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Petitioner: Senator SULTAN ALI LAKHANI VS Respondent: Mir SHAKIL UR RAHMAN and 4 others
Court Name: Sindh High Court Judge(s): G. H. Malik Title: Senator SULTAN ALI LAKHANI vs Mir SHAKIL UR RAHMAN and 4 others Case No.: Suits Nos.578 and 579 of 1992 Date of Judgment:1996-10-16 Reported As: PLD 1997 Karachi 41 Result: Application dismissed
Judgment ORDER ' This order will dispose of C.M.A. 5497 of 1992 in Suit No, 578 of 1992 and. C.M.A. 5498 of 1992 in Suit No, 579 of 1992. ' The plaintiff, Senator Sultan Ali Lakhani, has filed these suits for damages and for permanent injunction in consequence of the articles, entitled "Honey Pot Sting Operation does not 'Wine, Women, Song and Blackmail", which are alleged to be defamatory of the plaintiff, published in the issues dated the 24th August, 1992, of the newspapers The News and Jang respectively. The defendants in the suits are the respective editors-in-chief, editors, printers, publishers and the reporters of the two newspapers. ' The plaintiff has not been named in the articles but it is an admitted position that he is the person referred to therein. The articles are identical and the allegations therein are: (i) that Munawar Ali alias Munnoo and Shafqat Hussain alias Shan ran guest houses for the plaintiff at House No,70/1, 6th Street, Phase V, Defence Housing Authority, House No,44, 14th Street, Phase V, DHA, a house situated off 17th Commercial Lane and a house on Sunset Boulevard, off Korangi Road where "most of the bureaucrats, and politicians were offered wine, women and fun" and where "many top politicians, including at least one federal minister and some high level bureaucrats and police officials" were secretly filmed, by a crew hired by the plaintiff, while "they boozed and made love with some of the most sought after call girls of the country"; (ii) that the plaintiff used the aforesaid Munawwar Ali and Shafquat Hussain "for what looked like a massive blackmailing operation"; (iii) that the plaintiff treated "very very important persons" including "at least one federal minister, the leading spiritual-cum-political leader, who is also indentified as the mentor of the industrialist,
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two key senators, many MNAs and top officials from the District Management Group, Customs and Police" on board his super luxury yacht featuring a fully loaded bar, three air-conditioned rooms and one super-luxury master bedroom; and that those persons were secretly filmed "as they enjoyed the night of frolic in the super luxury master bedroom"; (iv) that the plaintiff "virtually" bought his seat in the Senate; (v) that the plaintiff "imported a Land Cruiser for himself and another to gift a fellow Senator from Karachi under the garb of ambulances for an unknown foundation"; (vi) that Hakim Ali Zardari escaped prosecution in 1990 because he had chosen the plaintiff as a partner; (vii) that the plaintiff prevented "a probe against such fishy concerns as Mill Rock, Oregon Industries and Allied Granite"; (viii)that half a dozen times in the last six years cases of evasion of excise duty were registered against the tobacco concerns of the plaintiff. ' According to the plaintiff, these allegations are scandalous, false, malicious and defamatory. He has, therefore, sought, in the suits, a permanent injunction to restrain the defendants from printing/publishing /distributing any articles/material, including the articles complained of, adverse to or defamatory of him and/or the companies with which he is associated; and damages amounting to Rs,500 million. ' By the present applications, the plaintiff seeks a temporary injunction to restrain the defendants from "printing/publishing/distributing any articles/material adverse to the plaintiff including (the articles complained of) or...Defamatory of the plaintiff and/or the companies, . ,in which the plaintiff and his family have substantial shareholding and with which he is associated or which is adverse, defamatory or injurious to his business interest therein, .Or which is injurious to his fair name, reputation and violative of his dignity as a respectable citizen". ' The stand of the defendants, in their written statements, is that the article was written and published "in public interest and for public good without any malicious (intent) or ulterior motive"; that the defendant No,5 interviewed a large number of persons who "unveiled the truth" to him, and conducted "thorough investigation before writing the article". It amounts, in substance, to pleas of justification, qualified privilege and, apparently, fair comment. ' Mr. Khalid Anwar submitted that the articles complained of are ex facie