The essential ingredients to constitute defamation and to be proved by the plaintiff are that:

(i) the allegations leveled against the plaintiff should be false, baseless, and unfounded;
(ii) the wording used and the allegations leveled, on the face of it, should have been defamatory and derogatory in nature;
(iii) such allegations should have been published in widely circulated newspapers or spoken in large gatherings;
(iv) the said publication made or wordings used should have been with malice without any reasonable excuse and justification; and
(v) the allegations should have been directly attributed to the plaintiff specifically mentioning his name.

It is well-known that a person who is maliciously prosecuted on a criminal charge can sue in tort for damages if the prosecution ends in his acquittal and the prosecution was malicious in the sense that it was without any reasonable cause.

To ground a claim, for malicious prosecution a plaintiff must prove:

(1) that the law set in motion against him on a criminal charge;
(2) that the prosecution was determined in his favor;
(3) that it was without reasonable and proper cause; and
(4) that it was malicious.’

Out of the above four ingredients, two are such which should exist for maintaining a suit for damages i.e.:

(1) that the law set in motion against him on a criminal charge and
(2) that the prosecution was ended in his favor; because later two will be opened to be proved by respective parties as per their respective claims i.e.
(3) prosecution was either reasonable and under proper cause or otherwise and
(4) prosecution was malicious or otherwise

In absence of co-existence of the above two conditions, a suit for damages under the law of Torts shall not be competent because such remedy cannot be allowed to frustrate a legal right i.e. to set the law into motion either by way of a complaint, application or FIR, etc. which otherwise (setting law into motion) is meant to inquire into / investigate or trial an allegation/ charge.

Mere filing/ moving a complaint or application shall not give a right for filing a suit for damages but shall earn a right of hearing or participation. It must always be kept in view that the terms ‘damages’ and ‘defamation’ are not synonyms to each other but in law, both have independent meanings and characters.

Also, only filing of a complaint shall not earn a right for filing a suit for “damages” because it shortfalls the term “prosecution” and even an application/complaint does not always result in commencement and carrying out of any action or trial. So the addition of the word “false or frivolous” alone would not help anyone to maintain a suit for damages because the filing of a suit for damages in law of torts has not been confined for a “false or frivolous” prosecution but success in such suit is dependent upon establishing rest two conditions i.e. “proving prosecution to be causeless and malicious” and “not establishing it to be ‘false or frivolous”.

Thus, a causeless prosecution may not be necessarily “false or frivolous”. Even otherwise, it is not the domain of the plaintiff to declare an application or complaint as “false” but it is the competent forum alone who will declare, hence mere addition of the word ‘false or frivolous” is of no help for prejudicing or escaping the legally established ingredients for maintaining and succeeding in a lis for damages under the law of Torts. However, it needs not be mentioned that every single “malicious prosecution” shall earn an independent right for bringing an independent suit for damages.

Question of mental agony, torture, or trauma is required to be established through cogent and reliable evidence so mere feeling of resentment in one’s mind is not sufficient to establish mental agony. For a person claiming mental torture or injury, the initial burden would lie upon such person to lead evidence on same.

Damages are provided as a remedy under Section 9 of the Defamation Ordinance, 2002 under three headings:

(1) compensatory
(2) general and
(3) aggravated.

Compensatory damages themselves can be divided into general and special. A 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 re-establish his reputation.

Special Damages: Special damages are defined as the actual but not necessarily the result of the injury complained of. While awarding special damages, the courts are required to keep in mind that the person claiming special damages has to prove each item of loss with reference to the evidence brought on record. This may also include out-of-pocket expenses and loss of
earnings incurred down to the date of trial and are generally capable of substantially exact calculation.

General Damages: General damages normally pertain to mental torture and agony sustained through derogatory/ defamatory statements. As there is no yardstick to measure such damages in monetary terms, therefore, while assessing damages on account of such inconvenience, the Courts must apply a rule of thumb by exercising its inherent jurisdiction for granting general damages on a case-to-case basis. General damages are based on the matters of vindication, injury to reputation, and injury to feelings.

