PLJ 2022 Lahore 423
Malicious Prosecution--
----Recovery of damages--Acquittal due to deficient proof--Ingredients of malicious prosecution--Respondent No. 1 under law was duty bound to prove that defendants acted without any reasonable and probable cause and defendant was actuated by malice and proceedings had interfered with plaintiffs liberty and had also affected his reputation. No ingredients of malicious prosecution had been proved by Respondent No. 1--He was acquitted only on ground that prosecution has failed to prove case against accused beyond any shadow of reasonable doubt--When an-accused is acquitted by Court on, basis of benefit of doubts or prosecution's failure to-prove its case beyond a reasonable doubt, then recovery of damages on of malicious prosecution are not available in said case--Mere acquittal of Respondent No. 1 in criminal case by extending him benefit of doubt is not sufficient by itself to establish a case for malicious prosecution--Facts and consistent law on subject has not been taken into consideration by Courts below illegally passed impugned judgments & decrees on basis of misreading and non-reading of evidence as well as against record and mis application of law which are not sustainable and liable to be set-aside--Revision petition allowed. [Pp. 428, 431 & 433] B, C, D & E
1999 SCMR 700, PLD 2020 Sindh 700, 2020 CLC 1331,
2018 MLD 1202 and 2016 SCMR 24 ref.
Ingredients for Melecious Prosecution--
----Recovery of damages--
i) That Plaintiff was prosecuted by the Defendant;
ii) That the prosecution ended in favour of the Plaintiff;
iii) That the Defendant acted without reasonable and probable cause;
iv) That the Defendant was actuated by malice (with. improbable motive and not to further the ends of justice); and
v) That the proceedings had interfered with the Plaintiffs liberty and had also affected his reputation and the Plaintiff had suffered damages. [P. 427] A
Rana Muhammad Akmal Khan, Advocate for Petitioners.
Ms. Naila Mushtaq Dhoon and Mr. Muhammad Mushtaq Ahmad Dhoon, Advocates for Respondents.
Date of hearing: 2.11.2021.
PLJ 2022 Lahore 423
Present: Ch. Muhammad Iqbal, J.
versus
MUHAMMAD ASHRAF etc.--Respondents
C.R. No. 6583 of 2020, heard on 2.11.2021.
Judgment
Through this civil revision, the petitioners have challenged the legality of judgment & decree dated 23.02.2016 passed by the learned Civil Judge, Sialkot who decreed the suit for Recovery of damages on the basis of malicious prosecution to the tune of Rs. 50,00,000/- filed by Respondent No. 1 whereas to the extent of Defendants No. 4 to 8 suit was dismissed and judgment & decree dated 16.09.2019 passed by the learned Addl. District Judge, Sialkot who dismissed the appeal of the petitioners.
2. Brief facts of the case are that Respondent No. 1/plaintiff filed suit for recovery of Rs. 1,01,50,000/- on the basis of malicious prosecution against the petitioners/defendants contending therein that he was retired clerk in Pakistan Army and was residing in Rawalpindi, Muhammad Boota, the real brother of defendant No. 1 was murdered on the mid-night of 28/29-06-2000. Defendant No. 1 got registered an FIR No. 440/2000 under section 34, 449, 460, 449, 302 PPC at Police Station, Uggoki against unknown persons. Through a supplementary statement dated 07.07.2000, defendants nominated Respondent No. 1/plaintiff as well as Hafiz Ghulam Hussain, Amjad Hussain and Muhammad Asghar as accused persons in the said criminal case. The Respondent No. 1/plaintiff was being army personnel could not be arrested and was declared proclaimed offender. Later on, Respondent No. 1 was arrested and after trial he was acquitted by the learned Addl. Sessions Judge vide judgment dated 11.10.2008, Respondent No. 1/plaintiff filed present suit for recovery (Rs. 1,01,50,000/-) on the basis of malicious prosecution against the petitioners contending therein that he was involved falsely and collusively in the said criminal case. Thus he suffered mental & physical agony injury to reputation, etc. and is entitled to receive damages as prayed for.
