2016 C L C 1936
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ
HAZOOR BAKHSH and 2 others ----Appellants
Versus
Mir NASRULLAH KHAN----Respondent
Regular First Appeal No.2 of 2010, decided on 25th May, 2015.
(a) Civil Procedure Code (V of 1908) ---
----S, 9 & O.II, R.2---Defamation Ordinance (LVI of 2002), Preamble --- Malicious prosecution--
- Defamation --- Ingredients and proof ---Scope ---Publication of news item ---Mental agony ---
Damages ---Jurisdiction of Civil Court ---Scope ---Defamation Ordinance, 2002 did not contain
any ouster clause or any overriding effect qua jurisdiction of civil court ---Prior to promulgation
of Defamation Ordinance, 2002 the tort of defamation was actionable before civil court of
ordinary jurisdiction ---Civil courts being courts of ultimate jurisdiction could try suits with
regard to civil disputes unless their jurisdiction was expressly or impliedly barred---Suit for
defamation was maintainable before the civil court of ordinary jurisdiction ---Plaintiffs had not
pressed their claim or remedy under the Defamation Ordinance, 2002 rather opted to file suit
under S.9, C.P.C ---Litigants could choose either of two statutory remedies i.e. as provided under
the Defamation Ordinance, 2002 or the court of civil jurisdiction under S.9, C.P.C.---Hearsay
evidence was not admissible under the law ---Giving of any information with regard to
commission of crime did not constitute defamation rather it was duty of every citizen to inform
law enforcing agencies about commission of any crime ---Originator, publisher or printer of
material in question could be sued for damages but plaintiffs had not made any claim against
them which would constitute relinquishment of claim ---Plaintiffs had failed to prove that allege d
application for registration of criminal case was filed by the defendant ---Mere filing of
application would not amount to malicious prosecution---Person claiming to have been injured
must establish that his reputation had been diminished or his general r eputation in the estimation
of general public was tend to reduce him to ridicule due to unjust criticism and unnecessary
hatred had been created against him; that his reputation suffered due to circulation of said news --
-Nothing was on record to substantia te the claim of defamation ---Question of mental agony was
required to be established through cogent and reliable evidence ---Mere feeling of resentment in
one's mind was not sufficient to establish mental agony ---If a person claimed mental
torture/agony or damage/injury to his reputation, initial burden would lie upon him to lead
evidence on such point ---Suit was rightly dismissed by the Trial Court--- Appeal was dismissed
in circumstances.
M. Musa v. Muhammad and others PLD 1968 SC 25 and Ch. Zulfiqar Cheem a v. Farhan
Arshad Mir PLD 2015 SC 134 rel.
(b) Malicious prosecution ---
----Ingredients ---Ingredients to establish malicious prosecution were; that plaintiff was
prosecuted by the defendant; that prosecution ended in favour of plaintiff; that defendant ac ted
without reasonable and probable cause; that defendant was actuated by malice and that the
proceedings had interfered with plaintiff's liberty and had also affected his reputation and
plaintiff had suffered damages.
Niaz and others v. The State PLD 2006 SC 432 rel.
Ahsan Rafiq Rana for Appellants.
Nadir Ali Chalgari and Khurshid Anwar Khoso for Respondent.
Date of hearing: 14th January, 2015.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- This appeal is directed against
the judgment and decree date d 28.01.2010 ("impugned judgment") passed by learned Senior
Civil Judge, Dera Allah Yar (the "trial court") whereby suit filed by the appellants for "Recovery
of Damages to the tune of Rs.10,000,000/ - (one crore)" was dismissed.