The plaintiff should be able to point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. Nature of damages claimed by the plaintiff falls within the ambit of general damages and special damages and the same is required to be established through cogent and reliable evidence. A mere feeling of resentment in one’s own mind is not sufficient to establish general and special damages. A person claiming special damages had 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 the same had to be assessed following the rule of thumb.

Scope of Evidence: Pleadings of the parties are the benchmark of their respective claims on which issues are drawn and evidence is led which is restricted to the issues struck between the parties alone and not beyond them. If any evidence beyond the purview of issues does come on record, no party can on such evidence set up altogether a new case and press the same for getting relief merely on the basis of an out of context evidence. The importance of the pleadings and their legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed;
though the pleadings by themselves are not the evidence of the case, the parties to the litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas.

A party is bound by the averments made in its pleadings and is also precluded from leading evidence except precisely in terms thereof. A party cannot travel beyond the scope of its pleadings. It may be pertinent to mention here, that even if some evidence has been led by a party, which is beyond the scope of its pleadings, the Court shall exclude and ignore such evidence from consideration.

In defamation proceedings, a person has a defense if he shows that:

● He was not the author, editor, publisher, or printer of a defamatory statement.
● The statement is fair and in the public interest and
● The statement is an expression of opinion as well as published in good faith.
● The statement is based on truth and is made for the public good.
● The matter complained of was privileged communication such as between lawyer and client.
● The matter is covered by absolute or qualified privilege.

In a suit for defamation, the defamatory words published are presumed under the law to be false and the only burden on the plaintiff is to prove that the defamatory words have been published by the defendants, and then it is for the defendants to prove that the words so published are true.

In order to constitute defamation in a suit under Defamation Ordinance, 2002; allegations levelled against a person/plaintiff should be false, baseless and unfounded; the wording used and allegation levelled against a plaintiff should on the face of it be defamatory and derogatory in nature and such allegations must have been published in widely circulated newspapers or spoken in a large gathering and said publications made or wording used should have been with malice without any reasonable excuse and justification and such allegations should have been directly attributed to the plaintiff by specifically mentioning his/her name.

In cases of defamation, falsehood is to be presumed on part of the defendant unless proved that the published/broadcasted materials are true and a plaintiff can only be burdened to prove malice in case the defendant succeeded in proving that defamatory words are true and privileged otherwise the court shall presume that defamatory materials published or broadcast are false and male fide exist on part of the defendant.

Article 19 of the Constitution guaranteed freedom of speech but it also imposed certain restrictions and limitations and did not provide a licence to any person to make personal attempts on an individual to disgrace his/her dignity and reputation.

Print and electronic media are in no way vested with unfettered liberty and impunity to public and telecast any material which is prejudicial to the interest of any person or harmed or caused damage to a reputation, honour, prestige of a person.

Author or broadcasting agency is not free to telecast anything for the promotion of a company or corporation or on the instruction of some quarter or according to its desires but their freedom is subject to a moral code of conduct and such reasonable restrictions as may be legitimately imposed under a law in public interest and glory of Islam.

When an untrue statement or scene is broadcast and added to an evil act of a person, the law of defamation would plunge into the rescue of such a person.

In our opinion, no lenient treatment shall be shown to anyone in this regard nor anyone can plead the unbridled right of expression and right to have access to the information when the subject matter is disgraced, his/her dignity brought to almost naught because the rights with regard to expression and access to information are regulated by law, rules, and regulations under which the license is granted under the Press and Publication laws.

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, report 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”.

Apart from the restrictions imposed by law on the publication of such defamatory material, we being Muslims are under legal obligations to adhere to the Commands of Allah Almighty and ‘Sunnah’ of our Holy Prophet Hazrat Muhammad (Peace be upon Him).

For the purpose of reference, importance on society, the religion of Islam is lying down principles to avoid backbiting and slander. Such slander has a deadly impact on our society which shall not go unpunished in this world under the established laws of the land and also hereafter (on the Day of Judgment).

