October 2014

1. PLJ 2014 Peshawar 302 [Mingora Bench] Present: Abdul Latif Khan, J. DR. ANWAR ZADA & others--Appellants versus Mst. YASMEEN & others--Respondents R.F.A. No. 81 of 1998, decided on 2.6.2014. Damages-- ----Suit for recovery as damages, decreed--Decretal amount was reduced by First Appellate Court-- Challenge to--Female patient was admitted by hospital--Allegations of admitting lose character lady in private room of hospital--Story totally false, baseless and fabricated--No hard and fast rules regarding assessment of general damages in defamation cases--It is discretion of Court, who may award compensation on basis of evidence available on file to affected person--As there is no yardstick or definite principle for assessing damages, however, to compensate loss of reputation and mental shock suffered by aggrieved person with aid of sound reason on basis of available record shall be granted against defendant who caused defamation, mental agony, physical and defamed plaintiff in society with special reference to instant case regarding unmarried lady and Court has been informed that due to that incident none accepted her hand and she was still unmarried and by now she was aged about 45/50 years and suffered agony of untoward incident for whole of her life. [Pp. 314 & 315] A Defamation-- ----Ingredients of defamation: (i) Allegations levelled against plaintiff should be false, baseless and unfounded; (ii) Wordings used and allegations levelled, on 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 a large gathering; (iv) Said publications made or wordings used should have been with malice without any reasonable excuse and justification; (v) allegations should have been directly attributed to plaintiff by specifically mentioning his name. [P. 315] B Damages-- ----Human life is invaluable--Compensation--No compensation of mental tension and agony in monetary terms--Validity--It is an admitted fact that human life is invaluable--Any effort assessing its loss in terms of money is an exercise nearing impossibility--Although there can be no compensation of mental tension and agony in monetary terms, as money cannot renew a shattered human frame, but still law has provided that on account of damages, monetary compensation can be awarded, and so Court must do best it can in light of facts of each case, on basis of settled principles of law. [P. 317] C Damages-- ----Right sum of damages--Arithmetic computation exact sum of money could be assessed--Represent mental agony, pain and suffering--Principle of general damages and claim--Rule of thumb for awarding damages--Vest in Court--Inviolability of dignity of man, in humance treatment to cause physical suffering or severe mental pain--Fundamental right of a citizen entitles for monetary compensation as exemplary damages in proceedings before Court of law--Right of a person that dignity was not to be violated--Validity--Whenever a cause with regard to hurt or humiliation was brought before a Civil Court, it was bounden duty of Court to examine allegations and if Court found them false and malicious or tainted with bad faith then defendant had to be visited with civil liability of compensating

2. plaintiff monetarily as it deem appropriate as quantum of damages in defamation cases was to be determined by one of considerations that it must commensurate with financial strength of wrongdoer and position which person wronged held in society qua social standard of plaintiff applying `Rule of thumb'--Plaintiff has got a cause of action to sue and is entitled to recovery of damages determined as damages claimed by plaintiff, however, she is not entitled to decree as asked for against defendants as their case is distinguishable from that of defendant and, as such, they are exonerated of responsibility. [P. 319] D M/s. Faqir-ur-Rehman Jadoon, Syed Abdul Haq, Sayyed Badshal, Naeem-ud-Din & Fazal Malik, Advocates for Apellants. Mr. Hazrat Rehman, Advocate for Respondents. Date of hearing: 2.6.2014. Judgment This appeal has been directed against the judgment and decree dated 22.10.1998 passed by learned Senior Civil Judge/Aala Illaqa Qazi, Dir at Timergara, whereby suit of the respondent/plaintiff for recovery of five millions rupees was decreed. 2. Facts of the case are that Mst. Yasmeen, plaintiff/respondent instituted a suit against Dr. Anwarzada and seven others for recovery of Rs. 50, 00,000/- as damages alleged therein that she was sick and was under treatment of different doctors. On 28.8.1992, she came to DHQ, Hospital, Timergara, for treatment and after getting OPD chit and consulting Medical Specialist, namely, Dr. Shoib, she purchased medicines as per his prescription, and went back to her home but feeling no relief, she again came to the hospital on 26.8.1992 for further treatment and on examination. Dr. Muhammad Shoib advised her admission in the hospital and as she had neither consulted her family members nor having necessary utensil, so, she went back home and on 27.8.1992 at morning, she alongwith her father, niece Mst. Nusrat and nephew Muhammad Zeb came to the hospital and after making arrangement for a private room in the hospital by her father, she alongwith her father, niece and nephew went to the said room. After some time at 10.00 a.m, Dr. Anwarzada, Appellant No. 1, came there and asked her some loutish and irrelevant questions, went out and again came there after a few minutes alongwith defendants 2 to 7 and asked from her further ridiculous questions about her character. The appellants then started search of the room, their persons and bathroom in spite of the fact that the appellants were told that she was ill and Dr. Muhammad Shoib advised her for admission in the hospital but even then, they continued search of the room and her body and also her family members. She averred in the plaint that in the meanwhile, sufficient number of the public attracted to the spot, observing her as well as her family members-in miserable situation through the door and windows of the room from the verandah, thereafter, the defendants locked the bathroom as well as the room from outside and asked the local police to guard against her room. Defendant No. 1 at the same time asked the hospital staff not to provide any medicine to her, thereafter, her sister also arrived in the hospital but she was not allowed by the police guard to come inside the room. She alleged in her plaint that the defendants kept her and her other family members in illegal confinement since morning of 27.8.1992 till 8.00 p.m on 28.8.1992. She averred that at the intervention of the SHO of the Police Station, the guard was removed and she was allowed to go her home without any treatment. The acts of the defendants were not only against their profession but she and her family members were highly disgraced and humiliated besides she was put to severe mental and physical torture. She further alleged that the incident was advertised in the local newspapers on which her relatives annoyed as a result of which they attacked on her house on 29.9.1992 at night time and started indiscriminate firing due to which her nephew was hit and died while her father received injuries and some of the inmates of her house also received injuries, therefore, the plaintiff sought for the desired decree.