libellous; that the defendants, while pleading justification, privilege and fair comment. Have not disclosed the sources of their information; and that their failure to disclose sources amounts to refusal to answer a question, which is not permissible in view of Article 15 of the Qanun-e-Shahadat or under Common Law. According to him, the law in England was the same prior to its amendment by section 10 of the Contempt of Courts Act, 1981. In this connection, he cited: -- (i) Attorney-General v Clough (1963) 1 QB 773 (ii) British Steel Corporation v Granada Television Ltd (1981) AC 1096 (iii) X Ltd and another 1. Morgan Grampian (Publishers) Ltd and others (1990) 1 All ER 616. He submitted, further, that, in the circumstances of the case, the defendants are liable to be restrained by a temporary injunction as prayed; and relied on: (i) Illustration (e) to section 55 of the Specific Relief Act. (ii) Hari Shankar v. Kailash Narayan AIR 1982 M.P. 47 (iii) Nelson's Law of Injunction, 3rd Edition, p.870. ' Mr. Aziz A Munshi referred to illustration (i) to section 54 of the Specific Relief Act and to Rao on Law of Injunctions, 6th Edition, pages 143, 144, 182 and 183 in support of the plaintiff's case. ' Mr. Muhammad Ali Mazhar, for the defendants, submitted, firstly, that the defendants have disclosed sources of their information; and, secondly, that injunction sought by the plaintiff cannot be granted because (a) it would amount to prior restraint on publication which would be in
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violation of the freedom of speech and of the press which has been guaranteed by the Constitution, (b) damages would be adequate relief in the event of the plaintiff succeeding in the suit, and (c) the defendants have not threatened to publish anything defamatory of the plaintiff. He relied on: (i) American Law Report, 2nd edn., volume 47, para 5, page 726. (ii) American Law Report, 2nd edn., volume 175, para 26, p. 499; and pages 718, 724 and 726. (iii) Brij Bhushan and another v. The State of Delhi AIR 1950 SC 129 (iv) Express Newspapers Ltd. v. Union of India AIR 1958 SC 578 (v) Unichem Corporation (Pvt.) Ltd. And others v. Abdullah Ismail and others 1992 M LD 2374. (vi) Fraser v. Evans and others (1969) 1 All ER 8 (10). (vii) Corpus Juris Secundum, Vol. 43, para. 134, p.679. ' In reply, Mr. Khalid Anwar submitted that the American cases are not applicable because whereas in the American Constitution there is a total and unqualified prohibition against making of any law "abridging the freedom of speech or of the press", the rights of freedom of speech and of the press under our Constitution are guaranteed "subject to reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, Commission of or incitement to an offence." According to him, the provisions of Specific Relief Act and section 499 of the Penal Code are such reasonable restrictions as are contemplated by Article 19 of the Constitution. He then referred, to Nelson's Law of Injunctions, 3rd Edn., paras. 51 to 53 and the case of Subhas Chandra Bose v. R. Knight and Sons and another AIR 1929 Cal. 69. As for the case of Fraser v. Evans, it was submitted that it was distinguishable. ' In the course of arguments, Mr. Khalid Anwar produced a copy of Jang dated the 18th December, 1994, wherein it was reported that Miss Babra Sharif, a well-known film actress, had married the plaintiff. The report admittedly, was not correct; and, according to Mr. Munshi, was' indicative of the defendants' "bent of mind". Mr. Munshi, therefore, submitted that it was necessary to restrain the defendants as prayed and that, but for this report, restraint on further publication of the impugned articles would have been sufficient. He also referred to Order 39, C.P.C. Which provides for issuance of an injunction to prevent injury. ' Mr. Mazhar submitted that the news of the marriage of Miss Babra Sharif to the plaintiff was circulated by PPI and was published in several newspapers including Jang and that contradiction was published in the issue of Jang dated the 19th December, 1994. He produced copies of various newspapers in which the same story was published and a copy of Jang in which the contradiction was published. ' It will be convenient, before considering the other arguments advanced by the learned counsel, to deal with the contention relating to the alleged failure of the defendants to disclose sources of their information and the consequences of such failure. The submission of Mr. Khalid Anwar was that a newspaper or a journalist has no special privilege and is not entitled to refuse to disclose its or his source of information. He relied on Article 15 of the Qanun-e-Shahadat which, in relevant parts, provides-- "A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any Civil or Criminal Proceedings, upon the ground that the answer to such question will criminate or may tend directly or indirectly to criminate, such witness or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind." Article 15 relates only to a witness and applies, it seems, to examination of witness in Court or on commission. Such witness cannot refuse to answer a question as to any matter which is relevant to any matter in issue in the suit. That Article is, therefore, not germane to the present proceedings
