KARACHI, Sept 10: Malice must be proved as a fact in a suit for defamation independently of any inference arising from the allegedly libelous character of a publication, Justice Muhammad Moosa K. Laghari of the Sindh High Court observed on Wednesday while dismissing a case against this newspaper.

A suit was instituted by M/s Chapal Builders against the editor, printer and publisher of Dawn for carrying two news agency reports on Aug 16 and 19, 2000, stating that according to an army monitoring team, the construction firm was a defaulter, that Rs310 million was outstanding against it and that its directors had deposited Rs5 million.

The plaintiff firm and its directors alleged that the publication was mala fide and calculated to damage their reputation and credibility. They claimed damages amounting to Rs500 million with interest at the rate of 20 per cent per annum with the cost of the suit.

The defendants contested the allegation and said the news agency (PPI) that creeded the news items stood by the veracity of their contents. The stories related to a matter of public interest and were published in good faith without any malice or ill will or ulterior motive. The publication was privileged under the general law of torts and protected by Article 19 of the Constitution, which guarantees the freedom of the press.

Justice Laghari noted that no motive had been attributed by the plaintiffs to the news agency that released the allegedly libelous stories. It had not even been impleaded as a party and the suit was bad for non-joinder of a necessary party. The plaintiffs had, however, joined a staff reporter of the daily as the fourth defendant but his name was later dropped.

Citing a 2000 Supreme Court judgment, the judge observed that in ordinary cases of privileged communication or of fair comments upon a matter of public interest, the onus was upon the plaintiff to establish the fact of malice to maintain an action. The plaintiff had to prove actual malice in ordinary meaning of the word, that is, spite or ill will or any indirect or improper motive. If the plaintiff failed to prove malice by cogent evidence, he could be non-suited on this ground alone. The burden of proving express malice both by extrinsic and intrinsic evidence lay on the plaintiff to show that a publication was actuated by some indirect or improper motive.

In the instant case, Justice Laghari observed, it could not be gathered by any stretch of imagination that the defendants were actuated by malice or were nursing grudge of any kind against the plaintiffs.

The plaintiffs’ witness admitted in his cross-examination that they had no enmity with the defendants. “The plaintiffs have thus failed to substantiate their claim by proving malice, which is an essential ingredient of an action for libel,” he held.

Advocates Mohammad Ali Abbasi and Mehrunnisa appeared for the defendants and the plaintiffs, respectively.