3. 3. The suit was contested by the defendants by filling written statement. Learned trial Court when found parties on cross road, framed the following issues from the divergent pleadings of the parties. ISSUES. 1. Whether the plaintiff has a cause of action? 2. Whether suit is incompetent in present form? 3. Whether suit is bad for mis-joinder and non-joinder? 4. Whether proper Court fee has not been a fixed on the plaint? 5. Whether this Court has got jurisdiction to try the present suit? 6. Whether proper notice was not given to the defendant prior to present suit, if so, its effect? 7. Whether suit has been mala fidely instituted? 8. Whether defendants are entitled to receive special costs from plaintiff under Section 35-A C.P.C? 9. Whether plaintiff was advised to be admitted in civil hospital Timergara in view of her serious illness and consequently she got a private room on 27.8.1992 for the purpose of treatment? 10. Whether Defendant No. 1 to 7 have sow nindescency towards plaintiff by asking irrelevant questions about her character and they also disgraced and humiliated her by conducting illegal search of her person and the room, locking the doors of bathroom as well as private room and also arranged police guard on the said room mala fidely? 11. Whether Defendant No. 1 to 7 managed to stop the supply of medicines and food to the plaintiff during her stay in the hospital room and she was forcibly confined to the said room from 10.30 a.m on 27.8.1992 till 8.00 p.m on 28.8.1992. 12. Whether the acts of Defendants No. 1 to 7 were based on mala fide and violative of their professional norms and conduct due to which plaintiff faced mental torture, agony and humiliation in the family as well as general public and it was in this background that the niece of plaintiff was killed by the maternal uncle/relatives of plaintiff in fury of anger? 13. What is the liability of Defendant No. 8 in the present case? 14. Whether plaintiff is entitled to the recovery of Rs. 50 lac form defendants on account of defamation, mental tension and agony, as damages? 15. Relief. 4. After framing of issues and submission of lists of witnesses, the parties produced their respective evidence as they wished to adduce. After the close of evidence and hearing the parties, learned trial Court decreed the suit in favour of plaintiff against the defendants vide judgment and decree dated 22.10.1998. 5. The defendants/appellants felt aggrieved of the judgment of trial Court filed RFA No. 81/1998 before this Court, which was partially accepted and reduced the decretal amount from 50,00,000/- to 20,00000/- vide judgment and decree dated 11.5.2005. 6. Both the parties filed Appeals No. 1759/2005 and 1825/2005, which were accepted and the case was remanded back to this Court for decision of Appeal No. 81/1998 afresh. 7. Learned counsel for the appellants contended that the plaintiff has failed to prove her proper and legal admission in private room of the hospital in the hospital and Ex.PW 6/1 does not bear her name. It is contended that Dr. Muhammad Gul, PW-7, has also not supported the case of the

4. respondent/plaintiff and findings of trial are the result of mis reading and nonreading of evidence. It is contended that trial Court has not properly addressed the issue with special reference to Issued Nos. 10, 11 and 12. It is contended that the inquiry was conducted on the direction of Medical superintendent which was wrongly ignored by the Court below. It was argued that evidence led in support of Issue Nos. 3, 6 and 13 was not properly appreciated by the trial Court and solitary statement of the plaintiff has been based for decree in her favour which is against law and norms of justice. It is contended that the allegation made against the appellant by the plaintiff regarding her illegal confinement in the room and use of abusive and insulting language has not been proved through confidence inspiring evidence. It is contended that the plaintiff badly failed to prove that any occurrence allegedly taken place on the basis of incident in the hospital and that due to this incident her father became mad/insane as no evidence to this effect has been produced and entire case hinges upon presumption which cannot be based upon for decree in her favour of huge amount. It was contended on behalf of Respondent 2 and 3 that no role has been attributed to the appellants and even in enquiry they were assigned no role to this effect and there exists no evidence that they have committed any act violative of law which entitles the plaintiff/respondents for damages. It was also argued that the trial Court has not differentiated the role of appellants. It was contended that the agent and owners of the newspapers were not made as party. It was added that the quantum of damages is too high and not commensurate with the facts alleged by the plaintiff/respondent. 