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2023 M L D 525
[Lahore (Rawalpindi Bench)]
Before Ahmad Nadeem Arshad and Ch. Muhammad Masood Jahangir, JJ
CHIEF EDITOR MUHAMMAD RIAZ ANJUM and others---Appellants
Versus
Dr. MOHAMMAD SHAHBAZ---Respondent
Regular First Appeal No. 140 of 2012, heard on 19th May, 2022.
(a) Defamation Ordinance (LVI of 2002)---
----S. 3---Defamation---Libel and slander---Scope---Defamation is publication of
statement which reflects on a person's reputation and tends to lower him in the
estimation of right-thinking members of the society generally or tends to make
them shun or avoid him---Defamation takes forum of two separate torts i.e. libel
and slander---Libel is actionable per se and injury to reputation is presumed---
Whether a case is one of libel or slander, three elements must be proved by
claimant: (a) the imputation must be defamatory; (b) it must identify or refer to the
claimant; (c) it must be published/communicated to at least one person other than
the claimant.
(b) Defamation Ordinance (LVI of 2002)---
----Ss. 3, 8 & 9---Suit for defamation---Recovery of damages---Magnitude of
suffering---Determination---Statutory notice, issuance of---Proof---
Appellants/defendants were aggrieved of judgment and decree passed against them
by Trial Court for publishing derogatory words against respondent/plaintiff in their
newspaper---Validity---No yardstick existed to gage such damages in monitory
terms---While assessing damages on account of such inconvenience, Court was to
apply a rule of thumb by exercising its inherent jurisdiction for granting general
damages on a case to case basis, whereas, special damages were defined as the
actual but not necessarily the result of injury complained of---While awarding
special damages, it was to be kept in mind that the person claiming special damages
had to prove each item of loss with reference to evidence brought on record---Such
determination also included out of pocket expenses and loss of earnings incurred
down to the date of trial and was generally capable of substantially exact
calculation---Burden in such situation, like in all cases, was on the shoulder of
respondent/plaintiff to prove magnitude of such suffering---Before initiating
proceedings one had to give fourteen days' notice under S. 8 of Defamation
Ordinance, 2002, to the wrong doer within two months of publication of
defamatory material or its knowledge---If there was no response by the other side,
then suit for defamation could be filed under the law---Respondent/plaintiff sent
notice to appellants / defendants but they did not receive it personally---Statement
of postman was on record; copy of legal notice, and original receipts of registered
post which proved that respondent/plaintiff had fulfilled requirement of S. 8 of
Defamation Ordinance, 2002---High Court declined to interfere in judgment and
decree passed by Trial Court and suit of respondent/plaintiff was right decreed in

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his favour by properly appreciating evidence and record---Appellants/defendants

failed to point out any mis-reading and non-reading of evidence or record and
judgment/decree was well reasoned and not open to any exception or interference
by High Court---Appeal was dismissed accordingly.
Munawar Ahmed, Chief Editor Daily Sama and another v. Muhammad Ashraf
and others PLD 2021 SC 564; Liberty Papers Ltd. and others v. Human Rights
Commission of Pakistan PLD 2015 SC 42; Zafar Hijazi, Chief Editor, Daily
Muhasib Abbottabad and 4 others v. Muhammad Ayaz Mushwani 2020 CLC 618
and Said Rasool v. Dr. Hamayun Khan and 4 others 2014 MLD 1199 rel.
Ch. Muhammad Zubair for Appellants along with Appellant.
Respondent in person along with Sikandar Ali and Ch. Zaheer Hussain Minhas
for Respondent.
Date of hearing: 19th May, 2022.
JUDGMENT
AHMAD NADEEM ARSHAD, J.---This Regular First Appeal is preferred
under section 15 of the Defamation Ordinance, 2002, against judgment/decree
dated 06.03.2012 whereby respondent's suit for recovery of Rs.1,00,00,000/- was
decreed by the learned Trial Court to the extent of Rs.5,00,000/- only.
2. Succinctly, necessary facts forming background of instant appeal are that the
respondent/plaintiff instituted a suit for recovery of damages under section 9 of the
Defamation Ordinance, 2002 (Ordinance LVI of 2002) (hereinafter referred as the
Ordinance, 2002), against the appellants by contending that he is a Doctor by
profession and presently posted at DHQ, Chakwal, whereas, appellants are Chief
Editor and Editor of newspaper "Weekly Press Forum, Chakwal" who published a
news by using following derogatory words for him:

