PAKISTAN COAST GUARDS Versus UMAR SALEYA

This is a suit for recovery of Rs. 5,000,000 (Rupees five million), as damages, arising out of several news item, published as a result of press conference conducted by the defendant on 23‑6‑1993 and 5‑7‑1993. This press conference was given wide coverage in several newspapers including daily Jang, Amn, Evening Special and Qaumi Akhbar in the month of June/July, 199 1

2. The case of the plaintiff is that it is a statutory body, established under Act No. XVIII of 1973, for the purpose of preventing smuggling, illega: immigration to and migration from the country, stopping enemy agents or saboteurs from infiltrating into the country along the coastal areas and supplementing defence in war. That the defendant is the Chairman of Ali Pakistan Organization of Small Business and Cottage Industry and claims to be a leader of business community. The grievance of the plaintiff arose, as pet averments of the plaint, on 7‑4‑1993 when one Mst. Robina Amjad Ali, lodge. an F.I.R. against unknown persons alleging commission of dacoity in a house It is alleged in the plaint that the defendant, for the purpose of defaming maligning and reducing the honour of the plaintiff exploited the alleged incident of 7‑4‑1993 and conducted a press conference on 23‑6‑1993 and 5‑7‑1993 alleging that the officers of the plaintiff have looted gold worth Rs.15,000,000 (Rupees fifteen million). That the defendant through such press conference and after its publication in newspapers acted to please the smuggling mafia and also gave impression to the general public that the plaintiff is involved in the heinous offence of dacoity. According to the plaintiff the alleged act of the defendant has damaged the good image of the plaintiff in the eyes of general public and has caused serious damages to the honour, respect and dignity of the plaintiff. That the notice issued by the plaintiff through its Advocate calling upon the defendant to pay the required damages. But it was invain and consequently the present suit has been filed. The plaintiff besides claiming damages of Rs. 5,000,000 has also claimed 22% mark‑up from the date of filing of this suit till payment of decretal amount.

3. On 31‑1‑1994 service of summons on the defendant was held good and he was directed to file his written statement till 9‑3‑1994. As a consequence of non‑filing of his written statement the defendant was debarred from filing his written statement on 25‑4‑1994. Therefore, on 11‑8‑1994 this Court directed the plaintiff to file affidavit‑in‑ex parte proof, which was filed by the plaintiff on 29‑9‑1994. On 17‑5‑1995 when this matter came up before me for final disposal, I directed the plaintiff to lead evidecnce to prove its case for damages. In furtherance of this Court order, the plaintiff has produced Major Syed Bisharat Ali Rizvi, who was examined as Exh.

3. He has produced several documents in support of plaintiff's case, which were brought on record as Exhs. 3/D‑1 to 3/F.

4. I have heard the learned counsel appearing for the plaintiff and have also gone through the statement of the plaintiff s witness, Major Syed Bisharat Ali Rizvi and the documents produced by him. The first question that requires consideration is whether a statutory body which in essence, is a non‑trading organization can maintain an action for libel. While Trading Corporations have successfully maintained an action for libel in Pakistan (see American Life Insurance Corporation v. M. S. Khawaja PLD 1960 Kar. 568), there appears to be no direct precedent of the Courts of our country in respect of the maintainability of an action for libel by a non‑trading company such as the present plaintiff. Although it cannot be controverted that the plaintiff is sui juris, yet even in the case of Companies and Corporations it has been held that the defamatory imputation must reflect upon the Company or the Corporation itself and not solely upon its members or officials. For instance, a Company or Corporation cannot sue in respect of an imputation of an offence which it cannot possibly commit, such as murder, rape or dacoity. The English Courts have even held that a Corporation cannot sue in respect of an allegation of bribery or corruption or an imputation concerning bad manners. (See Halsbury's Laws of England, Fourth Edition, Volume 28, para. 25).

