Mst. Rukhsana Bibi etc Vs Mst. Parveen Bibi etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

(Judicial Department)

R.F.A. No.87-A/2021

JUDGMENT

Date of hearing: 04.05.2026

Appellants (Mst. Rukhsana Bibi & another) By Mr. Junaid Anwar Khan, Advocate.

Respondents (Mst. Parveen Bibi & another) Respondents By Nemo.

AURANGZEB, J.- Through this appeal the appellants have assailed the judgment and decree dated 17.06.2021, whereby the learned Additional District Judge-III, Hariur the application filed by the respondents under Order VII Rule 11 CPC was accepted and the plaint of the appellants was rejected.

2.In essence, the appellants (plaintiffs) instituted a civil suit seeking recovery of an amount of Rs.50,000,000/- (fifty million) as general and special damages under the Defamation Ordinance, 2002.

Upon notice, the respondents (defendants) entered appearance before the learned trial Court and contested the claim by filing their written statement.

The respondents also moved an application under Order VII Rule 11 CPC for rejection of the plaint. The learned trial Court, after obtaining a written reply from the appellants and hearing the learned counsel for the parties, vide judgment and decree dated 17.06.2021,

allowed the said application and rejected the plaint.

Hence, the instant appeal.

3.In terms of office notice dated 08.12.2023, the respondents were proceeded against ex parte;

accordingly, the learned counsel for the appellants was heard, and the record was perused with his able assistance.

4.The record reveals that the gravamen of the appellants’ case revolves around allegations of character assassination, premised upon certain statements attributed to the respondents, which are alleged to be defamatory in nature. In particular, respondent No.1, Mst. Parveen Bibi, in her pleadings, asserted that many years earlier, the husband of appellant No.1 and father of appellant No.2, namely Saib Shah, had allegedly committed murder of an unknown person at Rawalpindi after purportedly catching him in an objectionable and compromising position with appellant No.1, Mst.Rukhsana. It was further alleged that the said Saib Shah is presently confined in Attock Jail, while Mst.Rukhsana migrated to Haripur, changed her name to Mst. Saeeda, and has since been leading an immoral and characterless life along with her daughter, Mst.Shaheen. The respondent further alleged that she refused to adopt such alleged immoral lifestyle and, as a consequence, was subjected to maltreatment, harassment, and torture, and was ultimately expelled from the matrimonial home on 12.11.2018.

5.The appellants, in paragraphs No. 4, 5, and 6 of the plaint, reproduced certain excerpts of the alleged defamatory statements; however, it is evident that the reproduction is selective and not in toto. Specifically, in paragraph No. 4 of the plaint, reliance has been placed upon extracts from paragraph No. 6 of a family suit titled “Mst. Parveen vs. Saleem Ahmad,” pending before the learned Family Judge, Gujranwala. A perusal of the said paragraph demonstrates that respondent No.1 not only reiterated the allegations regarding maltreatment and expulsion but also made reference to alleged immoral conduct attributed to the appellants, while expressly stating that she would produce evidence in support thereof at the appropriate stage.

6.Similarly, the appellants have relied upon paragraph No. 2 of the written reply dated 23.07.2019 filed in the said family proceedings. In the said reply, respondent No.1 reiterated her stance and further elaborated upon the alleged immoral conduct of the appellants, including assertions regarding possession of certain photographs, which, according to her, would be produced during trial. It is noteworthy that the substance of allegations contained in both the plaint and written reply remains substantially consistent, albeit with certain additional expressions and embellishments in the latter.

7.Further, in paragraph No. 5 of the plaint, the appellants have extracted portions from the written statement filed by respondent No.2 in civil suit No. 64/1

titled “Saleem Ahmad vs. Muhammad Junaid etc.”

pending before the learned Civil Judge, Haripur. The said written statement also contains allegations of similar tenor, including references to past incidents, alleged immoral conduct, and circumstances surrounding matrimonial discord. Both parties have admitted the pendency of the said suit, which is still sub judice before the competent Court.

8.Likewise, in paragraph No. 6 of the plaint, reliance has been placed upon pleadings from another family suit titled “Mst. Parveen and another vs. Saleem Ahmad and others” pending before the learned Family Court, Gujranwala. The pleadings in the said suit again contain allegations relating to alleged immoral activities, maltreatment, and expulsion from the matrimonial home, along with assertions regarding existence of certain material evidence, including photographs, which the respondent claims would substantiate her stance at trial.