Petitioners appeared and filed contesting written statement by taking all the factual and legal pleas. The learned trial Court framed relevant issues, recorded pro and contra evidence of the parties and decree the suit on 23.02.2016 to the tune of Rs. 50,00,000/- against the petitioners whereas to the extent of defendants No. 4 to 8 suit was dismissed. The appeal of the petitioners was also dismissed by the learned appellate Court vide order dated 16.09.2019. Hence, this civil revision.
3. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.
4. The main controversy involves in this case revolves upon Issue Nos. 4 to 8 which are reproduced as under:-
"4. Whether the alleged prosecution ended in favour of the plaintiff? OPP
5. Whether the alleged prosecution was without reasonable and probable cause? OPP
6. Whether the alleged prosecution was initiated against the plaintiff oh the: basis of malice? OPP
7. Whether the alleged prosecution caused mental, physical reputation and financial loss to the plaintiff to the tune of Rs. 1,01,50000/-? OPP
8. Whether-the plaintiff is entitled to damage for malicious prosecution as prayed for? OPP"
Onus probandi of the above issues was placed upon the shoulders of Respondent No. 1/plaintiff. He as a sole witness appeared as FW-1 and stated that he was employee of Pakistan Army and got retirement. That brother of Muhammad Iqbal. namely Muhammad Boota was murdered oh 28/29-06-2000 and Ghulam Rasool was injured in the occurrence Muhammad Iqbal got registered FIR against him (plaintiff) and Hafiz Ghulam Rasool, Amjad Hussain, Asghar were also nominated on 10.10.2000. Hafiz Ghulam Rasool, Amjad Hussain and Asghar were acquitted. The plaintiff being employee of the Pakistan Army could not be arrested and was declared proclaimed offender. Later on, he was arrested, faced the trial and was also acquitted. That he has three daughters and one son but none of his children got education due to his incarceration. He became patient of Asthama, Had-he not been involved in the criminal case then he would have continued his job or obtained any alternative job in Civil Department, He bears the expenses/expenditures of the Advocate. He was acquitted in the said case due to deficient prove of his involvement in offence of murder of brother of the defendant. Due to this criminal case, he lost his reputation in the society. He spent huge amount during his being behind the bars and also suffered loss of reputation and faced mental and physical agony etc. In cross examination he deposed as under:
میں اپنے علاوہ کوئی دیگر گواہ پیش نہ کرنا چاہتاہوں۔
Further deposed that he was promoted as Havaldar in the year 1992 and got retirement in the year 2001. He received all the dues from the Government. He himself got retirement. He came to know in October, 2000 that he is nominated in the criminal case. Further deposed as under:
علم ہونے سے گرفتاری تک میں نے نہ پولیس سے رابطہ کیا اور نہ عدالت سے میں اس دوران پولیس سے چھپتا تھا میں آرمی میں ملازمت کرتا تھا ۔ جب میں گرفتار ہوا تب آرمی سے ریٹائر ہو چکا تھا ۔ میں ریٹائر منٹ کے بعد سول ملازمت کر تارہا ہوں ۔ جب میں گر فتار ہوا تب بھی میں سول ملازمت کر تا تھا ۔ میرے علم میں تھا مجھے مقدمہ میں نامزد کر دیا گیا ہے ۔ لیکن پھر بھی میں نے کسی سے کوئی رابطہ نہ کیا ۔ میں جب اشتہاری ہوا تھا آرمی میں تھا ۔۔۔۔۔۔ یہ درست ہے کہ میرے بری ہونے میں تاخیر میری وجہ سے ہوئی ہے ۔ دوران ریمانڈ پولیس نے میرے ساتھ بدتمیزی کی تھی ۔ جو میں نے اپنے عرضی دعوی میں لکھی ہے ۔ میں نے بد سلوکی کی شکایت کسی آفیسر سے نہ کی تھی کیونکہ میری کوئی سنتا ہی نہ تھا ۔ اس بد سلوکی کی شکایت ٹرائل کورٹ یاکسی مجسٹریٹ کورٹ میں تحریری نہ کی تھی ۔ میں جو دوران قید بیمار ہوا میں نے ٹرائل کورٹ کو کبھی کوئی درخواست نہ دی ۔ میں نے جیل میں جیل کے ڈاکٹر سے معائنہ کروایا تھا جیل میں معائنہ تحریری نہ ہو تا ہے ۔ میں نے مستقل دمہ کے مریض کے ثبوت کے طور پر کوئی دستاویز لف نہ کی ہے ۔۔۔۔ میں نے پولیس کی جانب سے جانبداری کرنے کی تفتیش تبدیل کروانے کے لیے کسی Forum میں درخواست نہ دی تھی ۔ کیونکہ میری کوئی سنتا نہ تھا ۔ میں نے تفتیش تبدیل کروانے کے لیے کسی عدالت سے رجوع بھی نہ کیا ۔ فوجداری مقدمہ کے دوران شہادت میرے خلاف پیش ہوئی تھی ۔۔۔۔ یہ درست ہے کہ پولیس نے مجھے گہنگار قرار دے کر عدالت میں تیتمہ چلان پیش کیا ۔ ۔۔۔ میرا ذہنی توازن بھی درست ہے ۔ میں اپنی پنشن خود وصول کر تاہوں ۔ میں اپنے گھر کے کام کاج اچھے طویقے سے کر رہا ہوں ۔ اس وقت میری عمر 55 سال کے قریب ہے ۔ میں عمر کے حساب سے میری صحت اللہ کے شکر سے ٹھیک ہے ۔ میری بیماری وغیرہ کا علاج C. M. H میں فری ہو تا ہے ۔ محمد اقبال نے قتل کی اطلاع پولیس کو دی تھی ۔ یہ درست ہے کہ قتل کے مقدمہ کی تفتیش کر کے اس میں بے گناہ کر نا یا گنہگار کر نا پولیس کا کام ہے ۔۔۔۔ اس مقدمہ کی وجہ سے مجھے Dismiss from service نہ کیا گیا تھا ۔ میں نے ریٹائر منٹ خود لی تھی ۔
The respondent/plaintiff did not produce any other independent witness in support of his assertions.
i) That Plaintiff was prosecuted by the Defendant;
ii) That the prosecution ended in favour of the Plaintiff;
iii) That the Defendant acted without reasonable and probable cause;
v) That the proceedings had interfered with the Plaintiffs liberty and had also affected his reputation and the Plaintiff had suffered damages.
Admittedly brother of the petitioner/defendant was murdered, as such an offence was occurred. Thus just and probable cause was in existence to lodge a criminal case. It was mandatory for the plaintiff to dislodge the above through corroborative and affirmative evidence but the Respondent No. 1/plaintiff failed to prove any non-existence of reasonable and probable cause. He admitted himself voluntarily getting retirement from the Pakistan Army. He has neither produced any independent witness nor any documentary evidence to prove his stance. Respondent No. 1/plaintiff under the law was duty bound to prove that the defendants acted without any reasonable and probable cause and the defendant was actuated by malice and the proceedings had interfered with the plaintiffs liberty and had also affected his reputation. No ingredients of malicious prosecution had been proved by Respondent No. 1/plaintiff. Respondent No. 1 was acquitted only on the ground that prosecution has failed to prove the case against the accused beyond any shadow of reasonable doubt. This controversy has been resolved by the Hon'ble Supreme Court of Pakistan in a case titled as Subedar (Retd.) Fazale Rahim vs. Rab Nawaz (1999 SCMR 700), the Hon'ble supreme Court of Pakistan has observed as under:
(i) That the plaintiff was prosecuted by the defendant;
(ii) That the prosecution ended in plaintiffs favour;
(iii) That the defendant acted without reasonable and probable cause;
(iv) That the defendant was actuated by malice;
(v) That the proceedings had interfered with plaintiffs liberty and had also affected her reputation; and finally
(vi) That the plaintiff had suffered damage."