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because there was no witness being examined in Court; and, even if the filing of an affidavit could be treated as equivalent to giving evidence, there was no question put to any of the defendants. The question of refusal to answer, therefore, does not arise. In any event, refusal to answer, a question, by a witness, cannot necessarily lead to the conclusion that the case of party questioning him is thereby proved; and the only consequence of refusing to answer a question would be that the witness would be guilty of Contempt of Court ' The English Law on the subject, before the enactment of the Contempt of Courts Act, 1981, was that journalists had no immunity based on public interest which protected them from disclosing in a Court of Law their sources of information when such disclosure was necessary in the interests of justice but that there might be elements of public interest in protecting the revelation of the source for there was a public interest in the free flow of information, which would vary from case to case. Thus, in the case of Attorney-General v. Clough, a journalist was held guilty of Contempt of Court for refusal to answer a question put to him by a tribunal, which would have revealed the source of his information; and in the case of British Steel Corporation, the defendant was ordered, on balance of public interest, to disclose the names of those who had supplied to them the documents of the plaintiff. Now, by section 10 of the Contempt of Court Act, 1981, no person can be required to disclose his source of information, nor would he be guilty of Contempt of Court for refusing to disclose the source unless it is shown to the satisfaction of the Court that it is necessary in the interests of justice or national security or for the prevention of disorder or crime. Following that Act, it has been held in the case of X Ltd. v. Morgan-Grampian (Publishers) Ltd. That where interest of administration of justice generally outweighed the general public interest in protecting journalistic sources, the Court would make an order requiring disclosure, and that, on the facts of that case, there was no particular public interest in publishing the information derived from the documents of the plaintiff which had been stolen. ' None of the above cases have any bearing on the present controversy and it was not even suggested in the argument that the alleged failure of the defendants to disclose their sources of information was proof of anything. No other argument having been advanced on the subject, it is not necessary to dwell on it any longer. ' The next argument on behalf of the plaintiff was based on illustration (e) to Section 55 and illustration (i) to sections 54 of the Specific Relief Act, 1877, and on Order 39, rule 2(1), C.P.C. Section 54 and 55 of that Act are concerned with grant of perpetual injunction and provide, inter alia, that, subject to the other provisions contained in or referred to by Chapter X of the Act, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant and that where, to prevent breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts. Illustration (i) to section 54 and illustration (e) to section 55, respectively, are as follows:-- "(i) A is B's medical adviser. He demands money of B which B declines to pay. A then threatens to make known the effects of B's communications to him as a patient. This is contrary to A's duty, and B may sue for an injunction to restrain him from so doing. Ii) A threatens to publish statements concerning B which would be punishable under Chapter XXI of the Pakistan Penal Code. The Court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B s property." ' Illustration (e) is in fact concerned with grant of an injunction to restrain the doing of an act whereas section 55 of the Act provides for grant of permanent mandatory injunction. It is, therefore, not clear why that illustration has been placed under section 55 instead of under section 54 though it has been suggested by a writer that illustrations (e) and (f) have been annexed to section 55 probably because of the use made of them in illustration (g) to section 55.