He adds that the above named newspaper is circulated throughout the district
Chakwal and other districts and the publication of derogatory words referred supra
against him lowered his esteem in his family/society due to which he suffered loss
to his health as well as status, hence, prayed for recovery of Rs.1,00,00,000/- as
damages. On the contrary, appellants contested the suit by filing written statement
in contrast. Although, they prayed for dismissal of suit, yet neither they denied to
be Chief Editor and Editor of the newspaper nor refused the publication of said
news by them with a stance that the news was based on facts as regarding the
occurrence an inquiry was held whereby respondent/Doctor was found guilty.
3. Learned Trial Court, out of divergent pleadings of the parties, framed
following issues:
1. Whether plaintiff has no cause of action? OPD
2. Whether the suit is hit by provisions of Order VII, Rule 11, C.P.C.? OPD

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3. Whether the Defendants being Editor and Chief Editor of weekly Press Forum
Chakwal published in their newspaper defamatory news against the plaintiff
as alleged in the plaint injuring his reputation? OPP
4. Whether the plaintiff is entitled to recover Rs.1,00,00,000/- as damages from
the Defendant under section 9 of Defamation Ordinance, 2002? OPP
5. Relief.
Evidence of the parties was invited. After recording the same, pro and contra,
learned Trial Court decreed the suit of respondent vide judgment and decree dated
06.03.2012, (hereinafter referred to as impugned judgment and decree). Feeling
aggrieved, appellants preferred instant appeal.
4. Learned counsel for the appellant contends that impugned judgment and
decree is against the law/facts as well as result of mis-reading and non-reading of
evidence available on record; that learned Trial Court failed to consider the report
of police station Chakwal; that impugned judgment/decree has been passed in a
fanciful and capricious manner which is not sustainable under the law; that the
respondent failed to prove sending of notice which is mandatory requirement of
law. In last, prayed for acceptance of appeal in hand and dismissal of respondent's
suit.
5. Conversely, learned counsel for the respondent maintains that impugned
judgment/decree has been passed in accordance with law. He adds that learned Trial
Court has already decreed a meager amount and this Court while acknowledging it
previously directed them to come prepare on the question that why amount given in
the impugned judgment may not be enhanced. Finally prayed for dismissal of
appeal.
6. We have heard learned counsel for the parties at length and perused the record
with their able assistance.
7. It evinces from record that through the suit, respondent/Doctor has knocked
the doors of the Court with allegation that appellants have published a news in their
newspaper "Weekly Press Forum Chakwal" by using derogatory words
for him due to which his repute was damaged in the society. In order to substantiate
his version, he himself appeared as P.W.1, whereas, produced Dr. Mohammad
Shakeel as P.W.2 and Mohammad Usman Postman as P.W.3. In documentary
evidence, tendered news-cutting as Exh.P.1, registered postal receipts as Exh.P.2
and Exh.P.3 respectively. Contrariwise, appellants admitted to be Editor and Editor
in Chief of "Weekly Press Forum Chakwal" by acknowledging that the news has
been published by them, with a stance that it is based on true facts and the
respondent is not enjoying good repute. In order to defend themselves, appellant
No.1 appeared as D.W.1, got examined Ghulam Abbas as D.W.2 and Khalid Javed
as D.W.3, whereas, submitted Exh.D.1 to Exh.D.7 in documentary evidence. It is
pertinent to mention here that D.W.2 and D.W.3 are the relatives of the lady
regarding whose death news was published in the newspaper and they just tried to
establish the negligence of respondent towards the death of deceased.