8. As against that learned counsel for the respondents contended that the appellant failed to rebut the incident taken place in hospital. It is contended that plaintiff/respondent was legally admitted in the hospital and referred to Ex.PW 5/1 to Ex.PW 5/5 and Ex PW 6/1 to Ex.PW 6/3 and argued that these documents shows that room No. 6 was allotted in accordance with law which fact has been admitted by the doctor. It is contended that Dr. Shoaib has admitted that she remained her patient and was examined by her admission in the hospital. It is contended that PWs 5 and 6 have brought the record which shows that legal admission by respondent in the hospital. It was vehemently contended that Dr. Anwar Zada was having no authority as he was neither Medical Superintendent nor Incharge and failed to produce any evidence that he was given the task to supervise as Medical superintendent and has verbal assertion that he was asked by the doctor working as acting M.S to look after the affairs of the hospital was not supported by any evidence and this plea was taken just to counter the incident taken place as alleged by the plaintiff. It is contended that Appellant No. 1 visited the room of the appellant without any justification and normal routine asking her insulting and derogatory questions regarding her character besides search of the room, wash room and personal search of the plaintiff and her family members i.e., father and niece and during all this large number of people including police contingent she was humiliated at public by the appellant. It is contended that due to the non professional attitude of the Appellant No. 1, the respondent and her family member were highly disgraced and humiliated which cause mental torture and as result of incident the matter was published in local news papers and close relatives and maternal uncle of the plaintiff were highly annoyed and instigated to attack her house and started indiscriminate firing as a result of which her nephew was killed and some of the inmates of the house were received injuries. The trial Court has appreciated the evidence on the record with conscious and application of independent mind and rightly granted decree in favour of the respondent warrants no interference. 9. Arguments of learned counsel for parties heard and record perused. The issue-wise findings are as under:- ISSUES NO. 9 to 13. All these issues being interlinked and core issues, therefore, I would like to discuss it on bloc. Defendants No. 1 to 3 are the Medical Officers, who were posted in DHQ, hospital, Timergara in year, 1992, whereas Defendants No. 4 to 7 were the paramedical staff while Defendant No. 8 was the Medical Superintendent in the said hospital. The plaintiff based her claim for recovery of Rs.

5. 50,00,000/- as damages against all the defendants and their individual role has not been bifurcated in the incident. Medical Superintendent was not present on the day of the incident and Dr. Anwar Zada, Defendant No. 1/appellant, claimed to have been assigned with the duty of acting Medical Superintendent in the hospital, however, he failed to produce any evidence, either documentary or oral to this effect that he was assigned with the duty as Medical Superintendent to look after the overall administration of the hospital. So far as Defendants No. 2 and 3, Dr. Rafi ud Din and Muhammad Riaz are concerned, no role has been attributed to them by the plaintiff and even in the inquiry no role has been assigned to them. The scanning of the entire evidence would reveal that Defendants 2 to 8 have not been ascribed any specific role for which they can be held responsible for disgracing and humiliating the plaintiff. After remand of the case from august Supreme Court, the parties relied upon the evidence already recorded by the trial Court despite opportunity afforded to the parties to raise all questions/objections in the light of the issues framed with special reference to the question of defamation and the entitlement of the plaintiff regarding amount of damages as claimed by her. The plaintiff in support of her claim produced Bakht Zameen as PW-5, who produced the documents regarding the admission of plaintiff in the hospital. Ex PW 5/1 reveals that the name of plaintiff finds mentioned in it at Serial No. 46687 dated 22.8.1992. Similarly another document was produced and at page No. 351 at S.No. 48150 the name of plaintiff is find mentioned. He also produced documents Ex. PW 5/2 to Ex. PW 5/4, however, Ex PW 5/2 reveals that name of plaintiff has been shown with age of about 40 years, however, it bears cutting in dates. Ubaidullah, Incharge Private Rooms, DHQ, Hospital, Timcrgara, was produced as PW-6, who brought on record the chit of Dr. Muhammad Gul, ENT, Specialist, dated 27.8.1992, posted as Ex PW- 6/1, admission chait of the even date and indoor private room register of dated 27 & 28 August, 1992 regarding Room No. 6, which are posted as Ex.PW-6/2 and Ex.PW-6/3 respectively. The witness in his cross-examination deposed that Room No. 6 was under supervision of ENT Specialist. He refused the suggestion that a doctor cannot allow a room to the patient which is in the control of another doctor without permission of Medical Superintendent. He deposed that private Room No. 6 was allotted to the plaintiff on the chit brought by one Jehan Anwar, Radiographer. Statement of Dr. Muhammad Gul, liNT, Specialist, was recorded as PW-7, who verified his initial on the chit, Ex.PW-6/1, vide which the room was allotted to one patient of Dr. Shoib on the request of one Sher Rehman, Dispenser. Though, the name of the plaintiff was not mentioned in it, however, it was confirmed by the doctor that the same room was allotted on the request of Sher Rehman. He also deposed in his cross-examination that on 27.11.1992 at 11.15 a.m Dr. Anwar Zada, Dr. Riaz and Dispenser Qazi Halim requested him for a private room for their patient and in response to which he informed them that he has one room which he had already allotted to his own patient on the request of Sher Rehman, Dispenser. Statement of Dr. Shoib was also recorded, who has affirmed the stance of plaintiff to the effect that on 22.8.1992 the plaintiff came to