud‑Din Pirzada, learned counsel for the defendants,' has also referred to a case titled 'Jehangir Pestonji Wadia v. i‑rauiji Rustomji wadia 1928 The Bombay Law Report 962 wherein Quaid‑e‑Azam Muhammad Ali Jinnah had pleaded before the Court that it was never his client's intention to make money out of the litigation,

5 1. It can, thus, be safely concluded that damages for defamation are purely compensatory and there is no room for imputing the concept of exemplary and punitive damages nor the plaintiff has to make profit for himself on account of reputation. In any case the quantum of damages should be determined in proportion to the damages actually suffered by the plaintiff, which in the present case have not been established by him, If the plaintiff in a suit for damages for defamation or libel does not allege or calculate actual loss or damage suffered by him he, shall be deemed to have a claim for general and compensatory damages only. Thus, in the present case‑the damages, if any, could not be exemplary or punitive., Point (b) of the reference is answered accordingly.

51. For the reasons stated above, I concur with the findings arrived at by my learned brother Khalid Paul Khawaja, J. and hold that the suit filed by Sh. Muhammad Rashid Merits dismissal as also his appeal for the enhancement of damages. I order accordingly, In consequence the defendant's appeal succeeds and the judgment and decree passed in favour of Sh. Muhammad Rashid is hereby set aside,

53. Parties are left to bear their own costs.

54. Before parting I would like to state that Mr. Sharif‑ud‑Din Pirzada had very eloquently pleaded the case of the defendants and assisted the Court in understanding that why the word 'defamation' as such was deleted from Article 19 of the Constitution. His lucid and to the point arguments on libellous publications as per standard set by the New York Times case and quantu damages have been very helpful for which I am grateful to him.

55. 1 am equally grateful to Raja Muhammad Anwar, counsel for Muhammad Rashid for the valuable assistance rendered by him in understand the true intent and import of Article 19 of the Constitution of Islamic Republic of Pakistan. order a ccording

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