DEFAMATION
whoever by words either spoken or intended to be read ,or by sign or by visible representations , makes or publishes any imputation concerning any person intending to harm , or knowing or having reason to believe that such imputation will harm the reputation of such person
MIAN ASHRAF AMI
ADVOCATE HIGH COURT
499. Defamation .---- whoever by words either spoken or intended to be read ,or by sign or by visible
representations , makes or publishes any imputation concerning any person
intending to harm , or knowing or having
reason to believe that such imputation will harm the reputation of such person
, is said except in the cases hereinafter
excepted , to defame that person .
Proviso
1(………….)
Explanation
1. It may amount to defamation to impute anything to a deceased
Person if
the imputation would harm the reputation of that person if living , and is
intended to be hurtful to the feeling of his family or other near relatives..
Explanation
2. It may amount to defamation to make an imputation concerning a company or a
association or collection of persons as such .
Explanation 3. An imputation in the form of an alternative or
expressed ironically , may amount to defamation .
1.
(provided
that the exception in this section other than
the fourth exception shall not apply in cases in which the imputation is
published in a ,book, news-sheet or newspaper as defined in the west Pakistan
press and publication Ordinance , 1963 (ordinance no . xxx of 1963)ins .by
ordinance LXVIII OF . 1979 omitted by
Act IV OF 1986 (PLD 1988 CENT . ST 16 ).
2.
Explanation
4 . no imputation is said to harm a
person reputation , unless that imputation directly or indirectly in this
estimation of other , lowers the moral of intellectual character of that person
or lowers the character of that person in respect of this caste or of his
calling or the credit of that person , or causes it to be believed that the
body of that person is in a loathsome state or in a state generally considered a as disgraceful.
Illustration
(a)
A
says , Z is an honest man , he never stile watch intending to cause it to be believed that Z did steal b watch . this is defamation unless
it falls within one of the exception .
(b)
A
is asked who stole b watch . A points to
z intending to cause it to be
believed that z stole b watch . this is defamation , unless it falls
within one of the exception .
(c)
A draws a picture of z running away with b
watch . intending it to be believed that z stole b watch . this is defamation ,
unless it falls within one of the exception .
First Exception ….imputation of truth which public good
requires to be made or publish … it is not defamation to impute
anything which is ture concerning any person , if it be for the public good
that the imputation should be made or publish . whether or not it is for the
public good is a question of fact.
Second Exception … Public conduct of public Servants … it
is not defamation to express in good faith any opinion whatever respecting the
conduct of any person of a public servant in the discharge of his public
function , or respecting his character , so far as his character appears in
that conduct , and no further .
Third Exception …Conduct of any person touching any public question … it is not
defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public
question , and respecting his character , so far as his character appears in
that conduct , and no further .
Illustration
It is not defamation in A to express
in good faith any opinion whatever respecting
zs conduct in petitioning government on a public question . in signing a
requisition for a meeting on public question . in presiding or attending as
such meeting ,in forming or joining any
society which invites the public support , in voting or canvassing for a
particular candidate for any situation in the efficient discharge of the duties
of which the public is interested .
Fourth Exception … Publication of reports of proceedings of
Court….it is not defamation to publish
a substantially true report of the proceeding of a Court of justice , or
of the result of any such proceeding .
Explanation .A justice of the peace
or other officer holding an enquiry in open Court preliminary to trial in a
Court of justice , is a Court within the meaning of the above section .
Fifth Exception … Merits of case decided in Court or conduct
of witness and other concerned…..it is not defamation to express in good
faith any opinion whatever respecting the merits of any case , civil or criminal , which has been decided by a
Court of justice , or respecting the conduct of any person as a party , witness
or agent ,In any such case , or respecting the character of such person as far
as his character appears in that conduct , and no further .
Illustrations
(a)
A says .i think Z evidence on that trial is so contradictory that he must
be stupid or dishonest . A is within exception if he says that in good faith ,
inasmuch as the opinion which he expresses respects Z character as it appears
in Z conduct as a witness and no further.