him and he verified the prescription which is in his own hand writing. Similarly, he also verified the prescription dated 27.8.1992 advised by him to the plaintiff wherein her name was also find mentioned and he has verified the signature over it. He has admitted that he examined the patient on 26.10.1992 and admitted her in the hospital. He further deposed that the plaintiff remained his patient, however, he was unaware of the affairs after admission in the hospital as he paid no visit/round in the evening normally. He deposed that the patient was admitted in hospital on the next day which is a routine matter as the patient, advised for admission for variety of reasons adjourned for the other day, if not serious case of emergency. Dr. Muhammad Rahim Shah, PW-9, was examined, who worked as Assisting Medical Officer with Dr. Shoib and supported the deposition of Dr. Shoib and also Ex.PW 5/3. He deposed that Dr. Uzair advised the plaintiff to be admitted in the hospital as she was not feeling well but the plaintiff was reluctant due to her personal obligations, however, in cross- examination he deposed that it is not necessary for a Doctor to examine the patient only on the chit and in case of an old patient if prescription is provided the patient can be examined by the doctor directly. He deposed that he the plaintiff examined on 22.8.1992 and to this effect the record also supported the statement of this witness. The statement of Sher Rehman, Dispenser and Jehan Anwar, Radiographer,

6. were also recorded and as per version of the Sher Rehman the patient of Dr. Shoib advised for admission and on his request a room was allotted by Dr. Gul Muhammad in favor of the plaintiff. He deposed in cross-examination that plaintiff was not known to him, however, Jehan Anwar, Radiographer, deposed that an old person accompanied the patient was stated to be the father in law of one Bakhtiar mistri, who had friendly terms with him, asked him that they are in need of private room and the old person named as Gul Sahib Haq, happened to be the father of the plaintiff, however, he deposed that the plaintiff was not known to him right from the incident. The plaintiff herself appeared as PW-13, who has reiterated the stance as averred in the plaint. She has produced and exhibited all the prescriptions regarding her long ailment, which were not objected by the other side. She was subjected to searching cross-examination but nothing adverse to the stance of plaintiff was brought on record from this witness. On the other hand, the defendant produced evidence and brought on file record of the hospital. DW-5 has not uttered a single word regarding illegal admission of the plaintiff into the hospital. He deposed that on 28.8.1992 on the request of Bukhtiar Mistri, who claimed to be the brother in law of the plaintiff/respondent, asked him to make request to Dr. Anwar Zada, Defendant No. 1/appellant, to discharge the patient/plaintiff from the hospital and in response he told him that due to Friday she cannot be discharged as the record of the private room was in the custody of Incharge private room and she would be discharged on next day morning and at the time of discharge, father of plaintiff produced a chit Ex.PW-6/1 vide which he undertook that the plaintiff would not commit mistake any further and would not make interaction with bad character people/vagabonds in the premises of hospital. The document by itself shows malice on the part of Dr. Anwar Zada, Defendant No. 1 /appellant, as this is something abnormal and that too, without proof that who were persons with whom she had relations for which the Medical Officer, Anwarzada, was having reservations. Needless to mention that he was a simple doctor in hospital and was having no nexus with the' ailment of the plaintiff, or her admission in the hospital or her affairs as he was not occupying the status either Incharge of Hospital or private rooms or was performing his duty as acting Medical Superintendent. He was unable to substantiate through his own statement and in evidence of the defendants or even in cross-examination of the PWs to show his locus standi to inquire about the character or relation of the plaintiff with any characterless persons as alleged by him and has levelled serious allegations against the plaintiff resulting into her humiliation and bad name in the society. His visit to the room of the plaintiff alongwith other staff as deposed by the plaintiff and exchange of hot talks between the parties with special reference to search made by him and abusive language used by the doctor, was not denied rather had given a different colour to his visit claiming himself to be the overall Incharge of the hospital for which he has badly failed to prove and stance of the Defendant No. 1/appellant that plaintiff was illegally admitted in hospital, was misplaced, for the reason that documents produced by the employees of the hospital shows that she was legally admitted in the private room of the hospital and there is nothing in rebuttal of the documents produced by the PWs. It is evident from the record that DW-5 has produced an enquiry report, posted as Ex DW 5/1. The enquiry was allegedly conducted by the three doctors, namely, Dr. Shahabuddin, Dr. Abdullah and Dr. Shah Bahadar but none of the authors of the enquiry report has been produced in support of the document rather it was produced by an un-authorized person. The findings of the alleged enquiry officers were to the effect that admission of the patient/plaintiff in hospital was illegal, however, ignored the purpose for which the enquiry was allegedly conducted. The Junior Clerk, who has brought on record the said report, was not entrusted with the duty either to retain the same or to produce before the Court and, as such, cannot be relied upon. Moreover, the findings arrived at in the enquiry are contrary to the statements of PWs, namely, Dr. Shoib, Dr. Muhammad Gul and Sher Rehman, Dispenser. The learned counsel for the Appellate/Defendant No. 1 also referred to enquiry made by the Medical superintendent which was not brought on record, however, the author of the same was not

