Said Badshah Vs Muhammad Nauman Khan Kundi

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

RFA No.135-D/2018 with C.M.No.99-D/2018.

Said Badshah Versus Muhammad Nauman Khan Kundi

JUDGMENT

For appellant: Mr. Zia-ur-Rehman Kazi, Advocate.

For respondent: Mr. Muhammad Abdullah Baloch, Advocate.

Date of hearing: 27.4.2026.

SADIQ ALI, J.- Through the instant Regular First Appeal, filed under Section 96 of the Code of Civil Procedure, 1908, the appellant has assailed the legality and validity of the judgment and decree, dated 29.10.2018, passed by the learned Additional District Judge-II, D.I.Khan, whereby the suit instituted by the respondent under the Defamation Ordinance, 2002, for recovery of damages to the tune of Rs.200 million on account of defamation, was decreed in favour of the respondent.

2.The respondent/plaintiff, Muhammad Nauman Khan Kundi, instituted a suit for recovery of damages under the Defamation Ordinance, 2002 on 12.05.2012 before the learned District Judge,

D.I.Khan, which was subsequently entrusted to the learned Additional District Judge-II, D.I.Khan for trial and disposal. The plaintiff claimed an amount of Rs.200 million on account of alleged defamation arising out of publication of certain news items in local newspapers dated 14th and 15th November, 2011, purportedly based on a press conference attributed to the present appellant/defendant.

3.The case of the plaintiff, as set forth in the plaint, was that he is a serving officer in the Armed Forces of Pakistan and belongs to a respectable family of the area. It was averred that his father, Abdul Hakeem Khan, had successfully litigated pre-emption suits against Faizullah and others before the competent civil courts, which were decreed in his favour and upheld up to the apex level, resulting in delivery of possession and attestation of mutations. Subsequently, proceedings for division of produce were initiated before the District Collector, Tank under the relevant tenancy laws, which too culminated in favour of the plaintiff’s father and were affirmed by the appellate and revisional forums, including the Board of Revenue. In pursuance thereof, the wheat produce was recovered and handed over to the landowner with official assistance. According to

the plaintiff, the defendant, being aggrieved of the said outcomes, allegedly convened a press conference in District Tank, wherein false, baseless and defamatory allegations were levelled against the plaintiff and his family, accusing them of land grabbing and misuse of influence with law enforcement agencies. These allegations were subsequently published in various local newspapers, “Rehbar Times”, “Turfa”, “Payam-e- Noor” and “Darpan”, causing serious harm to the reputation, dignity and professional standing of the plaintiff. It was further pleaded that the said publications not only lowered the esteem of the plaintiff in the eyes of the public and his professional colleagues but also subjected him and his family members to mental agony,

embarrassment and social humiliation, and even triggered an official inquiry in his professional capacity. The plaintiff further asserted that prior to institution of the suit, a legal notice under Section 8 of the Defamation Ordinance, 2002 was duly served upon the defendant, calling upon him to respond and remedy the grievance; however, the defendant failed to furnish any reply, thereby constraining the plaintiff to initiate legal proceedings for recovery of damages under various

heads, including compensatory damages, special damages and markup.

4.Upon issuance of summons, the appellant/ defendant appeared before the trial Court and contested the suit by filing written statement, wherein he denied the allegations in toto, raising various legal as well as factual objections, including absence of cause of action, non- maintainability of the suit, limitation, non-joinder of necessary parties and denial of holding any such press conference or making defamatory statements.

It was further contended that the suit was motivated and filed with mala fide intent due to previous litigations between the parties.

5.On the basis of divergent pleadings of the parties, the learned trial Court framed as many as thirteen issues covering all material propositions of fact and law. In order to substantiate his claim, the plaintiff produced thirteen witnesses, including officials from courts, postal department, police department, revenue authorities and editors of the newspapers concerned. Conversely, the defendant examined himself as DW-1. After completion of evidence and hearing of arguments, the learned trial Court, vide judgment and decree, dated

29.10.2018, decreed the suit in favour of the respondent/plaintiff as prayed for with costs throughout.

6.Feeling aggrieved of the said judgment and decree, the appellant/defendant has filed the instant Regular First Appeal, challenging the findings of the learned trial Court on the grounds of misreading and non-reading of evidence, violation of statutory provisions of the Defamation Ordinance, 2002, and failure to properly appreciate the legal requirements for establishing a claim of defamation.

7.I have heard the learned counsel for the parties at length and have gone through the record with their able assistance.