2. The brief facts are that the appellants filed a suit for recovery of damages, to the tune of
Rs.100,000,00/ - (one crore) against the respondent on the strength that the plaintiffs (appellants
herein) are owners of vast agricultural land and have good reputation in the society and among
the people at large; that the appellants along with their Buzgers were cleaning the water course in
the area when one of their Buzgers namely Allah Dina son of Gaman Khan died during the work;
that a fictitious application was submitted before the I nspector General of Police Balochistan
against the appellants in which one Kalo Khan was shown as applicant, with the allegation that
the appellants forcibly sent the deceased Allah Dina under the bridge and started throwing bricks
over the bridge, therefore, the bridge collapsed and Allah Dina was seriously injured who was
taken to the Civil Hospital Jacobabad where subsequently, he succumbed to injuries; that the
application was forwarded to the DSP Dera Allah Yar for inquiry and after conducting inquiry,
the inquiry officer exonerated the appellants from the allegation; that during the inquiry it further
transpired that the said Kalo Khan disowned the application, therefore, it was concluded that the
application was filed by unknown person on behalf of Ka lo Khan; that the appellants presumed
and showed the probability that the said application was moved by the respondent with the
connivance of his brother Sanaullah, because, the respondent is Nazim of Union Council Noor
Pur, therefore he held a press -conference and leveled false allegations against the appellants for
causing death of Allah Dina; that the press -conference was published in Daily Mashriq Quetta on
27th September, 2007; that the reason behind the press -conference was to defame the appellants
among the general public, which was motivated with malice and mala fide because of civil
disputes and litigation pending between the parties; that due to the press -conference held by the
respondent not only serious damage was caused to the reputation and goo dwill of the appellants
but frustration and mental torture was also caused to the appellants, therefore, initially legal
notice dated 22.01.2007 was sent to the respondent and he was called upon to make the payment
of Rs.10,000,000/ - (one crore) as compens ation for causing damages to the reputation of the
appellants. The notice was not responded, therefore the suit on basis of aforesaid averments was
filed.
3. The respondent entered appearance and filed the written statement by raising certain legal
objecti on and also controverted the appellants' stance on merits.
4. The trial court out of the pleadings, framed the following issues:
"1. Whether defendant with connivance of his brother Sanaullah Khan, moved a fake
application on the name of Kaloo Khan to Inspector General Police Balochistan against
the plaintiffs?
2. Whether the court has got no jurisdiction to try this matter in view of defamation
law?
3. Whether defendant has held a press conference or given details in official capacity
as Nazim of said jurisdiction?
4. Whether reporter or publishing agency is equally liable for publishing the alleged
report in case of being false one or not?
5. Whether the plaintiff is entitled for relief claimed for?
6. Relief?"
5. The appellants in order to substantiate their claim produced six witnesses. PW -1, Gaman
son of Noor Muhammad is father of the deceased Allah Dina, who deposed that though his son
died when he was cleaning the water course, where a wall collapsed upon his s on, who was taken
to the hospital; that his son was accompanied by his cousin; that his son also contacted him from
the hospital on mobile phone and told him that no one is responsible for the incident.
P.W.2, Muhammad Azeem son of Peer Jan, appeared and deposed that he along with his
cousin Allah Dina and other relatives were cleaning the water course when a wall collapsed on
Allah Dina due to which he was seriously injured and was taken to the hospital. He also stated
that in the hospital the father of t he deceased talked with him on mobile, however, subsequently
the injured succumbed to his injuries.
P.W.3, Muhammad Banaras Najmi, SI, appeared as the representative of District Police
Officer, Jaffarabad and identified the photocopy of the inquiry report and also produced the
original inquiry report dated 16.08.2007, as Ex.P/1- A.
P.W.4, Aqeel Ahmed, SI, appeared as the representative of Regional Police Officer, Sibi
and produced copy of application dated 30.10.2007, as Ex.P/2, allegedly filed by one Kalo Khan
Bangar.
P.W.5, Dhani Bakhsh is the stringer correspondent of newspaper 'Daily Mashriq' Quetta,
who produced the original newspaper dated 27th September 2007, as Ex.P/3- A.