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' Be that as it may, the above sections and the illustrations govern the cases of permanent injunctions which may be granted at the trial when the entirety of evidence and material is before the Court, whereas, as provided by section 53 of the Specific Relief Act, the grant of a temporary injunction is regulated by Code of Civil Procedure. The Code provides by Order 39, rule 2(1), inter alia, that in any suit for restraining the defendant from committing an injury of any kind, the Court may grant an injunction to restrain the defendant from committing the injury complained of. Thus, the Court has the power and the jurisdiction to grant a perpetual injunction to prevent breach of an obligation and a temporary injunction to prevent an injury. Since every person has a right to his reputation there is a corresponding obligation on others not to do anything which is calculated to harm that reputation and thereby cause injury to such a person. There can, therefore, be no doubt that the Court has the power and the jurisdiction, in an appropriate case, to restrain publication of defamatory material. ' However, the occasion for exercise of the power may arise only if it appears on the material before the Court that the defendant has threatened, or is likely, to commit an act likely to cause an injury. Mere apprehension on the part of a plaintiff is not sufficient. In the present case, the plaintiff, in his affidavit, has reiterated the allegation in the plaint, and has alleged in para. 3 thereof: "That I have suffered severe mental anguish as a result of the activities of the defendants and have also been severely adversely affected in my business, political and social activities. Although legal notices were served upon the Defendants calling upon them to publish an apology retracting the allegations levelled against me, no such action has been taken by the defendants. I, therefore, very seriously apprehend a continuation of the campaign of vilification that has been launched against me." ' The allegation, thus, is that the refusal on the part of the defendants to retract the allegations and to tender an apology has caused a serious apprehension in the mind of the plaintiff that the defendants will continue "the campaign of vilification" against him. In the reply to the legal notice, the defendants stated that the impugned article was published in good faith, for public good without any malicious intention or ulterior motive and that it was "true in facts and substance". The refusal, on their part to apologize or to retract was, therefore based on their stand in the reply. Surely, if the defendants' case is that the allegations were true they cannot be expected to tender an apology; and failure to tender an apology, in the circumstances, cannot reasonably be construed as evidence of any intention on their part to either repeat the publication of the articles complained of or to publish any other defamatory material. In any case, the alleged apprehension in the mind of the plaintiff is not with regard to publication of any specific material but it is that the defendants will continue their campaign of vilification. The implication is that there was, when the impugned articles were published, already in existence a campaign which would be continued. "Campaign", according to Chambers' Twentieth Century Dictionary, means, inter alia, "an organised series of operations in the advocacy of some cause or object". There is, however, no allegation that the defendants had published anything before or since the impugned articles and before the plaintiff signed the affidavit. The allegation of existence of campaign is, thus, unfounded and the question of its continuance does not arise. It is true that during the pendency of the suit, a report was published in Jang that Miss Babra Sharif had married the plaintiff. Assuming, for the sake of argument, that such a report was, in all the relevant circumstances, defamatory, it is not evidence of any intention on the part of the defendants to defame or to vilify the plaintiff because that report was circulated by P.P.I and was published in various newspapers; and, subsequently, a contradiction was also published. If anything, the publication of the report may, at worst, be evidence of negligence but certainly not of any intention to lauch or continue any campaign. The applications are, therefore, liable to be dismissed on the short ground that there is nothing on the record to show, even prima facie, that the defendants have threatened, or are likely, to repeat