Reliance is also placed on the case titled as Abdul Majeed Khan v. Tawseen Abdul Haleem & others (PLD 2012 SC 80) wherein it is held as under:
"21. 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 was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause; and (4) that it was malicious."
In another case titled as Muhammad Saeed vs. Jan Muhammad (2006 YLR 2201), this Court holds as under:
"5. In a suit for recovery of damages and compensation on the basis of malicious prosecution the plaintiff is under legal obligation to establish the following ingredients:
(a) He was prosecuted by the defendant in criminal charge.
(b) The prosecution has ended in his favour.
(c) The prosecution was malicious.
(d) The prosecution was without reasonable and probable cause.
(e) The proceedings had interfere with the plaintiffs liberty and had affected/ruined: the reputation and he has to suffer the mental and financial agony."
Reliance is also placed on the case titled as Ishtiaq Hussain Shah vs. Mushtaq Hussain Shah & Another (2019 MLD 314), it is held as under:
"9. ... The first two pf these conditions are required for the issue of maintainability whereas the remaining three are to be proved; furthermore, the said conditions must exist contemporaneously (rel: Muhammad Saeed, v. Jan Muhammad [2006 YLR, 2201 Lahore High Court]). These conditions are as follows:
i) That Plaintiff was prosecuted by the Defendant;
ii) That the prosecution ended in favour of the Plaintiff;
iii) That the Defendant acted without reasonable and probable cause;
iv) That the Defendant was actuated by malice (with improbable motive and not to further the ends of justice); and
v) That the proceedings had interfered with the Plaintiff s liberty and had also affected his reputation and the Plaintiff had suffered damages:"
Reliance is also placed on the case titled as Noor Ali vs. The Province of Sindh through Secretary to Govt. of Sindh, Home Department, Karachi & 3 others (PLD 2020 Sindh 700) wherein it has been held as under:
"23. .......... In order to claim damages for malicious prosecution it is well settled exposition of law that the plaintiff has to prove (i) that he was prosecuted by the defendant (ii) that the prosecution ended in the plaintiffs favour (iii) that the defendant acted without reasonable and probable cause and (iv) that the defendant was actuated by malice. All these elementary set of circumstances have to accumulate and if any of them is found lacking, the suit must be failed."
Further reliance is placed on the case titled as Allah Rakhio vs. Muhammad Usman & 2 others (2020 CLC 1331) wherein it is observed as under:
"6. ......... The ingredients for establishing the suit for damages on account malicious prosecution, are namely the plaintiff was prosecuted by the defendant; the prosecution ended in plaintiff s favour; the defendant acted without reasonable and probable cause; the defendant was actuated by malice; the proceedings had withheld plaintiffs liberty and had also affected his or her reputation and the plaintiff had suffered damages …..”
In another case titled as Arif Irfan vs. Sharif Peeran Ditta (2021 CLC 1008) wherein this Court held as under:
"5. ....... The first two of these conditions are required for the issue of maintainability whereas the remaining three are to be proved; furthermore, the said conditions must exist contempothneously. These conditions are as follows.
i) That Plaintiff was prosecuted by the Defendant;
ii) That the prosecution ended in favour of the Plaintiff;
iii) That the Defendant acted without reasonable and probable cause;
iv) That the Defendant was actuated by malice (with improbable motive and not to further the ends of justice); and
v) That the proceedings had interfered with the Plaintiffs, liberty and had also affected his reputation and the Plaintiff had suffered damages."