It is also an admitted position that the said proceedings are pending adjudication.

9.It is, therefore, an undisputed position on record that all the statements which are alleged by the appellants to be defamatory have been made in the course of judicial proceedings and form part of pleadings in suits that are presently sub judice before competent courts of law at Gujranwala and Haripur. Moreover, the appellants had previously availed the remedy of filing an application under Section 151 CPC for striking out the

impugned averments in one of the family suits; however, the said application was dismissed by the learned Family Court, Gujranwala, vide order dated 24.02.2020, and the appeal thereagainst also met the same fate before the learned Additional District Judge.

10.The pivotal question requiring determination in the instant appeal is whether the allegations leveled by the respondents in Civil Suit No. 64/1 titled “Saleem Ahmad vs. Muhammad Junaid etc.” as well as in the family suit instituted by Mst. Parveen Bibi constitute statements made in the course of judicial proceedings and, consequently, whether such statements are protected under the doctrine of privileged communication envisaged by the Defamation Ordinance, 2002, thereby excluding the maintainability of an independent action for defamation.

11.For proper adjudication of the controversy, it is necessary to advert to the scheme and object of the Defamation Ordinance, 2002, particularly Sections 3, 6 and 7 thereof, which regulate the law relating to defamation and the protection accorded to statements made during judicial and other protected proceedings.

Section 3 of the Defamation Ordinance, 2002 defines defamation in the following terms:

“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.”

12.A plain reading of the aforesaid provision manifests that every statement alleged to be injurious to reputation does not ipso facto furnish a cause of action for defamation. The legislature, while employing the expression “actionable as defamation,” has consciously subjected the right of action to the limitations and exceptions recognized under the Ordinance itself. Thus, a statement, though prima facie defamatory in nature, would not be actionable if the same is protected by privilege recognized by law.

13.The law of defamation has consistently recognized that certain occasions necessitate complete freedom of expression in the larger interest of administration of justice and public policy. Judicial proceedings occupy a distinct and sacrosanct position in this regard. Courts of law adjudicate disputes on the basis of pleadings, assertions, allegations and evidence brought before them by the contesting parties. A litigant approaching a court is under legal obligation to fully disclose his case, assert his claims, controvert the stance of the adversary and place all relevant facts before the court. Such freedom of disclosure would become wholly illusory if every statement made in judicial proceedings were permitted to become the subject matter of an independent suit for defamation.

14.It is precisely for this reason that Section 6 of the Defamation Ordinance, 2002 grants protection to matters connected with judicial proceedings. The said provision reads as under:

“Any publication of statement made in the Federal or Provincial legislatures, reports, papers, notes and proceedings ordered to be published by either House of Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government, shall have the protection of absolute privilege.”

15.The aforesaid provision unequivocally demonstrates that the legislature has conferred absolute privilege upon statements and matters intrinsically connected with judicial proceedings. The object underlying such protection is to preserve the independence, sanctity and effective functioning of the judicial process. Courts must remain free forums where parties may ventilate their grievances and assert their legal rights without fear of retaliatory litigation.

16.The doctrine of absolute privilege is founded upon considerations of public policy. The immunity attached thereto is complete in nature and is not dependent upon the truth or otherwise of the statement complained of. The rationale is that participants in judicial proceedings, including litigants, counsel and witnesses, must be permitted to speak freely and candidly in aid of administration of justice. Were such

protection not available, parties would remain under perpetual apprehension of subsequent litigation, which would inevitably impede the free and fair administration of justice.

17.Similarly, Section 7 of the Ordinance extends protection to fair and accurate reports of judicial proceedings and other related communications. The provision stipulates as follows:

“Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privilege.”

18.The distinction between Sections 6 and 7 is of considerable legal significance. While Section 6 embodies the principle of absolute privilege, Section 7 incorporates the doctrine of qualified privilege.

Statements protected by qualified privilege enjoy immunity so long as they are made bona fide, in good faith and on occasions where the maker thereof possesses a legal, moral or social duty to communicate the same. The protection, however, continues only so long as the statement bears nexus with the lawful object sought to be achieved and is not actuated by malice.

