2022 LHC 3762
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.
Defamation is defined under Section 03 of the Ordinance, 2002.
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;
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.
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.
It app ears that damages are defined under three headings; 1) compensatory, 2) general & 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 reestablish 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 dam ages 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. Th is 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 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.
Regular First Appeal (R.F.A.)
140-12
MUHAMMAD RIAZ ETC VS DR. MUHAMMAD SHAHBAZ KHAN
Mr. Justice Ahmad Nadeem Arshad
19-05-2022
2022 LHC 3762
.jfif)
