ABDUL AZIZ Versus RAFIQ AKHTAR

1. This is a suit for recovery of Rs. 1,00,000 filed by the plaintiff. The case of the plaintiff is that he is a legal practitioner of standing, a man of social position, and had remained as legal adviser, and a Director of the Board of Karachi Electric Supply Corporation Limited. Four Directors of the Board of K.E.S.C. were retiring and the said vacancies were to be filled up by election at the Annual General Meeting of K.E.S.C.. which had been called on 12‑7‑1973 at 4.30 p.m. The vacancies of the retiring Directors were notified to the shareholders in the annual report of 1972. That due to death of one Director during the year 1972, a casual vacancy also occurred on the Board of Directors of K.E.S.C. This casual vacancy could be filled up by the Board of Directors according to the Articles of Association of K.E.S.C., but it was not filled and was considered desirable to be filled up, though not notified in the said annual report, and in the notice through which General Meeting was called on 12‑7‑1973. That the defendant No. 1 is a shareholder of K.E.S.C. and was desirous of contesting election to one of the aforesaid vacancies occurring on the Board of Directors o f K.E.S.C. and had filed a nomination paper for tic same. The plaintiff was also seeking election for one of the above‑mentioned vacancies on the Board. Annual General Meeting of K.E.S.C. started at 4.30 p.m. on 12‑7‑1973 in accordance with the agenda. At the General Body Meeting, the objection was raised that as there was no notice of the vacancy occurring due to the death of Directors, its election should not be held in the aforesaid meeting. Whether there were 4/5 vacancies, the defendant No. 1 found that he had no chance as proxies of the Central Government which is a major shareholder with deciding voting strength were to be cast in favour of the other candidates including the plaintiff. There were three nominees of the Central Government to be elected on the Board, the other two persons namely Mr. Rashid Chinoy and the other, the plaintiff were to be supported with the Government votes. The defendant No. 1 objected to the support of the said two persons by the Government votes. The defendant No. 1 and his supporters in their effort to upset election programme, pressed for adjournment and that led to uproar and threats of boycott etc. The meeting was adjourned to 19th July, 1972 and thereafter the defendant No. 1 started his propaganda campaign. In this connection he held a press conference also. On 19‑7‑1973 there appeared news in "Morning News paper" on it's back page (8) under the caption: "K.E.S.C. accused of easing private sector Directors". A report of the press conference addressed by the defendant No. 1 at the Karachi Press Club. The portion of the said report relevant to the facts of the present case/suit is as under:‑‑

2. "Mr. Akhtar alleged glaring irregularities in the affairs of the Corporation. He said that the share of private shareholders' profit had slumped from Rs. 4 Crore till recent years to Rs. 1 crore. He also said that one of the Directors was paid Rs. 42,450 in 1971 and Rs. 92,500 in 1972 for `Legal advice' which he was supposed to have rendered to the Corporation. Similar irregularities had taken place in the appointment of management consultants for the K.E.S.C. about three years ago."

3. That according to the plaintiff the above statement made by defendant No. 1 was false and dishonest to the knowledge of the defendant, and was per se defamatory. No such amounts as alleged were paid for "Legal advice". The mala fides are too obvious. That the defendants Nos. 2, 3 and 4 are proprietor, editor and printer and publisher respectively of the `Morning News' and were liable for circulating and publishing the above libel. The plaintiff received several telephone calls on 19‑7‑1973 from persons and shareholders of K.E.S.C. and others censuring him fur abusing and exploiting his position as Director. The plaintiff found the mischief intended had worked its part and exposed the plaintiff to contempt, hatred and obliquy causing a grievous injury with the result that he decided to withdraw from the election. Therefore, the above suit was filed for a sum of Rs. 1,00,000 with interest at 6% per annum from the date of suit till the amount was recovered.