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8. It is settled principle of law that defamation is the publication of a statement

which reflects on a person's reputation and tends to lower him in the estimation of
right-thinking members of the society generally or tends to make them shun or
avoid him. Defamation accordingly takes the forum of two separate torts i.e. libel
and slander. There is no cavil to the proposition that libel is actionable per se and
injury to reputation will be presumed. However, whether the case is one of libel or
slander, the following elements must be proved by the claimant:-
a. the imputation must be defamatory;
b. it must identify or refer to the claimant;
c. it must be published/communicated to at least one person other than the
claimant.
9. Defamation is defined under section 03 of the Ordinance, 2002, which reads
as under:
"(1) Any wrongful act or publication or circulation of a false statement or
representation made orally or in written or visual form which injures the
reputation of a person, tends to lower him in the estimation of others or
tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred
shall be actionable as defamation.
(2) Defamation is of two forms, namely:-
(i) Slander; and
(ii) Libel.
(3) Any false oral statement or representation that amounts to defamation shall
be actionable as slander.
(4) Any false written, documentary or visual statement or representation made
either by ordinary form or expression or by electronic or other modern
means of devices that amounts to defamation shall be actionable as libel."
10. The main ingredient constituting defamation is publication of defamatory
statement in widely circulated newspaper or spoken in a large gathering. For
constituting defamation:-
(a) The allegations levelled against the plaintiff should be false, baseless and
unfounded;
(b) The wordings used and the allegations levelled, in on the face of it, should
have been defamatory derogatory nature;
(c) Such allegations should have been published in widely circulated newspapers
or spoken in a large gathering;
(d) The said publications made or wordings used should have been with malice
without any reasonable cause and justification;
(e) The allegations should have been directly attributed to the plaintiff by
specifically mentioning his name;

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11. Publication of defamatory matter is an actionable wrong without proof of

special damage to the person defamed and where defamation is proved, damage
shall be presumed as defined in section 04 of the Ordinance, 2002.
12. Oral as well as documentary evidence produced by the respondent is in-line
with his pleadings and proved on record that the derogatory words used
for him damaged his reputation in the society. Although, PWs were
cross-examined at length, but nothing in favour of appellants came on record.
13. The defences available to the appellants provided in section 05 of the
Ordinance, 2002, as under:
In defamation proceedings a person has a defence if he shows that-
a) he was not the author, editor, publisher or printer of the statement complained
of;
b) the matter commented on is fair and in the public interest and is an expression
of opinion and not an assertion of fact and was published in good faith;
c) it is based on truth and was made for the public good;
d) assent was given for the publication by the plaintiff;
e) offer to tender a proper apology and publish the same was made by the
defendant but was refused by the plaintiff;
f) an offer to print or publish a contradiction or denial in the same manner and
with the same prominence was made but was refused by the plaintiff;
g) the matter complained of was privileged communication such as between
lawyer and client or between persons having fiduciary relations; and
h) the matter is converted by absolute or qualified privilege.
14. The appellants in their written statement and evidence as well have just tried
to prove the guilt and negligence of the Doctor towards the death of a patient,
whereas, they have neither negated to be Editor and Editor in chief of newspaper,
nor negated the publication of news by them rather they have reiterated that the
news was based on true facts. No material is available on record which suggest that
they probed into or any investigation was conducted by them to meet with the
requirements and parameters of an ideal journalism. This type of the illegality and
willful negligence on the part of the appellants cannot be overlooked and left
unattended, which is not only against the law applicable on the case, but also the
unwritten norms, values and conventions of at least a fair reporting and ideal
journalism. Further, this type of the negligence which is otherwise mandatory, is so
fatal which ruins the life of a person or family and sometimes may cause a risk to
life. There are many examples, even reported in the press, when because of this
type of the news published without mandatory inquiry, aggrieved person committed
suicide. Therefore, it can safely be observed, that the appellants published the
material against the respondent without establishing the veracity of the news item
or material, therefore, it is extreme example of yellow and irresponsible journalism.

