QB-2022-002648 - [2025] EWHC 2565 (KB)

The Defendant’s witnesses

The Defendant called three witnesses: (1) Shaheen Sehbai, a retired journalist, who made a witness statement dated 1 September 2024 and gave oral evidence remotely; (2) Syed Akbar Hussein, a retired Lieutenant Colonel in the Pakistan Army, who made a witness statement dated 4 September 2024, and who also gave evidence remotely; and (3) Mirza Shahzad Akbar, a non-practising barrister who has had a number of prominent roles in Pakistan, including being Chairman of the Assets Recovery Unit (a coordinating unit set up by the Prime Minister to harmonise efforts to return undeclared wealth of Pakistanis abroad) from 2018 to 2022, who made a witness statement dated 13 September 2024 and gave evidence in person. They were all experienced, articulate, and impressive witnesses.

However, the only live defence at trial was under s4, and - in circumstances where there is no dispute that each of the material statements was, or formed part of, a statement on a matter of public interest - the focus of the factual inquiry relating to that defence is on what the Defendant believed and did at the time of publication. It is also possible that a witness may be able to give evidence which corroborates the evidence of the Defendant. For example, if the Defendant’s case is that a source told him that “the Claimant has taken control of the Lahore High Court” or that “the Claimant is a billionaire”, a witness who can speak to the truth of those matters may be able to give evidence which supports the Defendant’s case – because the fact, if it be the case, that information was true may enhance the prospect that it was, in fact, provided. Accordingly, unless a witness was one of the Defendant’s sources, or can give evidence about what the Defendant knew and did at that time, or can corroborate the Defendant’s account, their evidence is unlikely to be relevant.

In broad terms, the evidence of all three of the Defendant’s witnesses was that issues of the kind which are addressed in the publications complained of in this claim are real, and that problems of the kind which are mentioned are both real and very widely acknowledged. For example, Mr Sehbai states (among other things) that “The ISI grew and gradually became a state within a state. Eventually, they even became stronger than the state, the Parliament, and the judiciary. They began to control media and governmental institutions as they liked”, that the ISI has “use[d] its power to rig elections and make policies according to its world view” and that it seems that “mass blackmail of the judiciary is taking place”.

Mr Sehbai also expresses the views that the current claim has been brought to silence the Defendant, and that the Claimant has not suffered any particular harm to his reputation “as the workings of ISI and its field operatives especially its sector commanders have been much talked and written about including in some international publications”. However, he does not identify these publications, or suggest that any of them “exposed” the Claimant. In any event, in accordance with English law, even if such prior publications exist they do not affect the validity of the Claimant’s claim. These views thus have no evidential weight.

In any event, when it comes to the specific matters with which the Court is centrally concerned – namely, in sum, the Claimant’s personal involvement in wrongdoing or abuses, and the reliability of the Defendant’s reporting – the evidence is less clear and more scant.

Mr Sehbai’s evidence is that he knows the Defendant in professional capacity, has a great deal of respect for him, and regards him as a principled man who takes strong positions. He considers that the Defendant “is very direct” and this “contrasts with the tone of objective neutrality” that Mr Sehbai and many other journalists take, but that does not mean that the Defendant is wrong. The two men share mutual sources, who Mr Sehbai does not identify.

Moving from these general points to the publications in issue:

In the round, therefore, Mr Sehbai’s evidence does not materially assist the Defendant.

The like points apply to the evidence of the Defendant’s other two witnesses.

Mr Hussain (who says that he is an activist who has been declared a digital terrorist by the military regime in Pakistan, court-martialled for sedition in a “sham trial”, and been targeted by assassins sent “on contract” to eliminate him), states that he does not personally know the Claimant. Further, as I read his evidence, he claims no personal knowledge of any of the allegations made against the Claimant in the publications complained of, nor any knowledge, personal or otherwise, of the circumstances in which the Defendant prepared and published the same. He states that (i) “it was practically [the Claimant’s] job” to carry out the type of activities alleged in those publications, (ii) (without identifying a source) the Claimant was “involved” in “the ISI’s manipulation of local administration and politics” in Punjab, (iii) “former colleagues in the military” have told him that the Claimant was appointed as sector commander of the ISI in Punjab on the recommendation of an individual whose business interests he had facilitated, and (iv) in their private conversations with him “journalists, common citizens of Punjab and [the] judiciary” told him that the Claimant was responsible for harassing them. It is not suggested that the Defendant was aware of the allegations at (iii) and (iv) before or at the time that he published any of the material publications, and there is no mention of them in any of those publications. The allegations at (i) and (ii) are sweeping, and Mr Hussain does not explain the basis for them.

Mr Akbar (who served under the government of Imran Khan from 2018 to 2022 and who during that time maintained regular contact with ISI officials including sector commanders in the province of Punjab), states that he had no personal interactions with the Defendant at the time of the material publications, and first came into contact with him in 2024. He further states that at the time when the Claimant was appointed as sector commander for Punjab it was “widely believed” he had been handpicked to work against the PTI government in Punjab. He states that before his resignation in January 2022 he had a meeting with the Claimant and “raised concerns regarding his direct interference with the functioning of accountability court judges and special court judges, particularly those handling serious cases of corruption and money laundering involving opposition leaders”, which allegations the Claimant denied. He never met the Claimant again, but he states that “I now believe most of the stories about Imran Khan and his family and friends were planted in media by his office”. It is not suggested that the Defendant was aware of these allegations before or at the time of publication of any of the publications complained of in this claim, and they do not feature in those publications. If Mr Akbar had provided this narrative to the Defendant in June 2022 and the Defendant had decided to feature these allegations in his publications, that narrative would have included the Claimant’s denial, which the Defendant would almost certainly need to publish if he hoped to succeed on a s4 defence.

Mr Akbar also ventures an opinion on the publications complained of in this claim, although “[he] cannot verify the exact manner in which these events occurred or the specific sources of the Defendant’s information”. Mr Akbar’s main point is that “subsequent events unfolded largely as predicted [by the Defendant]”. Mr Akbar cites as a “prominent example” a tweet about the Claimant “meeting with various political figures, including Hamza, who was the Chief Minister and the time” which “suggested that the government would be prolonged and that elections would be delayed – a prediction that ultimately came true”. In my judgment, this approach betrays the same error as has infected the Defendant’s case throughout, namely to suggest or believe that what matters is a journalist’s political analysis, not whether there is any proper basis for making allegations against individuals.