19.The cumulative reading of Sections 3, 6 and 7 unmistakably reflects the legislative intent that statements made during the course of judicial proceedings are ordinarily insulated from independent

proceedings for defamation. The rationale behind such protection is deeply rooted in public policy and judicial necessity. If every averment contained in pleadings were allowed to become the foundation of separate defamation litigation, no litigant would be able to prosecute or defend his case fearlessly before a court of law. Such an approach would not only open floodgates of collateral litigation but would also seriously obstruct and undermine the administration of justice.

20.In the present case, the allegations complained of admittedly formed part of pleadings and assertions made by the respondents in Civil Suit No. 64/1 titled “Saleem Ahmad vs. Muhammad Junaid etc.” as well as in the family suit instituted by Mst. Parveen Bibi before courts of competent jurisdiction. The said allegations were made within the framework of pending judicial proceedings in support of the respective claims and defenses of the parties. There is nothing available on record to suggest that the alleged imputations were independently circulated, published or disseminated outside the judicial forum for public consumption. The statements, therefore, remained confined to proceedings pending before competent courts of law.

21.It is a settled principle of law that pleadings filed before a court, statements made during trial, assertions contained in affidavits and allegations relevant to adjudication of disputes constitute integral components of judicial proceedings and ordinarily attract the

protection of privilege recognized by law. Even where such allegations may appear harsh or injurious to reputation, no independent action for defamation would ordinarily be maintainable so long as the statements bear reasonable nexus with the subject matter of litigation and are made in pursuit of legal remedies before a competent forum.

22.Viewed from the aforesaid legal and factual perspective, the allegations made by the respondents in the civil and family litigation between the parties clearly fall within the ambit of privileged statements made during judicial proceedings. Consequently, the same are protected under Sections 6 and 7 of the Defamation Ordinance, 2002 and, therefore, do not furnish an independent cause of action for defamation against the respondents. In this regard reliance is placed on the judgment of this court rendered in case titled Mst. Dr.

Yousaf Fida and another versus Justice (Retd.)

Muhammad Azam Khan (PLD 2016 Peshawar 105), wherein it was held that:-

“9.The second proposition invoked in the present case is that whether the allegations and cross allegation in civil suits or in any judicial proceedings are qualified privileged statements and hence, no action lies against such statements. Sections 6 & 7 of the Ordinance define such statements which are reproduced for ready reference.

Section 6. "Absolute privilege. Any publication of statement made in the Federal of provincial legislatures, reports papers, notes and proceedings ordered to be published by either House of the

Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government, shall have the protection of absolute privilege".

Section 7. "Qualified privilege. Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privilege".

10.Bare perusal of above sections confirmed that the statements or any judicial proceedings are qualified privileged statements and hence, no action lies in such like cases. In this respect we lend wisdom from cases reported in 2007 CLC page 1174, 2006 YLR page 1623, PLD 1954 Sindh page 70 and AIR 1939,,Calcutta page 477.

11.The proceedings on the basis of which the plaintiff has based his claim were pending adjudication before a Competent Court of law, so the suit at the time of its inception was premature and no action can be claimed on the basis of a subjudice case. Further more the suit of the plaintiff, in reply whereof the impugned written statement was presented, has been dismissed by the trial court which too confirm the stance of the present appellant, further more the present claim / suit of the plaintiff rests upon civil proceedings, in our view no damages can be claimed on the basis of civil litigation even though based on mala fide intention as the section 35-A CPC provides dismissal of suit with special compensatory cost, if found to be mala fide and fraudulent. The present suit is misconceived against the law and facts, so deserves dismissal.”

Reliance is also placed on the judgment of this court delivered in case titled Rashid Khan versus

Bashir (2013 MLD 1026 Peshawar), wherein it was held that:-

“6.A perusal of record would show that Rashid Khan appellant had filed a suit for restitution of conjugal rights against his wife Mst. Robina and in the plaint has had also arrayed respondent No.1 as defendant No.4 in the plaint and during reconciliation proceedings marriage of the spouses was dissolved on the basis of khulla. The respondent has filed a suit for damages under Defamation Ordinance, 2002 on the ground that appellant in order to defame the respondent had unnecessary impleaded him as party in the suit and levelled allegations against him to the effect that he is involved in trafficking of women and as such lowered his status. Although the appellant finding strong nexus arrayed respondent as defendant No.4 in his plaint by disclosing his character in the episode, which statement does not amount to defamation. Different sections of Defamation Ordinance, 2002 being relevant are reproduced as under:-- "3. Defamation.---(1) Any wrongful act or publication or circulation of a false statement of representation made orally or in written or visual from 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 from or expression or by electronic or other modern means of

devices that amounts to defamation shall be actionable as libel.