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There was no justification of using derogatory words in the news. They also failed
to bring their stance within the ambit of section 05 of the Ordinance, 2002, and
even failed to raise any defense plea as provided in the section ibid.
15. Damages are provided as a remedy under section 9 of the Ordinance, 2002,
which are reproduced hereinunder for convenience:
"Where defamation shall be proved to have occurred, the Court may pass order
directing the defendant to tender an apology, if acceptable to the plaintiff,
and publish the same in similar manner and with the same prominence as the
defamatory statement made and pay reasonable compensatory damages as
general damages with a minimum of Rs.50,000/- (Rupees fifty thousands)
and in addition thereto, any special damage incurred that is proved by the
plaintiff to the satisfaction of the Court.
[Provided that in case of the originator the minimum compensatory damages as
general damages shall be three hundred thousand rupees.]
16. It appears that damages are defined under three headings; 1) compensatory,
2) general and 3) aggravated. Compensatory damages themselves can be divided
into general and special. If plaintiff, who wins a defamation action is entitled to an
award of general damages, compensating him for the injury to his reputation and
feelings by being proportionate to the damage which the plaintiff has suffered and
nothing greater than what is necessary to provide adequate compensation and to re-
establish his reputation. Now the question arises is to weigh the quantum of
damages for such loss caused to him by such wrongful act. General damages
normally pertain to mental torture and agony sustained through
derogatory/defamatory statement. Since, there is no yardstick to gage such damages
in monitory terms, therefore, while assessing damages on account of such
inconvenience, the Courts apply a rule of thumb by exercising its inherent
jurisdiction for granting general damages on a case to case basis, whereas, special
damages are defined as the actual but not necessarily the result of the injury
complained of. While awarding special damages, it is to be kept in mind that the
person claiming special damages has to prove each item of loss with reference to
the evidence brought on record. This may also include out of pocket expenses and
loss of earnings incurred down to the date of trial and is generally capable of
substantially exact calculation. The burden in such situation, like in all cases, is on
the shoulder of the plaintiff to prove the magnitude of such suffering. The august
Supreme Court of Pakistan in its esteemed judgment titled "Munawar Ahmed, Chief
Editor Daily Sama and another v. Muhammad Ashraf and others" (PLD 2021
Supreme Court 564) while dealing with same situation observed as under:
"Since such suffering could not be converted or gauged in monitory terms,
therefore, the Court has to apply rule of thumb. The other aspect which need
to be kept in mind by the Courts while awarding general damages on
account of mental torture/nervous shock is that damages for such suffering
are purely compensatory to vindicate the honor or esteem of the sufferer,
therefore, such damage should not be exemplary or punitive as the sufferer
should not be allowed to make profit of his reputation."

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17. The defamation of any person or citizen through spoken or written words or
any other means of communication lowers the dignity of a man fully guaranteed by
the Constitution, if anyone commits an act of malice by defaming any person,
would be guilty under the Constitution. No one can plead the unbridled right of
expression. Who would cross the red line of prohibition imposed by the
Constitution, attracting serious penal consequences under the law and the person
violating the same has to be dealt with under the law. The august Supreme Court of
Pakistan in its judgment cited as "Liberty Papers Ltd. and others v. Human Rights
Commission of Pakistan" (PLD 2015 Supreme Court 42) elaborated it in the
following words:

"10. Under the provisions of the Constitution of the Islamic Republic of

Pakistan, 1973, reputation of a person has received the highest protection in
Article 4(2)(a). Further under Article 14 the dignity of man and, subject to
law, the privacy of home, shall be inviolable right of each and every citizen.
The defamation of any person or citizen through spoken or written words or
any other means of communication lowers the dignity of a man fully
guaranteed by the Constitution, thus, not only is it the constitutional
obligation of the State but all the citizens and persons living within the State
of Pakistan to respect and show regard to dignity of every person and citizen
of Pakistan otherwise if anyone commits an act of malice by defaming any
person, would be guilty under the Constitution and would cross the red line
of prohibition imposed by the Constitution, attracting serious penal
consequences under the law.

11. No lenient treatment shall be shown to anyone in this regard nor anyone can
plead the unbridled right of expression and right to have access to the
information when the subject matter is disgraced, his/her dignity brought to
almost naught because the rights with regard to expression and access to
information are regulated by law, rules and regulations under which the
license is granted under the Press and Publication laws.