7. examined in support of the document and, as such, of no importance and cannot be considered as evidence in the case. A perusal of the evidence would suggest that the unfortunate incident took place in the hospital as alleged by the plaintiff which has been, though, denied evasively, however, Appellant/Defendant No. 1 in his written statement took the plea that the plaintiff got entered into the private room without any justification, entitlement rather against the procedure, unlawfully. In reply to Para 14, the allegations made by the plaintiff were rebutted as baseless, however, it was added that prior to this, the inhabitant of the area have shown their reaction and report was made in the Police Station by dint of FIR No 77 dated 26. 4.1986 while deposing as DW-8, the Appellant No. 1, on his behalf and as attorney of rest of the defendants, power of attorney was produced on file as Ex. DW 8/1, deposed that on 27.8.1992 he was acting as Incharge of DHQ, Hospital, acquired knowledge that a few girls occupied private Room No. 6 without proper documentation, thereafter, he enquired about it from the staff and in the company of few doctors he tried to get the information for about two hours but failed to find out any permission for admission in the room, thereafter, on the conduct of Mst. Yasmeen, who was abusing the staff members, namely, Jehan Anwar, etc he informed the Incharge of Police Post and asked him to look after Mst. Yasmeen, later on, at evening, some relatives of Mst. Yasmeen met him and asked for her discharge from the hospital, which he accepted as she was not legally admitted in the hospital. lie deposed that neither he nor any of the staff members has even talked to Yasmeen, plaintiff, nor abused her and suit being baseless is liable to be dismissed. In cross-examination he admitted that he was unable to produce the authority as to his duty as Incharge of Hospital on 27.8.1992. Me admitted that for enquiry he alongwith his companion and Incharge of PP went to the private Room No. 6 to enquire from plaintiff about documents regarding her admission in the hospital, who in response told the same story which was narrated by an old man, her father, when enquiry was made from him who justified her admission in the hospital. Needless to mention that documents in this regard were produced by the concerned Clerk, who deposed as PW-5, duly exhibited as Ex. PW 5/1 to Ex PW 5/3. Later on, he-went to Dr. Shoib, who deposed that he has not admitted the patient in Room No. 6, thereafter, he consulted Dr. Muhammad Gul, who deposed that he has no knowledge about the admission but the statements of Dr. Shoib and Dr. Muhammad Gul runs counter to the statements of Defendant No. 1, who admitted the examination of the patient and admission in private Room No. 6, so, the plea of Defendant No. 1/appellant to the effect that the plaintiff was illegally and against procedure occupied the private Room No. 6, was misplaced. He has categorically mentioned that on enquiry and acquiring knowledge about illegal occupation of Private Room No. 6, he alongwith Defendants 2, 3 and 4 went to the room where in veranda a cot was lying where upon an old person alongwith Incharge of PP, Timergara, was sitting, told him that room was occupied by him alongwith his daughter and granddaughter. He further asked about the documents regarding her admission, who, in response, told him that the dispenser, Sher Rehman, had got admission for them on the chit provided by Doctor and this fact has already been affirmed by Dr. Muhammad Gul and Dr. Shoib. Strange enough that the appellant deposed that when he reached the private room, the persons present there were seems to be highly doubtful and it does not stand to reason that once he went there and asked about the document and told the plaintiff that Dr. Shoib has not allowed her to occupy the room in response to which the inmates of the room told him that the admission was made through Jehan Anwar, who told her that she was telling a lie and on this the plaintiff started abusing Jehan Anwar, however, he has admitted that the lady has not abused him. He further deposed that the plaintiff insulted him and said that had there been any brother of the lady, Jehan Anwar would have not dare to abuse or tease her. He was handicapped to answer this question that at the time of repeated questions from the plaintiff, numerous persons from general public gathered around. He also shown his ignorance about the publication of news in newspapers, however, it is available on file, posted as Ex. PW 12/16 to Ex. PW 12/19. He has admitted that he gave directions to the Incharge of Police post that to make observance on private Room No. 6 and that irrelevant person, vagabond and bad characters be restrained from entrance into the room of the plaintiff. He has admitted that he never examined the plaintiff as Doctor as to whether she was suffering from any ailment or not.