5. So far as non‑trading Corporations are concerned, even in England the law as to non‑trading Corporations and Companies has been subject of considerable judicial controversy. See Manchester Corporation v. Wilians (1891) 1 QB 94 at 96 and Bognor Regis UDC v. Campion (1972) 2 QB 169, (1972) 2 All ER 61. While in the first case it was held that an Urban District Council could sue in respect of libel affecting its governing reputation. The latter view also found support in the case of Derbyshire County Council v. Times Newspapers Limited and others (1992) 3 All ER 65. In this case the trial Judge held that a local authority could sue for libel in respect of its governing administrative reputation even though no actual financial loss was pleaded or alleged. This view was not approved by the Court of Appeal. This case was, however, appealed before the House of Lords in the judgment reported at 1993 All ER 1011 where the view of Court of appeal was upheld. The relevant portion of which is reproduced below:‑‑‑

"It is of some significance to observe that a number of departments of Central Government in the United Kingdom are statutorily created corporations, including the Secretaries of State for Defence, Education and Science, Energy Environment and Social Services. If a local authority can sue for libel there would appear to be no reason in logic for holding that any of these departments (apart from two which are made corporations only for the purpose of holding land) were not also entitled to sue. But as is shown by the decision in A‑G v. Guardian Newspapers Ltd. (No. 2) (1988) 3 All ER 545, 1 (1990) 1 AC 109, a case concerned with confidentiality, there are rights available to private citizens which institutions of Central Government are not in a position to exercise unless they can show that it is the public interest to do so. The same applies, in my opinion, to local authorities. In both cases I regard it as right for this House to lay down that not only is there is no public interest favouring the right of organs of Government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech .......................

The conclusion must be, in my opinion, that under the common law of England a local authority does not have the right to maintain an action of damages for defamation. That was the conclusion reached by the Court of Appeal, which did so principally by reference to Article 10 of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4th November 1950; TS 71 (1953); Cmd 8969), to which the United Kingdom has adhered but which has not been enacted into domestic law."

6. It may be seen from the passage quoted above that the decision turned principally by reference to Article 10 of the European Convention on Human Rights.

7. In my view the European Convention on Human Rights, laudable as it be, cannot be imported as a part of the Municipal Law of Pakistan in the absence of any particular Municipal enactment. In the above referred House of Lords case, it was held that the County Council may not sue for libel. The holding was predicated on the assumption that private citizens should be free to fearlessly criticise local authorities and that to permit such an action for libel would place an undesirable fetter on the freedom of speech. On this line of reasoning the suit itself was found to be not, maintainable. With great respect, I am unable to accept this line of reasoning in so far as it relates to the law of Pakistan. This, however, does not mean that there are any undesirable fetters in the law of Pakistan against the freedom of speech. The law of Pakistan recognizes the defence of justification, fair comment on a matter of public interest and the defence of absolute or qualified privilege under certain circumstances. These defences are in fact some of the safeguards on the right of free speech especially in relation to the conduct of public bodies and are available to a qualifying defendant. I am also not unmindful of the provisions of Article 19 of the Constitution of the Islamic Republic of Pakistan. However, this Article does not have the effect of wiping off the law .of defamation in this country. In the present case, the defendant by choosing to remain ex parte has not raised any of the defences that may have been available to him. As such, I cannot consider any defence of justification or fair comment on the working of a public institution or of privilege.

8. This brings me to the second question as to whether the complained imputations are libellous of the plaintiff as opposed solely to some of its officers. In this context I may refer to the imputations in question which read as follows:‑‑

"(i) Addressing a news conference on Monday, the Central Chairman APOSTCI, Omer Sailiya, alleged that the Coast Guards Officials headed by Captain Nadim Bhatti, had committed robbery at the residence of a local jeweller Sheikh Amjad Ali on April 17 and took away gold 8000 tolas), ornaments, cash and certificates of Rs.17 million worth.