4. The defendants were served with the summons and the defendant No. 1 filed his written statement in which he denied the contents of para. 1 of the plaint. The fact regarding calling of meeting was admitted but according to him it was not mentioned in the notice as to how many vacancies will be filled. He admitted the contents of para. 2(b) of the plaint so also para. 3 of the plaint. As regards para. 4(a) of the plaint his case was that the objection regarding the election for the seat of an expired Director was legal as the same was not notified to the shareholders, and therefore the election for that scat could not be held in that meeting of 12‑7‑1973. The Central Government always nominated the persons for the seats of Directors, it never utilized its votes in favour of private candidates. Contents of para. 4(b) were vehemently denied. According to him, the meeting had to be adjourned because of certain legal formalities. He denied the contents of para. 5 of the plaint. According to him, the K.E.S.C. was a public concern and it was open for the public at large to criticise its affairs and dealings if it was working against the interest of general public and shareholders. It was open to the public not to allow the running of a public body against the interest of public at large. As regards the legal fee of the plaintiff the defendant was given an account by the management that in the year 1972 Rs. 29,500 was paid to the plaintiff as legal fee. The figure of Rs. 92,500 was a misprint which was cleared from the other newspapers published on the same day. The annual report contained a figure of Rs. 30,200 out of which Rs. 29,500 was paid to the plaintiff which was announced even by the Chairman of the Corporation in the General Body Meeting held on 12th July, 1973 and the same was paid to one of the Directors. The figure of Rs. 42,450 was probably wrongly printed for the year 1971. The plaintiff was not defamed if certain irregularities were pointed out regarding the K.E.S.C's. business. That the payment of the above figure was given by the management of the Corporation, and the same were reported. He has denied the contents of para. 7 of the plaint and has further stated that the plaintiff ought to be put to strict proof for the same. The plaintiff withdrew from contest because of the lack of support from the voters and not for the said reason, as the defendant had deposited huge proceeds which pertained to almost majority of the shareholders. The contents of para. 8 were denied and it has been stated that he never said any words which could have been libelous. The defendant No. 1 had made fair comments about the affairs of a public corporation. The plaintiff had no cause of action, the suit was frivolous, vexatious and was based on distorted facts, and therefore, the same may be dismissed with costs.

5. The defendants Nos. 2, 3 and 4 filed their written statement jointly. It was stated in the written statement that the suit was not maintainable in view of Articles 4 and 5 of the Constitution of the Islamic Republic of Pakistan of 1973, and Articles 4 and 5 of the Interim Constitution. The plaintiff could not claim compensation and the same was not maintainable. That the suit was not maintainable for non‑joinder of reporter of daily Morning Newspaper who had attended the conference. That they were not aware of the contents of paragraphs t_ Nos. 1, 2, 3, and 4 of the plaint and therefore the same were denied for want of knowledge. With regard to para 5(a) it has been stated that on 18‑7‑1973 defendant No. 1 had called a press conference at the Karachi Press Club and in the said cos;i, r, . : he alleged glaring irregularities in the affairs of the Karachi Electric Supply Corporation. The said conference was attended by one of the staff reporters of the Morning News and since the allegations made by defendant No. 1 involved an organization of great public importance and since those allegations were by a shareholder of K.E.S.C. as well as by a person who claimed to hold proxies of 70 lacs worth of private shares and entitlement to directorship, the gist of the news conference was published in good faith, innocently, in public interest and without any actual malice and/or gross negligence in the issue dated 10‑7‑1973. The gist of the news conference was correctly and truly reported. They y, admitted to be proprietor, editor printer and publisher of the Morning News but they denied that they were liable in any manner whatsoever for circulating and publishing the said news conference. The contents of paras. 6 and 7 of the plaint were denied for want of knowledge. As regards para. 8 of the plaint it has been stated that they are neither equally nor otherwise liable for the alleged wrong for publishing the news and the contents are denied. With regard to para. 9 of the plaint, it was stated that the contents of para are denied and the plaintiff was not entitled any damages. It has been further stated that before filing of the suit neither any notice nor any contradiction in writing or otherwise giving different/contrary version was received by the answering defendants either from the plaintiff or from K.E.S.C. and in case the same had been received, the answering defendants would have published the same a they did not bear any malice or ill‑will against the plaintiff or against K.E.S.C. The gist of the news conference was published in good faith, in public good, in public interest, innocently and without any actual malice and/or gross negligence and therefore they were not liable to pay any compensation. It was public and moral duty of the ering defendants to ',nng to the notice of the readers of the Morning News matters of public importance and matters/affairs relating to organization of public importance and of public utility service. The conference was held by defendant No. 1 at the Press Club and under the circumstances there was no occasion to believe that whatever was said at the news conference by the defendant No. 1 was without any basis/substance/foundation or was frivolous or xatious. That the plaintiff had no cause of action and he was not entitled to any relief claimed by him.