Following are the relevant ‘Aayats’ and ‘Hadith’ on the subject, which are reproduced as below:

Allah states in the Quran:
“O you who have believed! Avoid much [negative] assumptions. Indeed, some assumption is sin. And do not spy or backbite each other. Would one of you like to eat the flesh of his brother when dead? You would detest it. And fear Allah; indeed, Allah is Accepting of repentance and Merciful.” [Quran 49:12]
The Quran Says:
“When you received it with your tongues and said with your mouths that of which you had no knowledge and thought it was insignificant while it was, in the sight of Allah, tremendous.” [Quran 24:15]
Allah Says:
“And why, when you heard it, did you not say: ‘It is not for us to speak of this. Exalted are You, [O Allah]; this is a great slander?’” [Quran 24:16] Hudhayfah (R.A) reported that the Prophet, peace and blessings be upon him, said, “The slanderer will not enter Paradise.”

Source: Sahih al-Bukhari 5709, Sahih Muslim 105 Asma’ bint Yazid reported that the Messenger of Allah, peace, and blessings be upon him, said, “Whoever defends the flesh of his brother from backbiting, it will be a duty upon Allah to free him from the Hellfire.” Source: Musnad Ahmad 26950 Abu Darda reported that the Prophet, peace and blessings be upon him, said, “Whoever defends the reputation of his brother, Allah will defend his face from the Hellfire on the Day of Resurrection.”

Source: Sunan al-Tirmidhī 1931 Grade: Sahih (authentic) according to Al-Albani Abdullah ibn Amr reported: They mentioned a man in front of the Messenger of Allah, peace, and blessings be upon him, and they said, “He only eats if he is fed! He only moves if he is made to move!” The Prophet said, “You have backbitten him.” They said, “We only said what is true about him.” The Prophet said, “It is enough sin to mention bad things about your brother.” In another narration, the Prophet said, “If what you said about him were not true, you would have slandered him.”

Source: Musnad ‘Abd Allāh ibn al-Mubārak. Grade: Hasan (fair) according to Al-Mundhiri Prophet Muhammad (may Allah exalt his mention) once asked: “Do you know what backbiting is?” His companions, may Allah be pleased with them, replied: “Allah and His Messenger know best.”

He then said:
“It is to say something about your brother that he would dislike.” Someone asked: “But what if what is said is true?” The Messenger of Allah replied: “If what you say about him is true, then you have backbitten him, but if it is not true then you have slandered him.” [Muslim] Sa’id ibn Zayd reported that the Prophet, peace and blessings be upon him, said, “Verily, the worst act of usury is to attack the reputation of a Muslim without a just cause.”

Source: Sunan Abī Dāwūd 4876 Grade: Sahih (authentic) according to Al-Albani l-Bara’ ibn ‘Azib reported: The Messenger of Allah, peace, and blessings be upon him, said, “Usury has seventy-two doors, the least of which is like a man who goes into his mother. The worst act of usury is for a man to attack the reputation of his brother.”

Source: al-Mu’jam al-Awsa 7151 Grade: Sahih li ghayrihi (authentic due to external evidence) according to Al-Albani Sa’id ibn Zayd reported: The Prophet, peace and blessings be upon him, said, “Among the worst kinds of usury is to disparage the honor of a Muslim without right. Verily, this womb is derived from the Most Merciful. Whoever severs its family ties, Allah will forbid
him from entering Paradise.” Source: Musnad Ahmad 1586 Grade: Sahih (authentic) according to Al-Albani Abu Huraira reported: The Messenger of Allah, peace, and blessings be upon him, said, “Five sins cannot be expiated: idolatry with Allah, killing a soul without a just case, slandering a believer, fleeing the battlefield, and bearing false witness to consume the wealth of another without right.”

Source: Musnadal-Shamiyyin 1161 Grade: Hasan li ghayrihi (fair due to external evidence) according to Al-Albani Abdullah reported that the Prophet, may Allah bless him and grant him peace, said, “A believer is not a defamer nor a cursor nor coarse nor obscene.” Grade: Sahih (Al-Albani) Abu Qilabah reported: The Messenger of Allah, peace, and blessings be upon him, said,
“It is an evil mount for a man to rely upon what others merely assert.”