6. Moreover on the supplementary statement dated 07:07.2000 and 10.10.2001, the respondent was nominated as accused in this case and he was arrested in 2010. The other accused persons were acquitted and the plaintiff was declared as an absconder; Respondent No. 1 was acquitted on the basis of benefit of doubt. When an-accused is acquitted by the Court on the basis of benefit of doubts or prosecution's failure to-prove its case beyond a reasonable doubt, then recovery of damages on the basis of malicious prosecution are not available in the said case. Reliance is placed on the case titled as Tahirullah vs. Muhammad Rafiullah & another (2018 MLD 1202) wherein it is observed as under:
Reliance is also placed on the case titled as Noor Ali vs. The Province of Sindh through. Secretary to Govt. ofSindh, Home Department, Karachi & 3 others (PLD 2020 Sindh 700) wherein it has been held as under:
"24. .......... When a criminal Court acquits an accused, it passes an order by arriving at a definite conclusion that the criminal prosecution is falsely lodged and the accused is falsely, implicated or it may, by exteinding benefit of doubt, acquit an accused. In the latter case, the charge could not be considered as mala fide but fails due to some defective investigation by the police or for any other reason connected therewith ........"
Reliance is placed on the case titled as Allah Rakhio vs. Muhammad Usman & 2 others (2020 CLC 1331) wherein it is observed as under:
"6. ......... Patently, there is no question of prosecution of the applicant in the subject criminal case without reasonable or probable cause; the applicant's liberty was not allegedly curtailed by keeping him in custody; no finding regarding the ease being false having been rendered, but the learned Trial Court by extending benefit of doubt on prosecution's failure to prove its case beyond a reasonable doubt, had passed the acquittal judgment; and the-particulars of the damages have also not been shown in the plaint. And thus, most of the ingredients for a suit on account of malicious prosecution are not available in the case one in hand.."
"10.. The ratio of the said judgments, of which we approve, therefore, appears to be that, the mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the formerto the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."
Reliance is also placed on the case titled as Abdul Khaliq vs. Gul Faraz (PLD 2011 Peshawar 112) wherein it has been held as under:
"7 Mere acquittal is no ground for claiming damages for malicious prosecution. Acquittal may be for the reason of doubtful involvement of the accused and may be based on benefit of doubt. In such circumstances, no clear cut case could be made for damages…."
Reliance is also placed on the case titled as Ishtiaq Hussain Shah vs. Mushtdq Hussain Shah & Another (2019 MLD 314), it is held as under:
"19... Mere fact that a Plaintiff was prosecuted and acquitted will not suffice for the purposes of bringing an action for malicious prosecution so long as he also proves the absence of reasonable and probable cause and malice .........."
Reliance is also placed on the case titled as Noor Ali vs. The Province of Sihdh through Secretary to Govt. of Sindh, Home Department Karachi & 3 others (PLD 2020 Sindh 700) wherein it has been held as under:
"25. ....... Mere acquittal of the plaintiff in the aforesaid criminal case, by extending him benefit of doubt, is not sufficient by itself to establish a case for malicious prosecution against defendants 1 to 3..."
Reliance is also placed, on the case titled as Nawab Sher & another vs. Ismaeel (2020 MLD 14) wherein it has been held asunder:
25. ............ Mere fact that a Plaintiff was prosecuted and acquitted will not suffice for the purposes of. bringing an action for malicious prosecution so long as he also proves the absence of reasonable and probable cause and malice …."
Further reliance is placed on the case titled as Mst. Afroz Qureshi & another vs. Muhammad Ikram Siddiqui (1995 CLC735).
8. The respondent withdrew the case against the injured witness namely Ghulam Rasool. The learned trial Court dismissed the suit to the extent of police officials and the respondent did not challenge the said findings before appellate Court. The complainant/ Petitioner No. 1 lodged the FIR and during the investigation, the Investigating Officers declared the respondent as guilty of the offence and Submitted challan in the Court.
10. In view of above, this Civil Revision is allowed. Judgment & decree dated 23.02.2016 passed by the learned Civil Judge, Sialkot and dated 16.09.2019 passed by the learned Addl. District Judge, Sialkot are hereby set aside and suit of Respondent No. 1 is dismissed. No order as to costs.
(Y.A.)
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