12. It is true that media as a whole is playing a vital role in reshaping our
political and social life, creating awareness amongst the masses about their
rights and responsibilities as well as against corruption. While performing
such noble duties, the media is equally required like any other citizen to
abide by the provisions of the Constitution, the code of ethics, the rules and
regulations and not to resort to mud-slinging by violating standards of true
professional ethics as irresponsible and derogatory reporting of news would
diminish its own credibility in the eyes of readers and viewers."

18. While describing numerous "Aayats" and "Hadiath" on the subject, Peshawar
High Court in a judgment reported as "Zafar Hijazi, Chief Editor, Daily Muhasib
Abbottabad and 4 others v. Muhammad Ayaz Mushwani" (2020 CLC 618) observed
that being Muslim we are under legal obligation to adhere to the commands of
Allah Almighty and "Sunnah" of our Holy Prophet Hazrat Muhammad (peace be
upon him) whereby it is laid down that we should avoid backbiting and slander and

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Islam strictly prohibit reporting of libelous materials. Even it prohibits reporting

bad deeds of a person considering it a backbiting, what to say about slander.
19. The appellants were unable to establish the factual correctness of the
material published, malice on the publisher's part would stand established through
implication. Unapologetic behaviour of appellants could lead to award of damages.
The contents of the news and its publication is sufficient proof of defamation. The
act of the appellants is an actionable wrong under the Ordinance, 2002, and the
same has been established/proved. In such like situation, formal and further proof
of the defamatory material would not be required.
20. The learned counsel for the appellants argued that no legal notices were
served on the appellant's as the respondent failed to prove issuance of legal notice
and thus mandatory provision of section 8 of the Ordinance, 2002, has not been
complied with.
21. Section 8 provides that before initiating proceedings under the Ordinance
ibid, one has to give fourteen days' notice to the wrong doer within two months of
the publication of the defamatory material or its knowledge and if there is no
response by the other side, then the suit for defamation could be filed under the law.
Section 8 of the Ordinance, 2002, is reproduced for ready reference as under:
"No action lies unless the plaintiff has, within two months after the publication
of the defamatory matter has come to his notice or knowledge, given to the
defendant, fourteen days' notice in writing of his intention to bring an
action, specifying the defamatory matter complained of."
22. Plain reading of the above provision of law envisages that no action would
lie unless the plaintiff has given to the defendant, fourteen days' in writing of his
intention to bring an action with particulars of defamatory matter complained of
and that too within two months of the publication of the defamatory matter or from
the date of gaining knowledge thereof. It means that notice of action prior to filing
of any claim/suit for damages is must but the mode of communication of the same
is not the concern of the legislature as nothing special in this regard has been given
in the statute. Had there been any such intention, then the same would have been
expressly provided in the statute, like notice of "Talb-e-Ishhad" in pre-emption
matters. So, what can be gathered is that it can be by any means whether it is
through a messenger or through an ordinary post or any other possible mode and
purpose of the same is only to communicate one's intention to file a suit for
damages in case the wrong doer does not respond to the notice. It is not necessary
that this notice must be sent through registered post with its acknowledgment for
proof of its delivery. Reliance is placed on the case titled "Said Rasool v. Dr.
Hamayun Khan and 4 others" (2014 MLD 1199) In view of the admission made by
the appellant No.1 in his cross-examination that a notice was sent to him but he did
not receive it personally and also in view of the statement of the postman (P.W.3),
copy of legal notice dated 23.11.2010 (Mark-A), original receipts of registered post
(Exh.P.2 to Exh.P.4), the respondent proved that he fulfilled the requirement of
section 8 of the Ordinance, 2002.

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23. For the foregoing reasons, learned Trial Court has rightly decreed the suit of
respondent by properly appreciating the evidence and record. Learned counsel for
the appellants failed to point out any mis-reading and non-reading of evidence or
record. Impugned judgment/decree is well reasoned and not open to any exception
or interference by this Court.
24. The epitome of above discussion is that this appeal is without any
force/substance, hence, the same is dismissed accordingly. No order as to cost.
MH/M-155/L Appeal dismissed.

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