Source: Sunan Abī Dāwūd 4972 Grade: Sahih (authentic) according to Al-Albani Al-Sakhawi said, “Indeed, it is said ‘they imagine’ in their speech, without attribution or verification, something they only said as an assertion. The Prophet disapproved of this way of speaking, and he commanded honesty and verification in what one relates.”

Source: al-Maqasidal-Hasanah 1/244 Al-Rabia’ reported: Ibn Sirin, may Allah have mercy on him, said, “It is an act of wrong against your brother that you mention what you know is evil about him, while you are silent upon his good.”

Source: Sifatal-Safwah 2/145 Abu Sa’id al-Khadimi reported: A man said to Hasan al-Basri, may Allah have mercy on him, “Indeed, someone has backbitten you!” Hasan sent a dish of sweet dates to the backbiter and he said, “I heard that you have given me your good deeds as a gift, so I want to repay you for it, but please excuse me for I am unable to completely repay you.”

Source: Tanbīhal-Ghāfilīn 1/164 Hudhayfah reported: The Prophet, peace, and blessings be upon him, said, “The slanderer will not enter Paradise.”

Source: Sahih Al-Bukhari 5709, Sahih Muslim 105 Grade: Muttafaqun Alayhi (authenticity agreed upon) according to Al-Bukhari and Muslim Ibn Umar reported: The Prophet, peace and blessings be upon him, said, “Whoever argues in favor of falsehood and he knows it, Allah will continue to be displeased with him until he stops. Whoever says something about a believer that is not true, Allah will lodge him in a sinkhole until he recants what he has said.”

Source: Sunan Abī Dāwūd 3597 Grade: Sahih (authentic) according to Al-Albani Anas ibn Malik reported: The Prophet, peace, and blessings be upon him, said, “Do you know what calumny is?” They said, “Allah and his messenger know best.” The Prophet said, “It is spreading news between people to ruin their relationships.”

Source: al-Adab al-Mufrad 425 Grade: Sahih (authentic) according to Al-Albani Anas ibn Malik reported: The Messenger of Allah, peace, and blessings be upon him, said, “When I was taken on my night journey, I passed by people who had metal hooks in their hands and they were clawing at their faces and necks. I said: Who are these, O Gabriel? Gabriel said: These are
the ones who ‘eat the flesh of people’ (49:12) and attack their honor.”

Source: Sunan Abī Dāwūd 4878 Grade: Sahih (authentic) according to Al-Albani Prophet Muhammad (PBUH) said: “If a man’s Muslim brother is slandered in his presence, and he is capable of defending him and does so, Allah will defend him in this world and in the next. But if he fails to defend him, Allah will destroy him in this world and the next.” [Al-Baghawi]”

It is settled law that in cases where the defendants are declared ex parte, though the Courts are empowered to pass ex parte decree, such discretionary power must be exercised judicially. In cases where the defendants are declared ex parte, Courts are not supposed to only pass ex parte decree in favor of the plaintiff by assessing his claim in toto, but are saddled with the duty to examine the worth/credence of each piece/item of plaintiff’s claim before accepting or rejecting it.

Limitation:
In light of section 12 of the Defamation Ordinance, 2002, filing of the suit within a period of six months after publication of defamatory matter came to the notice or knowledge of a person who is defamed, is clear and obvious.

Question of limitation is not always a mixed question of fact and law rather it varies according to the circumstances averred in the plaint. If a bare reading of plaint does not give rise to any factual probe and no disputed question of facts regarding a precise date of acquisition of knowledge exist nor is there any explanation for its filing with delay forthcoming on the record then there is no need to frame the issue and record evidence and it is liable to be construed as a pure question of law. Disputed facts in respect of date of knowledge may call for a recording of evidence as a mixed question of fact and law.

Remedies:
Section 9 of the Defamation Ordinance provides the following remedy: “Where defamation shall be proved to have occurred, the Court may pass order directing the defendant to tender an apology, if acceptable to the plaintiff, and publish the same in a similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs. 50, 000/- (Rupees fifty thousand) [and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court. Provided that in the case of the originator the minimum compensatory damages as general damages shall be three hundred thousand rupees.”