P.W.6, Nasrullah appeared and deposed that the deceased Allah Dina died accid entally
when he was cleaning the water course. He further deposed that the respondent held a press -
conference in which the death of Allah Dina was foisted upon the appellants. The said news was
published in 'Daily Mashriq', which caused serious damage to t he reputation and respect of the
appellants, which also caused mental agony to them.
Finally the appellants No.1, Hazoor Bakhsh appeared, who recorded his statement on his
behalf, as well as, on behalf of the rest of the appellants as their attorney. He deposed that on the
same lines as pleaded in the plaint and added that due to press -conference held by the
respondent, they have been defamed among the general public and also suffered mental agony.
6. The defendant (respondent herein) produced DW -1, Aqeel Ahmed SI, the representative
of DPO Jaffarabad and submitted the detailed inquiry report as Ex.D/1, statement of Kalo Khan
Ex.D/2, statement of Hussain Bakhsh Ex.D/3, statement of Ali Bakhsh Ex.D/4, statement of
Mahalo Ex.D/5, statement of Gulab Khan Ex.D/ 6, statement of Ghazi Khan Ex.D/7, statement of
Gul Hassan Ex.D/8, statement of Mehrab Khan Ex.D/9 and statement of Mst. Shaddadi Ex.D/10.
Finally the attorney namely Sanaullah, appeared on behalf of the respondent and recorded
his statement. He deposed on the same lines as narrated in his written statement, however he
added that the correspondent of the newspaper contacted the respondent on mobile phone and
asked him to verify the information about the death of Allah Dina, on which he confirmed that he
also heard about the said incident but cannot verify the facts as he was not present in his village.
He also produced copies of civil litigation pending between the parties.
On conclusion of trial the suit filed by the appellants was dismissed vide impugned
judgment and decree, which has been assailed through this appeal.
7. Mr. Ahsan Rafique Rana, learned counsel for the appellants and Messrs Nadir Ali
Chalgari and Khursheed Ahmed Khoso, learned counsel for the respondent were heard at length
and record of the case was also perused carefully.
8. It was pleaded on behalf of the appellants that a fictitious application was filed before the
IGP, which was not only collusive and managed but was filed by means of personation on the
name of one Kalo Khan. It was also pleaded that though the said Kalo Khan has denied the filing
of any such application but, the respondent with ulterior motives and mala fides in order to
defame the appellants held a press -conference, which was published in the newspaper, which
further diminished their reputation and in addition to their defamation among the general public
the mental agony was also caused to them, therefore, the respondent was asked to pay the
damages to the tune of Rs.10,000,000/ - (one crore). In rebuttal, the responde nt seriously
controverted the claim, as well as, denied the filing of application and holding the press -
conference.
9. The trial court framed the issues, therefore, we intend to discuss the pleadings and
evidence led by the respective parties in the light of issues framed by the trial court.
Issue No.1:
Whether defendant with connivance of his brother Sanaullah Khan, moved a fake
application on the name of Kaloo Khan to Inspector General Police Balochistan against
the plaintiffs?
The onus to prove this is sue was upon the appellants and in order to discharge the initial
burden, the official witnesses of police department were summoned, whereas PW -3, Banaras
Najmi, SI, appeared and produced the inquiry report, while PW -4, Aqeel Ahmed SI, appeared as
the repr esentative of RPO Sibi and produced the copy of inquiry report dated 30.10.2007. Both
these witnesses during cross -examination admitted that Kalo Khan has categorically denied the
filing of any such application. He also filed his affidavit before the inqui ry officer, stating therein
that no such application for initiating legal action against the appellants was filed by him. The
statements of both these witnesses were hopelessly silent about the fact that the said application
was either filed by the respond ent or was filed on his instigation. Since the documentary and oral
evidence produced by the appellants were also silent on this aspect, therefore, the appellants
failed to prove the allegation, thus this issued was rightly resolved in negative by the tria l court.
10. Issue No.2:
Whether the court has got no jurisdiction to try this matter in view of defamation law?