8. The scanning of the statement of Defendant No. 1/appellant shows that he has travelled beyond his assigned duty as ordinary doctor, posted in hospital, though, he claimed to be the Incharge of the hospital, but he was handicapped to produce any documentary proof and even failed to prove his oral order, if entrusted him with the duty to act as an Incharge of the hospital. He has gone a step ahead from his duty entrusted to him as a doctor rather has acted as an Investigating Officer in a criminal case without any proper complaint lodged by any one against the plaintiff. The repeated inspections, search of the room, wash room and even body search of the plaintiff was neither the mandate of law nor was in the job descriptions of the doctor and, as such, he has acted in a manner disregard of his duty entrusted to him which shows malice on his part for variety of reasons and cannot be exonerated of the responsibility as he was not authorized to enquire about the conduct of an ailing patient and if at all there was any discrepancy of minor nature in her admission into the room of hospital, would not authorize him to humiliate and insult a young lady of about 20/22 years, who in the company of her niece and old father had occupied the room on advise of her doctor with the help of the paramedical staff working in the hospital. The doctor, Defendant No. I/appellant, in no eventuality was authorized to enter into her room as she was neither his patient nor the appellant was vested any powers to enter into her room without her permission or to put any scandalous questions of defamatory nature to humiliate her. It was one man show and other doctors and paramedical staff were not attributed any role, though, may have accompanied him but cannot be held responsible for the act done by Appellant No. 1. The appellant belongs to a noble profession and is supposed to act as such, however, the allegations levelled against him have been duly proved by production of tangible and confidence inspiring evidence by the plaintiff and the untoward incident has not been denied by the doctors, however, given different colour, would not exonerate him from the liability. The respondent/plaintiff was confined in hospital and when the police official was deputed to watch the room and, thereafter, a private person, namely, Ranja was deputed to watch the room by Dr. Anwar Zada which shows that he has travelled beyond his powers and acted malice and just to harass and humiliate the plaintiff/respondent. The derogatory remarks passed by doctor were not within his powers and has not only exceeded his powers but exceed the limits of ethics as a human being which was against the requirement of his profession. The Appellant No. 1 asked the hospital staff not to provide medicine to the respondent and kept her in confinement for about 33/34 hours and lastly on the intervention of the SHO of the Police Station Guard was removed from the plaintiff and was allowed to go home without any treatment despite the fact that she was suffering from ailment and was admitted in hospital for treatment. Ex.PW 12/16, news published in Frontier Post, Sunday, September, 1992, in the letters to editor column, wherein incident has been narrated with special reference to the conduct of the doctor. According to the report the doctor had developed grudges against a fellow hospital employee, who happened to be his political rival, as a female patient was admitted to the hospital, was allotted a private room, levelled allegations of admitting a lose character lady in private room of the hospital and termed the story totally false, baseless and fabricated and was aimed to implicate his rival and the police found none except the old father of the ailing lady and was unable to register a case against the ailing patient. The incident was also published in Urdu Daily Newspapers on behalf of the different political leaders of the area and Timergara Hospital Scandal was publicized in the newspapers and, as such, plaintiff was publically humiliated without any proof against her. The subsequent unfortunate occurrence took place due to the present incident as alleged by the plaintiff, was the brutal attack on her house by her relatives/maternal uncle solely on the ground that due to her humiliation they have been disgraced in the society resulting into murder of her niece and injury on the person of her father and the occurrence was reported vide FIR No 182 dated 29.8.1992 under Sections 302/307/34, PPC registered at Police Station Balambat, which shows the loss suffered by her and all this happens due to ill-will of Appellant No. 1 against the plaintiff as spelt out from the plaint and evidence produced by the plaintiff, which has gone un-rebutted. The findings recorded by the trial Court on the above issues are correct and the issues have correctly been decided in favour of the plaintiff.