8.From the arguments advanced by the learned counsel for the parties and perusal of the record, the following points arise for determination in these appeals:

i. Whether the respondent/plaintiff succeeded in proving the essential ingredients of defamation within the meaning of the Defamation Ordinance, 2002?

ii. Whether the alleged defamatory publication was proved in accordance with law and whether the same could legally be attributed to the appellants/defendants?

iii. Whether the learned trial Court properly appreciated the evidence on record while returning findings in favour of the plaintiff?

iv. Whether the quantum of damages awarded by the learned trial Court is sustainable in law and based upon proper judicial assessment?

v. Whether the Defamation Ordinance, 2002 remained operative after the Eighteenth Amendment to the Constitution?

9.A close scrutiny of the statement of the plaintiff (PW-13) and his cross-examination exposes material weaknesses which go to the root of the case. The plaintiff, while asserting that the alleged defamatory statements were made in a press conference, candidly admitted in cross- examination that he was not present at the time of the alleged press conference at Press Club Tank.

This admission, by itself, renders his testimony on the occurrence of the press conference and the alleged utterances purely hearsay, having no direct evidentiary value. Moreover, the plaintiff failed to produce any primary evidence to substantiate the alleged defamatory act. No original statement, transcript, recording or independent eyewitness of the press conference was produced. Even the document relied upon by the plaintiff to establish his official status (Ex.PW13/1) was objected to during cross-examination for lacking formal authenticity, and no effort was made to remove such objections through proper proof. The cross- examination further reveals that the plaintiff had no

personal knowledge of several material aspects, including subsequent legal proceedings relating to the pre-emption litigation, thereby reflecting lack of command over foundational facts of the dispute.

Importantly, the plaintiff admitted that no medical record, prescription or independent evidence was produced to substantiate the alleged mental agony, stress or reputational harm. He also conceded that no person who allegedly contacted him or reacted to the publication was produced as a witness, thus leaving the claim of reputational damage wholly uncorroborated. It is also significant that the plaintiff admitted that owners/editors of the newspapers were not impleaded as parties, despite the entire case being built upon newspaper publications. This omission assumes importance in circumstances where attribution of the alleged statements itself remained unproved.

10.The evidence of newspaper witnesses (PW- 7, PW-8 and PW-9) further weakens the case of the plaintiff. All these witnesses, in unequivocal terms, admitted during cross-examination that they had neither personally attended nor covered the alleged press conference. Their testimony clearly establishes that the news items were published merely on the basis of information supplied by

Bureau Chiefs. They also admitted that original copies of the newspapers were not available on record and that they were not in a position to confirm whether the press conference actually took place or not. Such evidence is clearly hearsay and does not satisfy the standard required for proving publication of defamatory material attributable to the appellants. In addition, the plaintiff admitted that no evidence was produced to show actual delivery of possession through civil court process, and that the matter involved multiple litigations between the parties, thereby lending some plausibility to the defence stance regarding existence of prior disputes and possible motive.

When the above admissions are read cumulatively, it becomes evident that the case of the plaintiff is built on assumptions, secondary material and unverified publications, without any legally admissible, direct or corroborative evidence. The learned trial Court, however, failed to take into account these glaring deficiencies and proceeded to record findings in favour of the plaintiff, which amounts to misreading and non-reading of evidence.

11.Adverting to the first three points, it is an admitted position that the entire case of the

respondent/plaintiff hinges upon the alleged press conference and its publication in certain newspapers. However, a careful scrutiny of the record reveals that no original statement, transcript, audio/video recording, or primary evidence of the alleged press conference was ever produced before the learned trial Court. The case of the plaintiff is solely based upon copies of newspaper clippings, which were exhibited through witnesses associated with the respective newspapers. It is by now well settled that newspaper reports, by themselves, constitute hearsay evidence unless corroborated by independent and direct evidence establishing the authorship, authenticity and attribution of the statement to the alleged maker. In the instant case, the plaintiff failed to produce any cogent material to prove that the appellants had actually uttered the alleged defamatory statements or that the contents of the news items were published with their consent, authority or participation. Mere production of newspaper copies, without proof of source and attribution, does not satisfy the legal requirement for establishing defamation.

Furthermore, no independent witness of the alleged press conference was produced, nor any person present at the said conference was examined to

substantiate the version of the plaintiff. Even otherwise, the editors of the newspapers merely proved publication but could not establish the correctness of contents or the involvement of the appellants. In absence of primary evidence, the foundational requirement of defamation i.e.

publication of a false statement attributable to the defendant, remains unproved. Thus, the learned trial Court fell into patent error in treating uncorroborated newspaper clippings as conclusive proof of defamatory statements and in drawing presumptions against the appellants without there being any legally admissible evidence on record.