6. On the pleadings of the parties the following issues were framed:‑‑

7. "(1) Whether the report published in the daily `Morning News' dated 19‑7 1973 about the plaintiff is defamatory, libelous as per para 5 of the plaint?

(2) Whether the report. as published by the defendants Nos. 2 to 4 could be treated as fair comments and in the interest of the public?

(3) Whether the figure of legal fee published by the defendants Nos. 2 to 4 is a misprint as stated in para. ~~b) of written statement of defendant No. 1?

(4) Whether suit against defendants Nos. 2‑to 4 is not maintainable?

(5) Whether staff reporter of Morning News is a necessary and proper party to the suit and if so, what is the effect of his not being a party to the suit?

(6) Whether the gist of the News Conference was published in Morning News in good faith, innocently, in public interest, and without any actual malice and or gross negligence and if so, what is the effect?

(7) Whether the plaintiff is entitled to claim the damages as prayed?

(8) Is it the public and moral duty of defendants Nos. 2 to 4 to bring to the notice of readers of Morning News matters of public importance and of public utility service and if so, what is the effect?

8. I have heard Mr. A.R. Akhtar, learned counsel for the plaintiff, Mr. MA. Rafiq, learned counsel for the defendant No. 1, and Mr. Syed Safdar Hussain, learned counsel for the defendants Nos. 2 to 4.

9. The plaintiff has examined himself as Ex. 6 and has produced the newspaper cutting as Ex. 6/1. On the other hand the defendant No. 1 had examined himself, and has also examined Mr. S.M. Azad Chief Reporter of daily `Morning News'. I will now deal with issues:‑‑

10. ISSUE NO. 1 :

11. So far as the publication of the alleged news in daily `Morning News' dated 19‑7‑1973 was concerned, its publication has not been disputed. It is further proved through the newspaper cutting Ex. 6/1. The only question that remains to be decided is whether the figure of legal fee is defamatory and libellous as alleged by the plaintiff. In order to succeed in an action for defamation the plaintiff has to~ prove:‑‑

(a) That the words complained of are defamatory;

(b) That they referred to the plaintiff; and

(c) That there has been publication to a third party.

12. In the present case it was the case of the plaintiff in para. 5‑A of the plaint that the defendant No. 1 started propaganda campaign against hint because of the election rivalry and addressed a press conference al Karachi Press Club news regarding which were published in the `Morning News' dated 19‑7‑1973, under the caption:‑‑

13. "K.E.S.C. accused of casing private sector Directors."

14. It further went on to say that:‑‑

15. "Mr. Akhtar alleged glaring irregularities in the affairs of Corporation. He said that the share of private shareholders' profit had slumped from Four Crores till recent years to Rs. One Crore. He also said that one of the Directors was paid Rs. 42,450 in 1971, and Rs. 92,500 in 1972 for "Legal advice" which he was supposed to have rendered to the Corporation. Similar irregularities had taken place in the appointment of management Consultant for the K.E.S.C. about 3 years ago."

16. The above allegations have been repeated by the plaintiff in his evidence. He has further stated that he received telephones from various friends and other persons and the impression given to him by them was that he was cheating the Corporation through his agency as a Director of K.E.S.C. That he was fraudulently taking away money from K.E.S.C. and the amounts which were taken by him were unlawful for a man like him. That as a Director he was only paid the directorship fee of about Rs. 50 for attending a meeting. Whenever he was engaged to represent K.E.S.C. in any case or suit he was paid his fee as Lawyer. the figures mentioned in Ex. 6/1, are false, dishonest and malicious. In tross examination he has stated that he did not remember as to in how many cases the K.E.S.C. engaged him in the years 1971 and 1972. He did not remember whether he had charged Rs. 29,000 as professional fee in the year 1972. The defendant No.

17. 1 has not denied the holding of Conference but the stand taken by him was that in the Press Conference he had stated that in the year 1971 Rs. 40,000 and in the year 1972 Rs. 29,500 were paid as legal fee. These figures which he had oven were based on individual report of K.E.S.C. He had also pointed out that since inception of the Board of Directors there had been no election of Director` and no public representative was allowed because of manuvering mainly because the Secretary of K.E.S.C. was "Samadhi" of the plaintiff and other vested interest. He has absolutely no intention to defame the plaintiff. This was on dispute of principle. From the above evidence, it is clear that relations between the plaintiff and defendant No. .1 were strained and the portion of the news item mentioned A above clearly refers to the plaintiff. That the figures published were incorrect and misleading, therefore, this issue is answered in affirmative.

