Damages Against False Fir (Malicious Prosecution)

DAMAGES AGAINST FALSE FIR DAMAGES AGAINST FALSE FIR (MALICIOUS PROSECUTION) By Naeem Akhtar, Civil Judge and Judicial Magistrate, Karachi. In numerous criminal cases which are initiated through the filing of FIRs, a wide net is cast to implicate accused persons and their family member's particularly able-bodied males. This ordinarily is done to ensure that such able-bodied males are arrested and there is none left free to pursue their case in Court. After the trial in many cases, the accused who are nominated are acquitted. The accuser/complainant in most cases walks away without facing the consequences of a false accusation. Section 182, P.P.C. quite often is not used even if there is reasonable ground for initiating action under the said provision for prosecuting a person who has filed a false FIR. The societal propensity towards false accusation in FIRs can potentially be curbed through civil suits for malicious prosecution (Suit for recovery of damages). WHAT IS MALICIOUS PROSECUTION? Black's Law Dictionary defines it as, "The institution of a criminal or civil proceeding for an improper purpose and without probable cause." Ballentine's Law Dictionary defines it as, "The institution of any action or proceeding, either civil or criminal, against another maliciously and without probable cause". In the case of Muhammad Yousaf v. Abdul Qayyum, The august Supreme Court defines as, "Malicious prosecution is a tort which provides redress to those who have been prosecuted "without reasonable cause" and with "malice".1 In the case of Israr Ali v. Mst. Ahmedi Begum and others Hon'ble Sindh High Court held as, "A malicious prosecution may thus be defined as one that is begun in malice, without probable cause to believe it can succeed, and finally ends in failure".2 In the case of Ghulam Hussain and another v. Muhammad Rafique Hon'ble Lahore High Court Lahore, held as, "Said tort (malicious prosecution) balanced the competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution was an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge."3 THE ESSENTIAL ELEMENTS FOR MALICIOUS PROSECUTION As per Black's Law Dictionary "(1) the initiation or continuation of lawsuit (2) lack of probable cause for the lawsuit's initiation; (3) malice; and (4) favorable termination of the original lawsuit." The requisite elements for an action for malicious prosecution in England4 and in America5 are substantially the same. In both England and America, for a plaintiff to succeed in a claim for malicious prosecution, these essential ingredients- which are universal in their nature - must be present contemporaneously. In India also these very elements were affirmed by the Patna High Court in Nagendra Kumar v. Etwari Sahu6. As far as our own jurisdiction is concerned our superior Courts have enumerated similar conditions that have to exist for an action for malicious prosecution to be successful7. The conditions for malicious prosecution 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. In addition, an action for malicious prosecution is generally available as a remedy to one who has been wrongly involved / implicated in a criminal prosecution. However, an abuse of civil proceedings may also afford the right to a Respondent to bring an action for malicious prosecution8. The first requirement that is the initiation of the criminal prosecution. Black's Law Dictionary defines the term 'prosecution' as "a criminal proceeding in which an accused person is tried". In America, a proceeding must have been actually commenced against a person before he has a cause of action for wrongful or malicious prosecution9. It was laid out in the case of Rosario v. Amalgamated Ladies 'Garment Cutters' Union10 that: "One of the essential elements of an action for malicious prosecution is the prior commencement or continuance of an original criminal judicial proceeding." In the more recent case of Muhammad Yousaf v. Abdul Qayyum11, the august Supreme Court of Pakistan interestingly held that "malice is a state of mind and can be inferred from the circumstantial evidence". In the said case the complainant had not initially nominated the accused in the original FIR but added the latter's name in the FIR at a later point in time after having received information from a third-party, who, although perfectly able to attend Court and testify, was not produced or called as a witness by the complainant. WHAT IS "WITHOUT REASONABLE CAUSE AND WITH MALICE" The ingredient as to whether the initiation of the prosecution was with a reasonable and probable cause. In England, the term 'reasonable and probable cause', has been defined in the case of Hicks v. Faulkner12 wherein Hawkins J. described it as being; "an honest belief in the guilt of accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man to come to the conclusion that the person charged was probably guilty of crime imputed." The House of Lords approved this definition in Herniman v. Smith13. This definition has also been adopted by Jordan CJ of the Supreme Court of New South Wales in Mitchell v. John Heine and Sons Ltd.14. In the more recent English