The onus of this issued was upon the respondent and he mainly relied upon the provision
of the Defamation Ordinance, 2002 ("the Ordinance"). It was asserted that all the cases relating
to the defamation exclusively fall within the jurisdiction of the District Judge, when the law itself
provides the forum for initiating the litigation no other court has jurisdiction to take cognizance
of defamat ion suit. As against that it was asserted on behalf of the appellants that the general
damages were claimed, which are governed by the law of Torts and is amenable to the
jurisdiction of the ordinary civil court. This issue is purely related to question of law.
The Ordinance was promulgated on 01.10.2002, and its preamble provides the object of
its promulgation, which states that:
"Whereas it is expedient to make provisions in respect of defamation and for matters
connected therewith or incidental thereto; "
The Ordinance contains only 16 Sections. On the other hand the Section 9 of the Code of
Civil Procedure 1908, contemplates the jurisdiction of the ordinary civil court, which reads as
under:
"Courts to try all Civil Suits unless barred. The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred."
The Hon'ble Supreme Court in case of M. Musa v. Muhammad and others (PLD 1968 SC
25), observed that the "English Common law in respect of tort of defamation was applicable in
Pakistan as matter of justice, equity and good conscience".
11. Bare perusal of the Ordinance reveals that the same does not contain any ouster clause or
any overriding effect qua jurisdiction of the ordinary civil court, which has been provided by the
legislature. Prior to its promulgation the tort of defamation was actionable before the civil court
of ordinary jurisdiction. Therefore, the courts in Pakis tan were entertaining the suits for damages
in respect of defamation and malicious prosecution under Section 9, C.P.C. Thus, the suit for
defamation was maintainable before the civil court of original jurisdiction. Even after
promulgation of the Ordinance, because the provision of the Ordinance prescribes the remedy to
enforce the right under the said Ordinance before the District Judge but without ousting the
ordinary jurisdiction of the civil courts. The basic concept of Section 9, C.P.C. is that the civi l
courts are courts of ultimate jurisdiction, which can try suits in respect of civil disputes, unless
their jurisdiction is expressly or impliedly barred. The Ordinance does not contain an express bar
with regards to jurisdiction of the civil courts. In t he present case the appellants have not pressed
their claim or remedy under the Ordinance rather opted to file the suit under Section 9, C.P.C. It
is always open to the litigant to choose either of two statutory remedies i.e. as provided under the
Ordinanc e or the court of civil jurisdiction under Section 9, C.P.C. Referenced in this regard is
made to the case of Ch. Zulfiqar Cheema v. Farhan Arshad Mir (PLD 2015 SC 134). Thus, in
view of above the trial court has rightly held that under the ordinary law the appellants have the
option to choose either of two remedies for claiming general damages, which in that case will be
governed by the law of torts. This issue qua the original jurisdiction of civil court is resolved in
negative.
12. Issue No.3:
Whether d efendant has held a press conference or given details in official capacity as
Nazim of said jurisdiction?
In order to prove this issue the appellants produced two witnesses, whereas, PW -6,
Nasrullah deposed that a press -conference was held by respondent, which caused serious
damages to the honour and dignity of the appellants and also caused mental agony to them.
However, in his cross -examination he denied the suggestion that neither any press -conference
was held by the respondent nor the statement published in newspaper was issued by him. He
voluntarily stated that he has heard from the people of the area that the said statement was made
in the press -conference of the respondent. Since this witness is neither an eyewitness of the
press -conference nor he wi tnessed that the respondent issued any such statement in front of him,
therefore, his statement being hearsay is not admissible in evidence and does not provide any
assistance to the appellants' cause.
PW-5, Dhani Bakhsh is the stringer correspondent of 'D aily Mashriq Quetta', who produced the
newspaper dated 27th September. This witness remained silent about holding any press -
conference by the respondent. However, perusal of newspaper produced by him shows that the
respondent had told him that he has come to know through people of the area about the incident.