9. ISSUE NO. 2 to 4 & 6. This is a suit for recovery of damages and has been properly valued for the purpose of Court fees. Learned counsel for appellants has failed to show that how the suit is incompetent and mis-joinder or non-jounder of parties. The trial Court has rightly dealt with the above issues and its findings are not open to any exception. ISSUE NO.5. The plaintiff has filed the instant suit in year, 1992, for recovery of general damages before the Court of Senior Civil Judge under the general law of Tort and ordinary Court of original jurisdiction has got the jurisdiction to try a simple suit for damages. ISSUES NO. 7 & 8. No evidence has been produced by the defendants to the effect that the suit has been filed by plaintiff due to some ulterior motive or mala fidely, therefore, both the above issues have rightly been decided in negative. ISSUE NO.1 & 14. Admittedly, No hard and fast rules have been laid down regarding assessment of general damages in defamation cases. It is the discretion of the Court, who may award the compensation on the basis of evidence available on file to the affected person. As there is no yardstick or definite principle for assessing the damages, however, to compensate the loss of reputation and mental shock suffered by the aggrieved person with the aid of sound reason on the basis of available record shall be granted against the defendant who caused defamation, mental agony, physical and defamed the plaintiff in the society with special reference to the instant case regarding unmarried lady and the Court has been informed that due to this incident none accepted her hand and she is still unmarried and by now she is aged about 45/50 years and suffered the agony of the untoward incident for the whole of her life. The necessary ingredients constituting the defamation were summarised are as under:- (i) The allegations levelled against the plaintiff should be false, baseless and unfounded; (ii) The wordings used and the allegations levelled, 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 a large gathering; (iv) The said publications made or wordings used should have been with malice without any reasonable excuse and justification; (v) The allegations should have been directly attributed to the plaintiff by specifically mentioning his name. The general damage are distinguished from special damages referred to special character, condition or circumstances which occurs from immediate, direct and approximate result of wrong complained of. The apex Court in the case of Abdul Majeed Khan vs. Tawseen Abdul Haleem and others, reported in PLD 2012 Supreme Court 80 observed the following relied upon other judgments reproduced therein: "At this stage, it is to be noted that there are two types of damages namely; special damage and general damages. The term general damages refers to the special character, condition or circumstances which accrue from the immediate, direct and approximate result of the wrong complained of. Similarly, the term special damages are defined as the actual but not necessarily the result of injury complained of. It follows as a natural and approximate consequence in a particular case, by reason of special circumstances or condition. It is settled that in an action for personal injuries, the general damages are governed by the rule of thumb whereas the special damages are required to be specifically pleaded and

10. proved. In the case of British Transport Commission. vs. Gourley (1956) AC 185, it has been held that special damages have to be specially pleaded and proved. This consists of out of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. The general damages are those which the law implies even if not specially pleaded. This includes compensation for pain and suffering and the like and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earning and out of pocket expenses are concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money and he would have be had the accident not happened. The same principle has been referred to in the case of Qazi Dost Muhammad vs. Malik Dost Muhammad (1997 CLC 546), in the following terms:-- "It is a settled principle of law that in respect of special damage it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages is concerned, relating to mental torture, defamation etc, those to be measured, following the Rule of Thumb, according to which discretion rests with the Court to calculate such compensation keeping in view the attending circumstances of the case. As far as inconvenience is concerned, this item can be considered while assessing the general damages." In the case of Islamic Republic of Pakistan vs. Sh. Nawab Din (2003 CLC 991) the principles for ascertaining the quantum of general and special damages have been discussed in the following words:-- 13. Principle for ascertaining the quantum of general special damages is laid down in the leading case of Hadly vs. Baxendale (1854) 9 Ex Ch. 341 which clearly provides the distinction between the two. The provisions of Section 73 of the Contract Act, 1872 are not much different for purpose of practical application. Claim for damages was rejected as being too remote in the case of Banco de Portugal v. Water low and sons Ltd. (1932) A. C. 452 and again in the case of Commell Lairds and Co. v. Managanese Bronze and Brass Co. (1993) 2 KB 141. General damages naturally arising according to the usual course of things from the breach of contract are recoverable in the ordinary circumstances. Special damages are awarded in case, as may reasonably, be supposed to have been in contemplation of both parties at the time of contract. The law does not record consequential damages arising of delay in respect of money as one in the case of Graham vs. Campbell (1877 ) 7 Ch. D. 494 and Urquhart Lindsay and Co. v. Eastern Bank Ltd, (1992) 1 K.B. 318. Same view has been taken by honourable Supreme Court of Pakistan in the case of Syed Ahmad Saeed Kirmani v Messrs Muslim Commercial Bank Ltd, 1993 SCMR 441. While relying upon the above said judgment this Court in the case of Azizullah Sheikh vs. Standard Chartered Bank Ltd (2009 SCMR 276) has held as under:-- 6. "The petitioners did not produce any evidence to show that in fact they suffered any loss due to breach of contract. Solitary statement of Petitioner No. 1 is not sufficient to decree the colossal suit amount, as PW. 2 did not state anything about the damages. Besides the reasons advanced by the learned High Court (single bench and Division Bench) for declining the total claim of the petitioners, we may add here that the petitioners through production of evidence comprehensively failed to prove that due to breach of contract they are in fact entitled to damages and to what extent, which are sine qua non for the grant of damages under Section 73 of the contract Act. Thus we are clear in our mind that the petitioners could not prove that they suffered any loss. They also failed to prove through production of evidence on record that they were entitled for decree of the total amount claimed in the suit". In the case of Mrs. Alia Tareen Vs Amanullah Khan (PLD 2005 SC 99), It has been held that in a suit for damages, the wrong done to the plaintiff must be proved to be the immediate, direct and proximate result of the act or acts attributed to the defendants.