case titled Willers v. Joyce and another case Supreme Court of UK15 observed, by a majority view, that: "In order to have reasonable and probable cause, the defendant did not have to believe that the proceedings would succeed; it was enough that, on the material on which he acted, there was a proper case to lay before the court." Finally, the said term has been further defined in Salmond on the Law of Torts, 9th Edition16 as, "Having regard, however, to the facts known to the defendant, he must show a reasonable sound judgment and use reasonable care in determining whether there are sufficient grounds for the proceedings instituted by him, and any failure to exhibit such judgment or care will be imputed to him as a want of reasonable and probable cause." The Courts in India have also adopted this very definition referred to above17. Furthermore, in the case of Province of East Bengal and others v. S.M. Faruque and others18, the term reasonable and probable cause was defined as follows: "The law on the subject is well-settled. It is stated in Clerk and Lindsel on Torts, 9th Edition, p.662, that an individual should not be harassed by legal proceedings improperly instituted against him. It is the right of every one to put the law in motion if he does so with the honest intention of protecting his own or public interest. But it is an abuse of that right to proceed maliciously and without reasonable and probable cause for anticipating success. Hence the question is: What is meant by "reasonable and probable cause". "Reasonable and probable cause" means a genuine belief based on reasonable grounds that the proceedings are justified." The august Supreme Court has, in Niaz and others v. Abdul Sattar and others adopted the definition of the subject term as laid out in Hicks v. Faulkner19. The meaning of reasonable and probable cause has been explained in Walayat Khan v. Abdul Usman20 wherein it is stated that "it be borne in mind that if a person initiates criminal proceedings against another, in a matter which, from its very nature, he reasonably believes as a man of ordinary prudence, does not constitute a criminal offense and rests exclusively with a Civil Court to adjudicate upon; such action of his shall be deemed as prosecution without reasonable and probable cause and as such malicious in nature". It was further held in Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir21 that "probable cause means the bona fide prosecution rests on circumstances sufficiently strong and convincing to warrant a man of ordinary prudence to entertain an impression and belief that person accused was guilty of offense with which he was charged." A similar meaning was given in the case of Niaz and others v. Abdul Sattar and others22, wherein it was held that "'reasonable and probable cause' means that it is an honest belief in the guilt of accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent man to come to the conclusion that the person charged was probably guilty of crime imputed". LAW OF MALICIOUS PROSECUTION IN PAKISTAN The Courts in Pakistan have dealt with the issue of malicious prosecution, following the principles of the English common law. In Pakistan, there is no statute which deals with the law of malicious prosecution in particular; courts in our jurisdiction in the past have dealt with the cases of malicious prosecution according to the standards set by the Courts in England. It was observed in Muhammad Yousaf v. Ghayyur Hussain Shah (1993 SCMR 1185)23 that "there is no statutory law in the field governing the cases of malicious prosecution and empowering the Courts to award damages... in the determination of such disputes principles of English common law are followed." Under common law, "the plaintiff must prove that there was a prosecution without reasonable and probable cause, initiated by malice and the case was resolved in plaintiffs favor. It is also necessary to prove that damage was suffered as a result of the prosecution." (Vivienne Harpwod, Principles of Tort Law, 3rd Edition, Page: 332). These ingredients were recognized in Marine Management v. Government (PLD 2000 Karachi 215)24. The mere lodging of an FIR creates a public perception adverse to the reputation of the accused. Where the FIR is proved either to be false or to have been lodged without reasonable and probable cause, the circumstances of any given case may be sufficient to show that the lodging of the criminal case was malicious. For instance, in certain cases a prior enmity or a family dispute or differences between the families of two spouses can lead to the lodging of a criminal case and initiation of a prosecution based on allegations of a factual nature which are motivated by the aforesaid circumstances rather than a truthful assertion of fact to bring an accused to book through the criminal legal process. It is further pertinent to mentioned that if FIR was found false during the course of investigation it may be suggested by the investigating officer / agency to be disposed of under "B" (bogus) class, if same approved by the concerned court of law then section 182, P.P.C. quite often is not used even if there is reasonable