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the publication of impugned articles or to publish anything else which may be defamatory of the plaintiff. However, in view of the general importance of the matter I would consider the remaining arguments advanced by the learned counsel. ' While the Courts undoubtedly have the power and the jurisdiction to grant interlocutory injunction to restrain publication of a libel, the exercise of that power is discretionary and the discretion is exercised in accordance with certain rules which have been evolved by the Courts. ' The first requirement is, of course, that the plaintiff must establish a prima facie case. Mr. Khalid Anwar submitted that the impugned articles are ex facie libellous; but libel, by definition, is publication of something which is not true and whether or not a statement or an article is libellous depends, inter alia, upon whether or not it is true. The defendants in the case have pleaded justification, privilege and fair comment. It is, therefore, necessary to see whether, on the material before me, the plaintiff has made out a sufficiently strong prima facie case for the grant of interlocutory injunction. The kind of case which a plaintiff has to make out has been subject-matter of several decisions in England. ' In the case of Liverpool Household Stores Association v. Smith (1887) 37 Ch. App.170--it was held that the Court had jurisdiction to restrain, by interlocutory injunction, the publication of a trade libel but as, if it grants an injunction, it must pronounce the publication libellous before it has been found so by the jury, the jurisdiction was to be exercised in the clearest cases where any jury would say that the matter complained of was libellous, and where, if they found otherwise, their verdict would be set aside as unreasonable. Cotton, L.J. Referred to Coulson v. Coulson (3 Times L.R. 846) where it was said that in granting an interlocutory injunction Court must come to decision on question of libel or no libel and therefore the jurisdiction was of a delicate nature and ought only to be exercised in clearest of cases; and observed that was a case of an existing document brought before the Court, and that-- ...In the case of an existing document brought before the Court, the Court can judge of its character, but how can the Court judge whether documents which are not yet in existence will be libelous? In my opinion it would be very dangerous to grant an interlocutory injunction with reference to future publications unless we could lay down definitely some line which would include only the publication of what would necessarily be libellous." ' Lopes, L.J. Agreed with Cotton, L.J and went on to say, at page 184, -- " it does not appear to me to be perfectly clear, taking all the circumstances into consideration, that the jury will come to conclusion that the letters which have been published were libels, as to justify the Court in granting interlocutory injunction against republishing them; and as regards future letters of the description mentioned in the notice of motion, it clearly is not so apparent that a jury would find them libels as to justify the Court in interfering in the way asked." ' The rule laid down in Coulson v. Coulson was again affirmed in the case of Bonnard v. Perryman-- (1891) 2 Ch. 269- where it was held that the libellous character of the publication complained of was beyond dispute "but the effect of it upon the defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded." It was, therefore, observed that it is wiser, in all but exceptional cases, "to obtain from interference until the trial and determination of the plea of justification". ' More recently, in the case of Fraser v. Evans and others (1969) 1 All ER 8 the plaintiff sought an interlocutory injunction to prevent the defendants from publishing an article. The defendants accepted that the article would be defamatory of the plaintiff but said that if they were sued for libel, their defence would be that the 'facts are true and the comments which they make on them would be fair comment made honestly on matter of public interest. It was held by the Court of
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Appeal that the plaintiff was not entitled to injunction. Lord Denning, M.R. (as he then was) said, at page 10:-- "One of the principal difficulties in dealing with this case is that we do not know what the article when published will contain. We do not know what the extracts will be. We do not know what facts will be stated or what comments will be made. Despite this ignorance, we have to deal with case as best we can" ' and went on to hold:-- "In so far as the article will be defamatory of the plaintiff, it is clear he cannot get an injunction. The Court will not restrain the publication of an article, even though it is defamatory, when the defendant says that he intends to justify it or to make fair comment on a matter of public interest. This has been established for may years even since Bonnard v. Perryman. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is a Constitutional Tribunal, and not for a Judge; but a better reason is the importance in the public interest that the truth should out. As the Court said in that case: "The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done." ' There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The Court will not…
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