(b)
But if A says , do not believe what z asserted at that trial because I
know him to be a man without veracity A is not with in this exception ,
inasmuch as the opinion which expresses of Z character in an opinion not
founded on Z conduct as a witness.
Sixth Exception …. Merits of public performance.----- it
is not defamation to express in good
faith any opinion respecting the merits of any performance which its author has
submitted to the judgment of the public , or respecting the character of the
author so far as his character appears in such performance , and no further .
Explanation .
A performance may be submitted to the judgment of the public expressly or by acts on the part of
the author which
imply such submission to the judgment of the
public .
illustrations
(a)
A
person who publishes a book , submits that book , to the judgment of the public
.
(b)
A
person who makes a speech in public , submits that speech to the judgment of the public.
(c)
An
actor or singer who appears on a public stage , submits his acting or singing to
the judgment of the public.
(d)
A
says of a book published by z—z book is
foolish .z must be a week man . z book is indecent , z must be a man of impure
mind . A is with in this exception , if
he says this in good faith inasmuch as the opinion which he expresses of z respects z character only so far as it
appears in z book , and no further .
(e)
But
if a says , I am not surprised that z
book is foolish indecent for he is a weak man and a libertine . A is not with in this exception inasmuch as the
opinion which he expresses of z character is an opinion not founded on book .
Seventh Exception ---- Censure passed
in good faith by person having lawful authority over another .---it
is not defamation in a person having over another any authority either conferred
by law or arising out of a lawful contract made with that other , to pass in
good faith any censure on the conduct of
that other in matters to which such lawful authority relater .
Illustration
A judge censuring in good faith the
conduct of a witness , or of an officer of the Court .a head of a department
censuring in good faith those who are under this order ,a parent censuring in
good faith a child in the presence of other children , a schoolmaster , whose
authority is derived from a parent , censuring in good faith a pupil in
presence of other pupils , a master censuring a servant in good faith for
remission in service , a banker censuring in good faith , the cashier of his
bank for the conduct of such cashier as such cashier – are within this
exception .
Eight Exception – Accusation preferred in good faith to authorized person
--- it is not
defamation to prefer in good faith an
accusation against any person to any of those who have lawful authority
over that person with respect to the subject – matter of accusation .
Illustration
If A in good
faith accuses z before a Magistrate , If A in good faith complains of the
conduct of z a servant to z master , if a in good faith complains of the
conduct of z a child , to z father ,A is within this exception .
Ninth
Exception ---- imputation made in good
faith to person for
protection of his or other interest --- it is not defamation to make an
imputation on the character of another provided that the imputation be made in
good faith for the protection of the interest of the person making it , or of
any other person or for the public good .
Illustration
(a)
A
, a Shopkeeper, says to B who manages his business – sell nothing to z unless
he pays you ready money , for I have no opinion of his honesty , A is within
the exception , if he has made this imputation on z in good faith for the
protection of his own interests .
(b)
A
a magistrate in making a report of his own superior officer , casts an
imputation on the character of z Here ,if the imputation is made in good faith
, for the public good .A is within the exception
Tenth Exception – Caution intended
for good of person to whom conveyed or for public good ---- it is not
defamation to convey a caution in good faith , to one person against another ,
provided that such caution be intended for the good of the person to whom it is
conveyed , or of some person in whom that person is interested , or for the
public good .
Defamation . Necessary ingredients making of
imputation or defamatory statement ,communication to a third party or
publication . and intention harm r knowing or having reason to believe that such imputation will harm the reputation
of such person .2000 p c r l j 1847
1.
Act of agent .Making of imputation or defamatory
statemet , communication to a third party or publication , and intention to harm
or knowing or having reason to believe that such imputation will harm the
reputation of such person . 2000 p c r lj 1847.
2.
Onus to prove .Direct nexus between the author or
originator of the imputation and its publication or communication is required to be
established by independent evidence . 2000 pc r lj 1847.
3.
Power of high Court . High Court has unabridged and
unqualified powers to interfere in any appropriate case where it is found that any particular proceeding would
tantamount to abuse of process of law and that of the Court . 2000 PCR, LJ
1847.