ground for initiating action under the said provision for prosecuting a person who has filed a false FIR. In the case of Muhammad Bashir v. S.H.O., Okara Cantt and others25, august Supreme Court of Pakistan settled that; " the check against lodging of false FIRs. was not refusal to record such FIRs, but punishment of such informants under section 182, P.P.C. etc. which should be, if enforced, a fairly deterrent against misuse of the provisions of section 154, Cr.P.C". In another reported case of Umer Hayat v. I.G., Islamabad and others,26 Hon'ble Islamabad High Court was held as "In case, if it appears that false accusations have been levelled in FIR, action in accordance with law be taken by reporting the matter to the concerned Magistrate under section 182, P.P.C". There is no denial of the fact that if a Magistrate, on finalization of a criminal trial, comes to the conclusion that accusation/charge, against an accused was false, frivolous or vexatious, then he, in addition to an order of acquittal of an accused, may ask the complainant of the case to pay compensation, upto Rs.25,000/- to such an accused under the provision of 250 P.P.C. In the Case of Akhtar Iqbal v. Muhammad Ali27, Hon'ble Supreme Court directed complainant to pay Rs. 25,000 as compensation to respondents for launching frivolous and vexatious prosecution and for wasting time of the Court. In another case of Noor Muhammad v. State28, the august Supreme Court held that; "Sufficient safeguard is provided under section 250, Cr.P.C. to accused against a false and frivolous accusation by complainant". If we examined, in detail, the question of eradication of the elements of false evidence and perjury from the judicial system and the ways and means to achieve this object then we must make a glance over the history of mankind in the perspective of Islamic principles. Since the creation of mankind, in every society, large or small, rich or poor, advanced or backward, there have always been disputes among the individuals requiring determination and decision by a third person after weighing and examining the claims of the contesting parties. This exercise on the part of the third person is legitimately considered to be the most elementary stage of administration of justice. This concept of administration of justice, of which evidence is an integral part, has all along been intimately connected with the social aspect of human life which, by a process of evolution, has now developed into the present day intricate and complex system of administration of civil and criminal justice requiring equally clear cut and exhaustive Rules of Evidence. We find a reference to the rules of evidence in the Holy Quran also, which were followed by the ancient generations, e.g., in Sura-e-Yusaf, it has been stated that when Hazrat Yusaf was falsely accused by Zulekha of immodest conduct and no ocular evidence was available, except the contradictory assertions of the two parties, it was suggested that Yusaf's shirt may be examined and if it was found to be torn in front Zulekha's allegation was correct but in case the shirt was torn from the back, Yusaf was innocent and Zulekha was guilty of false accusation. The elementary rules of evidence were also followed in the early Roman Society, the pre-Islamic Society of Arabia, Persia, India etc. The sole object of production of evidence in the Law Courts has all along been to enable the Judges to do justice after correct appreciation of the pros and cons of the matter in dispute before them by holding the scale of evaluation evenly between the contesting parties. It would be difficult, if not impossible, for a Court to do so unless and until the evidence produced before it is true, untainted and free from all kinds of bias. In Islam every great stress has been laid on the importance of true evidence. Addressing the believers, Allah the Almighty says:-- "And cover not truth with false-hood-Nor conceal the Truth, when you know"(2/42). "And thus have We made of you an Ummat justly balanced that you might be witnesses over the nations, and the apostle a witness over yourselves"(2/143). "Conceal not evidence; For whoever conceals it; his heart is tainted with sin. And Allah know the all that you do"(2/283). "O'ye who believe; Stand out firmly for justice, as witnesses to Allah; even as against yourself or your parents or your kin; and whether it be (against) rich or poor; for Allah can best protect both"(4/135) "Whenever you speak, speak justly, even if a near relative is concerned; and fulfil the Covenant of Allah; thus doth He command you; That you may remember" (6/152). LIMITATION FOR FILING A SUIT FOR COMPENSATION As per The first schedule Under Article 23 of the Limitation Act, 1908, a suit for compensation for malicious prosecution can be instituted within one year when the Plaintiff is acquitted or the prosecution is otherwise terminated. According to section 12(1) of the Limitation Act, 1908, while computing period of limitation prescribed for a suit, the day on which the judgment complained of was pronounced and the time requisite for obtaining a certified copy of the order/judgment/decree shall be excluded.