While in his cross -examination he admitted that he was also informed by the people of the area
that the deceased Allah Dina had died in the incident. He further stated that he personally went to
the vi llage of the deceased where people of the area were talking on same lines, therefore he also
went to the police station, where SHO, Muhammad Jamal, told him that he is inquiring about the
incident. The statement of this witness has totally damaged the case of appellant as the stance of
the appellants in respect of holding press -conference by the respondent was not supported by this
witness. Even he being the stringer correspondent of the 'Daily Mashriq' remained firm during
his cross -examination that the sa id statement was oral and was reduced into writing by him.
Therefore, the appellants failed to establish that any press -conference was held by the
respondent. It is imperative to observe here that giving any sort of information about commission
of crime do es not constitute defamation rather it is a bounden duty of every citizen to inform the
law enforcing agencies about commission of any offence. Therefore, this issue was rightly
resolved by the trial court against the appellants.
13. Issue No.4:
Whether reporter or publishing agency is equally liable for publishing the alleged report
in case of being false one or not?
Though the provision of the Ordinance, as well as, the law of damages (torts) clearly
manifests that the originator, publisher or printer ca n be sued for damages but the appellants have
not made any claim against the reporter or the publisher of the news item, therefore, under Order
II, Rule 2, C.P.C. it constitutes the relinquishment of claim, as such no further discussion is
required for thi s issue.
14. Issue No.5
Whether the plaintiff is entitled for relief claimed for?
In the light of evidence brought by the parties and discussion made herein above the
claim of the appellants is twofold i.e. malicious prosecution and causing damages to the
reputation with mental agony to the appellants. The principle for grant or refusal of damages
with regard to malicious prosecution are laid down by the Hon'ble Supreme Court in case of
Niaz and others v The State (PLD 2006 SC 432), which reads as under:
1. That the plaintiff was prosecuted by the defendant.
2. That the prosecution ended in plaintiff's failure.
3. That the defendant acted without reason and probable cause.
4. The defendant was actuated by malice.
5. That the proceedings had inferred with p laintiffs liberty and had also affected her
(his) reputation.
6. That the plaintiff had suffered damages.
The appellants have failed to prove that the alleged application was filed by the
respondent. It needs no reiteration that mere filing of the applica tion would not amount to
malicious prosecution, inasmuch as, the appellants have claimed general damages for mental
torture but they have failed to distinguish the damages for malicious prosecution and general
damages for mental torture and defamation.
15. For establishing the alleged defamation the person claiming to have been injured must
establish that his reputation has been diminished or due to the action of respondent his general
reputation in the estimation of general public is tend to reduce him to ridicule due to unjust
criticism and unnecessary hatred has been created against him; that he is no more enjoying good
reputation among the general public due to circulation of the said news. Since the appellants did
not produce any such evidence, even nobody from the general public, friends, and close relatives
or from his nears and dears came forward to substantiate his claim of defamation. The question
of mental agony was required to be established through cogent and reliable evidence and mere
feeling of resentment in one's mind is not sufficient to establish mental agony. The pleading and
the evidence are altogether silent on this aspect. It is well settled that if a person claimed mental
torture/agony or damage/injury to his reputation among the general public, the initial burden lies
upon him to lead evidence on this point. The appellants' case could not pass the basic test for
establishing their claim, therefore, the trial court has rightly resolved this issue against the
appellants.
16. On the basis o f cumulative effect of the aforesaid discussion it is concluded that the
appellants have failed to establish their claim for damages for malicious prosecution mental
agony and injury caused to their reputation. Therefore, their suit was rightly dismissed t hrough
impugned judgment dated 28.01.2010 passed by the Senior Civil Judge, Dera Allah Yar, which
being unexceptional does not warrant any interference by this court.
This appeal is therefore, dismissed accordingly with no order as to cost. Decree sheet b e
drawn separately.
ZC/42/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.