12.Coming to the aspect of damages, it is observed that the learned trial Court, in a rather mechanical manner and without applying proper judicial mind, proceeded to decree the suit as prayed for, awarding an enormous amount of Rs.200 million without undertaking any objective assessment of evidence. The law requires that damages, particularly in defamation cases, must be determined on the basis of proved injury, nature of imputation, extent of publication, status of parties, and actual impact on reputation. Guidance in this regard is sought from the principles enunciated in the case of Nazeer Ahmed and another v. Karachi

Port Trust and others (2019 YLR 1985 [Sindh]), wherein it was held that:

“A person claiming special damages has to prove each item of loss with reference to the evidence brought on record and for general damages relating to mental torture, anguish, distress and defamation and same had to be assessed following the rule of thumb.”

Similarly, the landmark judgment of the Hon’ble Supreme Court in Abdul Majeed Khan v. Tawseen Abdul Haleem and others (PLD 2012 Supreme Court 80), the apex Court distinguished between 'General' and 'Special' damages, clarifying that while General Damages (for pain, suffering, and mental agony) are governed by the "Rule of Thumb," Special Damages (out-of-pocket expenses and specific financial loss) must be specifically pleaded and proved with exactitude. The Hon'ble Supreme Court observed:

"General damages are those which the law implies in the very violation of legal rights... Such damages need not be proved by strict evidence as they arise by inference of law... However, adequate care should be taken... the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony."

In the instant case, the respondent/plaintiff failed to meet this evidentiary threshold. No tangible evidence was produced to establish actual loss,

professional damage, or quantifiable harm. Even the alleged mental agony and reputational injury were not supported by any independent or convincing evidence that would allow the Court to apply even the "rule of thumb" for general damages. The learned trial Court failed to apply these settled principles and instead granted the entire claimed amount without assigning any sound reasons or conducting any analytical evaluation, which essentially amounted to an act of "lavish generosity" expressly discouraged by the Superior Courts, therefore, such an approach is not sustainable in law.

13.In the case reported as 2013 MLD 1449 (Peshawar) titled “Mir Liaqat Khan versus Sarfaraz Jehan”, it has been held by this Court that a document which is inadmissible in evidence cannot be relied upon by the Court even if the same has been exhibited without objection, and such document is to be excluded from consideration. The Hon’ble Court further observed that in cases of alleged defamation based on press reports, mere publication in newspapers is not sufficient unless the same is proved through cogent and unimpeachable evidence. It was also held that failure to implead the editors or publishers of

newspapers, who are necessary parties, is fatal to the case of the plaintiff. The Court further laid down that damages cannot be awarded by way of penalty or punishment and must be strictly proved through reliable evidence showing actual loss, and where the plaintiff fails to establish malice or actual damage, the suit is liable to be dismissed.

14.Likewise, in the case reported as 2024 MLD 541 (Balochistan) titled “Tola Ram versus Nargis Baloch", it has been held that where the witnesses produced by the plaintiff are not eye-witnesses of the alleged press conference, their statements amount to hearsay and are not admissible in evidence. The Hon’ble Court further observed that for claiming damages, the plaintiff is under a legal obligation to prove the quantum of damages through trustworthy and convincing evidence, and mere assertions in the plaint are not sufficient. It was also held that failure to produce original newspaper publications, failure to examine persons who attended the press conference, and failure to establish actual loss or business damage are fatal to the claim. The Court concluded that damages cannot be granted in absence of strict proof, and mere allegation of reputational harm without

substantiation does not entitle the plaintiff to any relief.

15.Learned counsel for the appellant placed reliance upon Article 270-AA(8) of the Constitution of Islamic Republic of Pakistan, 1973, contending that upon omission of the Concurrent Legislative List through the Eighteenth Amendment, the subject of defamation stood devolved to the Provinces and, therefore, the Defamation Ordinance, 2002, being a Federal law, ceased to be operative, particularly in the Province of Khyber Pakhtunkhwa where no adaptation has been made. For proper appreciation, Article 270- AA(8) provides:

“On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said List to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.”

However, the above contention cannot be examined in isolation. Article 270-AA(6), which directly governs the fate of laws enacted on subjects falling within the erstwhile Concurrent Legislative List, reads as under:

“Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders,

rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority.”

A plain and harmonious reading of the above provisions leaves no room for doubt that although the subject of “actionable wrongs”, including defamation, stood devolved to the Provinces, the laws already in force on the said subject were expressly protected and preserved by the Constitution itself. The effect of Article 270-AA(6) is that such laws continue to operate with full force unless and until they are specifically altered, repealed or amended by the competent Provincial legislature. The Defamation Ordinance, 2002, being a law in force prior to the Eighteenth Amendment and relating to a subject previously contained in the Concurrent Legislative List, squarely falls within the protective ambit of Article 270-AA(6). Therefore, its enforceability does not come to an end merely on account of devolution under Article 270-AA(8).

16.It is pertinent to observe that prior to the Constitution (Eighteenth Amendment) Act, 2010,

the Constitution of Islamic Republic of Pakistan, 1973 contained a Concurrent Legislative List in the Fourth Schedule, comprising Entries No.1 to 47, wherein both the Federation and the Provinces were competent to legislate. Amongst these entries, Entry No.12 related to “actionable wrongs”, which included civil liabilities such as defamation.