18. ISSUES NOS. 2 3 6 AND 8:

19. In view of the fact that these issues are inter‑connected, therefore the same are taken up together. It has been admitted by the defendant No. 1 that he had addressed a press conference at Karachi Press Club. He has also not denied the allegations published in the news item except the difference of amount alleged to have been paid to the plaintiff. The case of the defendants Nos. 2 to 4 is that since the allegations made by defendant No. 1 involved organisation of great public importance and since these allegations were made by a shareholder of K.E.S.C. as well by a person who claimed to hold proxies of 70 Lacs worth private shares, and entitlement of Directorship, the gist of the news of the press conference was published in good faith innocently, and in public interest and without any actual malice and/or gross negligence in the issue dated 19‑1‑1973. The gist of news conference was correctly and truly reported. The defendant No. 1 has examined Mr. S.M. Azad Chief Reporter of daily Morning News, who has deposed that an invitation for the press conference was sent to all the reporters including the reporter of Morning News who attended and reported whatever was stated at the press conference. The plaintiff had not served any notice on Morning News. MRA.R. Akhtar learned counsel appearing for the plaintiff has conceded that in view of the assertion made by the defendants Nos. 2 to 4 for having published the news regarding the press conference addressed by defendant 4 No. 1 in good faith, and no evidence having been led by defendant No. 1 regarding misunderstanding about the figures, the defendants Nos. 2 to 4 were not liable for damages. The defendant No. 1 has not produced any evidence to show that figures of Rs. 92,000 and Rs. 42,450 were misprinted. He leas not produced any other newspaper or news reporter to show that he had mentioned the amounts of Rs. 29,500 and Rs. 30,200 instead of Rs. 92,500 and Rs.42,450. Therefore, it is clear that the defendant has failed to prove that the change in figures was by misprint or was due to misunderstanding.

20. In view of the above discussion issues Nos. 2, 6 and 8 are decided in affirmative, while issue No. 3 is decided in negative.

21. ISSUE N0.4 :

22. In view of the fact that news item in question was published by the defendants Nos. 2 to 4, the suit against them was maintainable, but in view of my finding on issues Nos. 2, 6 and 8, the suit against defendants Nos. 2 to 4 is dismissed with no order as to costs.

23. ISSUE NO. 5 :

24. This issue has not been pressed by the learned counsel appearing for the defendants Nos. 2 to 4.

25. ISSUE NO. 7 :

26. It is the case of the plaintiff that he has been practising law since 1953. At the same time he was social and political figure in Karachi. In 1946‑47 he was Secretary City Muslim League, Karachi, and as such, he had contacts with various prominent figures and used to enjoy a social status. In the year 1951‑52 he was appointed, nominated or elected as Director of K.E.S.C. In 1959, the Government of Pakistan had applied for loan from World Bank for K.E.S.C. and he was nominated by the Government as well as by K.E.S.C. to represent them at. Washington on the legal side. He was taken on the panel of Advocates of Central Government, legal advisor to the Income‑Tax Department, and Pakistan Industrial Finance Organisation. In 1966, he was elected as Member of National Assembly of Pakistan from Sialkot. From about 1952, till 1973, he remained Director of K.E.S.C. In 1973, when the annual General Meeting of K.E.S.C. took place, he was one of the candidates for election of Director. Mr. Rafiq Akhtar the defendant No. 1 was also candidate for one of the said posts. That the statement published in the newspaper was malicious and defamatory, and he was terribly upset due to above publication and, therefore, did not contest the election of K.E.S.C. thereafter. He has claimed Rs. 1,00,000 as damages. His evidence has not been shaken in cross‑examination in any way. The publication of news has not been denied by defendant 1. He has only stated that it was a misprint so far as the figures were concerned. The news item clearly shows that the defendant No. 1 had addressed the press conference in which he had made defamatory statement against the plaintiff and had made false allegations about the payment of huge amount which he himself has admitted with reservation that same were published by newspaper due to misunderstanding but no other evidence has been produced by the defendant No. 1 to show that he had given a correct figure and the figures published in the newspaper were either misprint or were mentioned due to misunderstanding. Mr. A.R. Akhtar, learned counsel for the plaintiff has contended that in view of the above circumstances it was proved that Press conference was held by the defendant No. 1 in which he had made false, malicious and defamatory allegations against the plaintiff, and the statement made by the defendant No. 1 in press conference was published in the `Morning News' and, therefore, the defendant No. 1 was liable to pay damages. The learned counsel in support of his contention relied upon:‑‑

(1) P L D 1970 Kar. 315

(2) P L D 1975 Kar. 379

(3) P L D 1981 Kar. 515

27. Mr. MA. Rafiq, learned counsel for the defendant No. 1 has contended that defendant had no malice against the plaintiff and that he had addressed a press conference and narrated the facts in good faith and for public good.