He further alleged that the bandits committed torture on the house inmates by electric shocks and the Toyota Hiace car used in the robbery belonged to the Pakistan Coast Guards."

(Daily "The News", Karachi dated 6‑7‑1993)

(Daily Jasarat, Karachi dated 6‑7‑1993).

(iii) Business Leaders accuse coast guards in robbery case

More than 20 representatives of business and industry at a Press Conference on Monday blamed the high‑ups of the Coast Guards and an informer for masterminding the biggest house robbery in the city, in which a jeweller was deprived of gold, cash, foreign currency and saving certificates, worth over Rs.20 million.

On April 7, 1993, five armed men came in a Coast Guards vehicle and broke into the P.E.C.H.S. house of Shaikh Amjad Ali, a prominent jeweller of the city."

(Daily "Dawn", Karachi dated 6‑7‑1993)

"(iv) TOO SERIOUS TO BE IGNORED

In what probably is the most serious allegation of its kind ever levelled against a law enforcement agency, the Coast Guards have been accused of masterminding and committing a robbery, said to be the biggest in the country's history. If the allegations made at a Press Conference in Karachi on Monday, by representatives of some sections of the business community, were to be believed, the robbery involved an officer and some personnel of the Coast Guards as well as one of their official vehicles."

But the fact that allegations of a very serious nature have been publicly made against the Coast Guards, makes it a serious matter."

(Editorial of Daily Dawn, Karachi. dated 8‑7‑1993)

(Banner Headline of Daily "Qaumi Akbar", Karachi dated 6‑7‑1993).

9. The imputations show that they affected the reputation of the plaintiff itself as opposed solely to the reputation of its individual officers and can reasonably be understood as referring to the plaintiff organisation itself. The above are few exhibits, which I have reproduced. The plaintiff's witness has produced several other newspaper cutting showing such imputation. I am, therefore, inclined to hold that the action for libel is maintainable in the present circumstances of this case and that the defendant having raised no defence at all, the plaintiff has proved its case.. This brings me now to the question of quantum of damages.

10. The plaintiff has not prayed for special or exemplary damages and from the evidence as well it appears that it is claiming only general damages for harm to reputation. I have gone through a number of cases in which general damages have been awarded. See Dr. Q.M. Qarni v. Khalilur Rehman PLD 1975 Ku. 379 (Rs.15,000 awarded as general damages), Muhammad Ansarul Islam Qarni, Advocate v. Karachi Stock Exchange Limited (PLD 1975 Kar. 556) (Rs.28,000 awarded as special and general damages), Abdul Aziz v. Rafique Akhtar (1988 MLD 566) (Rs.40,000 awarded as general damages) and Altaf Gauhar v. Wajid Shamsul Hassan (PLD 1981 Kar. 515) (Rs.25,000 awarded as general damages). In the case of Abdul Aziz this Court decreed the plaintiff's suit for Rs.40,000 against defendant No. l with the interest at the rate of 6% for publication of a news item dated 19‑7‑1973 published in daily Morning News, Karachi, as a result of press conference organised by the defendant No. 1. The rule laid down by this Court in the case of Abdul Aziz (supra) is fully attracted to the facts of the present case.

11. The imputations in the case of Abdul Aziz v. Rafiq Akhtar were made in July, 1973. In the instant case the imputations were made in a press conference in June, 1993. There is a difference of almost 20 years between the publication of the imputations in the case of Abdul Aziz and the existing case. To grant a decrease in real terms of the value of money, a sum of Rs.40,000 in the circumstances of this case here no defence has been pleaded would be a meagre amount. The circulation of the newspapers like Jang and Dawn are commonly known to be the widest in Pakistan. The libel has been reproduced in f at least other four newspapers. There is no defence whether by way of justification, fair comment or privilege. I am, therefore, inclined to award a sum of Rs.5,00,000 (Rupees five lacs) by way of general damages with proportionate costs.

A.A./P‑19/K Suit decreed.