Section 4. Defamation actionable.---The 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.

Section 12 of Defamation Ordinance reads as under:--

12.Limitation if action.---An action against:

(a)an author, editor, proprietor, or publisher of a newspaper;

(b)the owner of a broadcasting station;

(c)an officer, servant or employee of the newspaper or broadcasting station or (d)any other purpose.

for defamation contained in the newspaper or broadcast from the station or its publication otherwise shall be taken within six months after the publication of the defamatory matter came to the notice or knowledge of the person defamed."

The plain reading of above referred sections and the whole of the Ordinance LVI of 2002 would reflect the impression that the scheme and theme of the Ordinance, 2002 is regarding the defamatory acts through electronic or print media whereas no such thing is involved in the instant case.

7.In the circumstances, it appears that such action of arraying of respondent as defendant No.4 in the plaint and disclosure about his character does not amount to defamation actionable as slander and there is no proof of special or general damages allegedly caused to the appellant. In this respect, reliance is placed on "Anwar ul Haq Anjum v. Mian Anjum Yousaf reported in 2006 YLR 1623, wherein it has been held that any statement or assertion which is made

before any Court, cannot give rise to any action for libel for slander.”

Similarly, the Sindh High Court in case titled Dr.

Mukhtar Ahmad versus Mst. Shamim Hashmi (2007 CLC 941), wherein it was held that:- “3. In any event, if it is assumed that the application has been made in August, 2002, the question would be whether making such an application could amount to defamation in terms of the requirement of law. The explicit allegations of the respondent against the appellant, who is her former husband, contained in this application are, "whenever I come to Nazimabad my ex-husband swears at me and threatens me on the road. He has done the same thing today and I as well as my family members apprehend grave danger to our lives. This application is furnished for information with request to kindly take appropriate action".

4.Prima facie, the application is made to a person and authority for protection of the respondent's own interest and it is highly doubtful whether the same could amount to defamation.

5.Indeed, the appellant had stated in evidence before the trial Court that the allegations complained were false and could not be proved but beyond that nothing was said. Section 3 of the Defamation Ordinance makes a false statement causing injury to the reputation of a person or to bring him in ridicule, unjust criticism and dislike. In this context, however, a distinction needs to be drawn between the statement, which is not proved and one which is explicitly found to be false for the purpose of this Ordinance. Under the criminal law all benefits of doubt is to be granted to an accused and the prosecution must establish its case beyond a reasonable doubt. In a suit for damages, however, a very strong burden of proving a statement to be false is to be discharged by the plaintiff and the mere fact that it could not be proved does not necessarily show that

it was false. If this distinction is obliterated, perhaps every accused granted the maximum benefit of doubt may upon acquittal bring an action for defamation, which does not appear to be the intention of law.”

23.The object of Order VII Rule 11 CPC is to arrest frivolous or legally barred litigation at the threshold, so as to prevent unnecessary consumption of judicial time and to protect parties from vexatious proceedings. The use of the word “shall” in the provision makes it obligatory upon the Court to reject the plaint where any of the conditions enumerated therein are satisfied. Furthermore, where admitted documents or material accompanying the plaint demonstrate that the suit is barred by law, the Court is competent to take such material into consideration. In this regard reliance is placed on the judgment of apex court rendered in case titled Noor Din and another versus Additional District Judge, Lahore and others (2014 SCMR 513), wherein it was held that:- “The object of the powers conferred upon the trial Court under Order VII, Rule 11, C.P.C. is that the Courts must put an end to the litigation at the very initial stage when on account of some legal impediments full-fledged trial will be a futile exercise.”

24.In the instant case, a holistic reading of the plaint, along with the documents annexed therewith, leads to the inescapable conclusion that the suit instituted by the appellants is not maintainable.

Consequently, the suit is barred by law within the meaning of Order VII Rule 11 CPC. The findings

recorded by the learned trial Court are, therefore, well- reasoned and legally sound, and no illegality or material irregularity has been pointed out which may warrant interference in appellate jurisdiction.

25.For the foregoing reasons, the instant appeal, being devoid of merit, is hereby dismissed.

Announced.

JUDGE

Aftab PS/* (S.B) Hon’ble Mr. Justice Aurangzeb