11. 4. It is an admitted fact that human life is invaluable. Any effort assessing its loss in terms of money is an exercise nearing impossibility. Although there can be no compensation of mental tension and agony in monetary terms, as money cannot renew a shattered human frame, but still the law has provided that on account of damages, monetary compensation can be awarded, and so the Court must do the best it can in the light of the facts of each case, on the basis of settled principles of law. In the case of C.K Subramonia Iyar v. T Kunhikuttan Nair (AIR 1970 SC 376), the Indian Supreme Court has observed under:-- "There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must-exclude all considerations of matter which rest in speculation or fancy through conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority." It is to be noted that it cannot be specifically declared that what should be the right sum of damages in any particular case, and no two cases are alike. It cannot be suggested that by any Arithmetic Computation the exact sum of money could be assessed, which would represent mental agony, pain and suffering which a person has undergone. Reference in this behalf can be made to the case of Soinglete, J. said in Waldon vs. War Office [(1956)]- I WLR 51] and The Mediana (1900 AC 113). In the case of British Transport Commission (Supra). Lord Goddard has also observed as under:-- "Damages which have to be paid for personal injuries are not punitive, still less are they a reward. They are simply compensation, and this is as true with regard to special damages as it is with general damages". In a similar case titled as Cooper vs. Firth Brown Lts [(1969) 2 All ER31]= [1963] I WLR 418], Lawson, J. made the following observations: "It seems to me that the object damages is to compensate the plaintiff for what he has lost, and what he has lost is what would have been an his pay packet, when he took it home and it seems to me that when special damages are being calculated there should be deducted the amount of any National Insurance contributions the plaintiff would have had to make, if he had remained in work." Similar view was expressed by apex Court in Malik Gul Muhammad Awan's case reported in (2013 SCMR 507) wherein the principle of general damage and claim made thereunder was held as 'Rule of Thumb' for awarding damages by holding that the discretion vest in the Court had to be exercised in the light of facts and circumstances of each case. For easy reference the same is reproduced as under:-- "Awarding of damages was discretionary and said discretion had to be exercised in the light of the evidence led qua the extent of damages suffered by a party." In the case of Dr. Mehnwod Nayyar Azam vs. State of Chhattisgarh and others reported in 2013 SCMR 66 the apex Court of India has observed regarding inviolability of dignity of man, inhumane treatment to cause physical suffering or severe mental pain which resulted into humiliation, which is against the fundamental right of a citizen entitles him for monetary compensation as exemplary damages in a proceedings before a Court of Law. Article 14 of the Constitution recognized and protected a right of a person that his dignity was not to be violated. Whenever a cause with regard to hurt or humiliation was brought before a Civil Court, it was bounden duty of the Court to examine the allegations and if Court found them false and malicious or tainted with bad faith then defendant had to be visited with

12. civil liability of compensating the plaintiff monetarily as it deem appropriate as quantum of damages in defamation cases was to be determined by one of the considerations that it must commensurate with financial strength of wrongdoer and position which the person wronged held in society qua the social standard of the plaintiff applying `Rule of thumb'. The plaintiff has got a cause of action to sue and is entitled to the recovery of damages as asked for but only against Defendant/Appellant No. 1, namely, Dr. Anwar Zada, and Rs. 30,00,000/- (three million) is determined as damages claimed by the plaintiff, however, she is not entitled to the decree as asked for against Defendants No. 2 to 8 as their case is distinguishable from that of Defendant No. 1 and, as such, they are exonerated of the responsibility. RELIEF. For the aforesaid reasons, instant appeal is dismissed to the extent of Appellant No. 1, however, the amount of damages is reduced to Rs. 30,00,000/- while appeal to the extent of appellants 2 to 7 is accepted, judgment and decree of trial Court to their extent is set aside and suit of plaintiff against them is dismissed with no order as to costs. (R.A.) Appeal dismissed