However, through the Constitution (Eighteenth Amendment) Act, 2010, the entire Concurrent Legislative List, i.e. Entries No.1 to 47 (both inclusive), was omitted from the Constitution.

Consequently, the subjects previously enumerated therein, including Entry No.12 (actionable wrongs), stood devolved to the Provinces, thereby vesting exclusive legislative competence in the Provincial Assemblies. The effect of such omission is that, post-Eighteenth Amendment, the Federation no longer retains legislative competence over those subjects unless otherwise specifically provided, and the Provinces are now competent to legislate upon them. However, this constitutional transition does not operate retrospectively so as to invalidate or extinguish the laws already in force on such subjects. In this regard, Article 270-AA(6) of the Constitution provides constitutional protection to all laws relating to matters

enumerated in the erstwhile Concurrent Legislative List, ensuring that such laws “shall continue to remain in force until altered, repealed or amended by the competent authority.” Thus, although Entry No.12 (actionable wrongs) stood omitted as part of the Concurrent Legislative List, the laws framed thereunder, including the Defamation Ordinance, 2002, continued to remain operative after the Eighteenth Amendment. Therefore, the omission of the Concurrent Legislative List signifies a shift in legislative competence from the Federation to the Provinces, but not the automatic repeal or cessation of existing laws enacted on those subjects. Such laws persist in the field unless and until they are specifically modified or replaced by the competent Provincial legislature.

17.Learned counsel further argued that while the Province of Punjab has adapted the Defamation Ordinance, 2002 through the Defamation (Amendment) Act, 2012, no such adaptation has been made by the Province of Khyber Pakhtunkhwa, therefore, according to him, the said law is not operative within this Province. This argument is misconceived. Mere non-adaptation does not render an existing law inoperative. In absence of any express repeal or substitution by the

competent legislature of Khyber Pakhtunkhwa, the Defamation Ordinance, 2002 continues to remain in force within this jurisdiction. Adaptation by one Province does not affect the enforceability of the law in another. Further, Article 254 of the Constitution provides:

“When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”

Although the said provision primarily relates to procedural timelines, it reinforces the broader constitutional principle that mere lapse of time or procedural transition does not invalidate an existing legal framework. Thus, even from this perspective, the continuity of the Defamation Ordinance, 2002 cannot be doubted.

18.In this regard, guidance is sought from the landmark judgment of the Lahore High Court in PLD 2016 Lahore 433 titled "Salim Javed Baig v.

Federal Ombudsman". In the said case, the Hon’ble Court, while interpreting Article 270- AA(6) and the effect of the omission of the Concurrent Legislative List, held:

"Under Art.270-AA(6) of the Constitution, an applicable federal law

remained in force as a Provincial Act; irrespective of the omission of the Concurrent Legislative List... until such time that the said federal law was altered, repealed or amended by the competent authority (legislature) and such alteration or amendment in the law by the competent legislature did not affect its continuity and said law continued to be in force, albeit, as a provincial law... due to the Constitutional declaration under the Eighteenth Constitutional Amendment."

The Hon'ble Lahore High Court further observed that:

"If the federal law under Art.270-AA(6) can only be subjected to alteration, amendment and repeal by the provincial legislature, it means that the Federal law has lost its federal character and stands transformed into a Provincial law."

19.In view of the above, the contention of learned counsel for the appellant that the Defamation Ordinance, 2002 ceased to be applicable after the Eighteenth Amendment is devoid of substance and is, therefore, repelled.

20.Notwithstanding the above, the decisive question remains whether the plaintiff proved his case. As discussed earlier, the entire claim is based upon uncorroborated newspaper reports, which are insufficient to establish defamation. Moreover, the learned trial Court, in a mechanical fashion and without proper judicial application of mind,

proceeded to decree the suit for an exorbitant amount without assessing the quantum of damages on settled legal principles. No evidence of actual loss, professional damage or measurable injury was produced. The award of damages, therefore, is arbitrary and unsustainable.

21.In view of the foregoing discussion, this Court is of the considered opinion that the respondent/plaintiff failed to prove defamation through legally admissible evidence. Newspaper clippings alone are insufficient to establish liability. The learned trial Court misread evidence and relied on inadmissible material. The damages awarded are arbitrary and without lawful basis.

Consequently, this appeal is allowed, the impugned judgment and decree, dated 29.10.2018, passed by the learned Additional District Judge-II, D.I.Khan are set aside, and the suits filed by the respondent/plaintiff is dismissed.

Announced.

Dt:27.4.2026. -Sd/- Imran/* JUDGE

(S.B)

Hon’ble Mr. Justice Sadiq Ali