28. Therefore, the defendant No. 1 was not liable to pay damages.

29. I have considered the contentions of the learned counsel. In case of Altaf Gohar v. Wajid Shamsul Hasan and another P L D 1981 Kar. 515 it was held by this Court that in order to succeed in an action for defamation the plaintiff has to prove:‑

(a) that the words complained of are defamatory;

(b) that they refer to the plaintiff and

(c) that there has been publication to a third party.

30. If all these elements are proved by the plaintiff, the facility of the charge and malicious are presumed by the Court. If, however, the defendant succeeds m proving that what is stated by him is true and privileged, then the plaintiff has to further establish malice on the part of defendant.

31. In the case of Harold Robert Hency Lind v. British Insulated Callender's Constructions Co. Ltd. P L D 1970 Kar. 315; it was observed by this Court that:‑‑

32. "Defendant publishing words irrelevant and unnecessary for protection of his interest and such words also false to his knowledge, facts sufficient to prove actual and express malice, defence of qualified privilege in circumstances, held, not sustainable."

33. In the case of Dr. O.M. Oarni v. Mir Khalilur Rehman and 4 others; P L D 1975 Kar. 379, it was observed that :‑‑

34. "In an action for damages for libel it is not part of plaintiffs duty to prove that words complained of arc false for law presumes that in his favour. Since the defendants have pleaded justification as their defence the onus was on them to prove that the imputations were true and not merely that they believed them to be true."

35. I am in respectful agreement with the above observations, and hold that the plaintiff was entitled damages. However, the question of amount of damages requires consideration. The plaintiff has claimed Rs. 1,00,000 against the defendants for publication of the defamation concerning him. However, he has not led any evidence on quantum of damages. The learned counsel for the plaintiff urged at the time of arguments that keeping in view the circumstances of the case and social status of plaintiff in life, amount claimed as damages may be decreed. On the other hand, Mr. M.A. Rafiq, learned counsel for defendant No. 1 has contended that the plaintiff having failed to prove special damages, he was not entitled to general damages as well. In the case of Altaf Gohar v. Wajid Shamsuddin it was observed by this Court that:‑‑

36. "The grant of general damages in proceedings of this nature where plaintiff succeeds in proving defamation is inherent in the action as the law presumes that some damage must have resulted to plaintiff by publication of defamatory and libellous statement which is actionable.

37. There is, however, no rule of law regulating assessment of general damages in such cases. It is left to the jury in England and to Judge in this country to assess the damages. The assessment of damages in such cases is therefore not capable of any exact appraisement. However, while assessing the amount of general damages, it must be kept in view that damages for defamation are compensatory in nature and therefore the amount assessed should not appear to be punitive or exemplary. No doubt on proof of certain facts the Court may grant even punitive or exemplary damages but these need not be discussed here as neither such damages are claimed by the plaintiff nor a case for their grant is made out here."

38. The question of grant of general damages was considered in the above three cases referred to by me, and in the case of Harold Robert Hency Lind Rs. 10,000 were allowed as general damages, while in the case of Dr. Q.M. Qarni Rs. 15,000 were allowed as general damages inspite of existence of mitigating circumstances as the defendants in that suit were prepared to publish in their paper, the version of the controversy. While in the case of Altaf Gohar Rs. 25,000 were allowed as general damages.

39. In view of the above discussion, and looking to the circumstances of this case as well as legal position, I am of the considered view that the sum of Rs. 40,000 (Rs. Forty thousand) only as damages will adequately meet the ends of justice. Accordingly .the suit is decreed against the defendant No. I for a sum of Rs. 40:000 (Rs. Forty thousand) only with proportionate cost. The defendant No. 1 is also liable to pay interest at the rate of 6 % from the date of filing of the present suit. The suit against the defendants Nos. 2 to 4 is hereby dismissed.

40. AA./A‑376/L

41. Suit partly decreed.