4.
Defences available . (1) Truth of statement made in
public interest (2)Honest opinion about public conduct of public conduct of
public functionaries (3)Statement being an opinion about conduct of a person
(4)Neutral and fair / accurate reporting of Court proceeding (5)Honest
expression of opinion about merits of
the decided case (6)Fair comments about merits of public performance (7)Bona
fide censure passed by a person in authority (8)Accusation made by a person in
good faith to a person in authority (9)Accusation made to safe guard the
personal interest of the individual orfor the public good of a person or to
public (10)putting a person or public on caution against another for public
good .2000 pcr .lj 1847.
5.
Mense
rea . for constituting
offence of defamation meanse rea or intention is essential ingredient .
Allegation made in complaint are of general nature . No specific instance has
been quoted nor any witness was examined by complainant to substantiate his
version . complainant failed to examine any of relatives who discontinued
contacts with him . criticsm is essential for healthy society . newspapers act
within its legitimate sphere when it offers criticism of what they considers
and bonafide believes tobe good for community . freedom of speech under Article
19 of constitution and freedom of press under 4th Amendment Act of 1975 has widened its scope . Right of
people to speak out through free press is hallmark of democratic society .
Media is supposed to take lead reflecting if anything wrong is taking place .
Application for quashing of proceeding allowed . OLJ 2001 CRC ( KARACHI ) 6714 = PLD 2001
KAR .115.
500. PUNISHMENT FOR DEFAMATION ----Whoever defames another shall be punished with simple
imprisonment for a term which may extend
to two years or with fine ,or with both .
(provided that the originator of the
defamatory imputation shall be
punished with imprisonment of either description for a term which may
extend to five years , or with the which shall not be less than one hundred
thousand rupees or with both .
Explanation
---- Originator means the initiator of a defamatory imputation )
Proviso
(……….)
1.
Scope and extent . How to be taken . 1987 pcr lj1439
. Mens rea or intention is essential ingredient .PLD 2001 kar 115. Assertion of
words ishiq –e-Hawiwi with married woman . Disrepute . pld 1991esc 71 Ground
reflecting on character of spouses in proceedings for dissolution of marriage
,pld 1982 lah 60. Statement of the complainant and his witnesses not recorded
by magistrate himself but by his clerk.illegality incurable . 1994 pcr .l 430 ,
1993 mld 2045. Police may investigate into an offence under Section 500, ppc on
the direction of magistrate and not on
police report under section 173, cr pc 1997 pcr lj 1128 offence under 500
,p.p.c. on date of its alleged commission by respondent inclusive of date on
which complaint was filed was not only cognizable but was also non – compoundable
. plj1998 crc (quetta)
77.section 500/506/34 ppc . billable plj 1999 crc lah 472 .MD is competent to
lodge complaint on behalf of company .
pld 1967 sc 32 .
2. Act of agent . Agent
and principal might be equally liable under civil tort of defamation but in
criminal law it has to be proved by independent evidence . Mere presumption not
enough . 2000 pcr lj 1847 .
501.Printing or engraving matter know
to be defamatory .----
Whoever prints or engraves any matter , knowing or having good reason to believe
that such matter is defamatory of any person shall be punished with simple
imprisonment for a term which may extend to two years , or with fine , or with
both .
502.sale of printed or engraved
substance containing defamatory matter .--.whoever sells or offers for sale any printed or
engraved substance containing defamatory matter knowing that it contains such
matter , shall be punished with simple
imprisonment for a term which may extend to two years , or with fine or with
both .
( 502-A. Trial of offences under
this chapter .--- Notwithstanding anything contained in
the code of criminal procedure , 1898 (Act V of 1898)the Court of Session shall
have the jurisdiction to try an offence under this chapter and decide it within
a period of ninety days .)
(502-B.Publicising identity of a
woman in case of Zina or rape.----
Whoever
publicizes any case of zina or rape whereby the identity of any woman or her
family member is disclosed shall be punished with imprisonment which may extend
to six months or with fine or with both .
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