2000 PLP 1040 (CLC)

The brief facts given rise to this revision petition are that respondent filed a suit for damages against the petitioner amounting to Rs.24,800 on account of malicious prosecution, initiated against the respondent. The petitioner filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the following issues were framed: ‑‑ Issues: . The trial Court decreed the suit vide judgment and decree dated 13‑12‑1986, the petitioner being aggrieved, filed appeal before the learned District Judge, who dismissed the appeal vide judgment and decree dated 2‑9‑1987; hence the present revision petition.

2. The learned counsel for the petitioner contended that the suit filed by respondent was not maintainable as the principle laid down by the Privy Council in Muhammad Amin's case (PLD 1947 PC 951; that there is no measurement for assessing the damages, proved on record nor has any reliable proof been furnished with regard even to the amount claimed; that petitioner filed Writ Petition No.5470 of 1981 which was dismissed by‑ this Court vide order dated 8‑2‑1982; that order dated 8‑2‑1982 clearly reveals that counsel of petitioner and S.H.O. appeared; that the petitioner filed complaint against the petitioner which was also dismissed without issuing notice to the respondent; that both the Courts below misread the record and decided the case against the petitioner without adverting to the evidence and plaint filed by the respondent; para. 2 of the plaint clearly reveals that the petitioner filed writ petition against respondent which was dismissed without issuing notice t6 the respondent .

3. Learned counsel for respondent contended that both the Courts below have given concurrent findings of fact against the petitioner after appreciation of evidence; that petitioner's counsel failed to point out any piece of evidence which was misread by both the Courts below. He summed up his arguments that this Court has no jurisdiction to disturb the concurrent findings of facts unless and until the same is the result of misreading and non‑reading of record. He relied upon PLD 1994 SC 291 and PLD 1994 SC

162. In rebuttal, the petitioner's counsel stated that judgments cited by respondent's counsel is distinguished on facts and law as both the Courts below have decided the case against the petitioner in violation of the law laid down by the Superior Courts and misread the record.

4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that petitioner filed Writ Petition No.5470 of 1981 with the prayer that a criminal case may .he registered against the respondent and other under section 302/34, P.P.C. on the ground that respondent has allegedly committed the murder of Shahbaz minor son of the petitioner. The writ petition was dismissed vide order dated 8‑2‑1982 after hearing the learned counsel for the petitioner and S.H.O. Mustafabad. The contents of para. 2 reveal that writ petition was dismissed after notice to the respondent; contents of this para. is contrary to the order of this Court, dated 8‑2‑1982 in the aforesaid writ petition as mentioned above. The judgments of both the Courts below heavily relied upon para. 2 of the plaint and judgment of this Court in the aforesaid writ petition. It is pertinent to mention here that no formal F.I.R. was recorded against the respondent as is evident from the order of this Court, dated 8‑2‑1982 passed in Writ Petition No.5470 of 1981 meaning thereby the Police found respondent innocent in the ‑investigation. Subsequently, petitioner filed complaint against respondent before the competent Court who also dismissed the same and notice was issued to respondent in the complaint case. Respondent filed suit for damages against the petitioner which was decreed and the appeal was also dismissed. The Honourable Supreme Court has laid down the following ingredients in Muhammad Akram's case PLD 1990 SC 28 to file suit for damages on the basis of malicious prosecution: (i) That the plaintiff was prosecuted by the defendant; (ii) That the prosecution ended in plaintiff's favour; (iii) That the defendant acted without reasonable and probable cause. (iv) When the defendant was actuated by malice. (v) That the proceedings had interfered with plaintiff's liberty and had also affected her reputation; and finally; (vi)That the plaintiff had suffered damage Mere reading of the aforesaid ingredients described by the Honourable Supreme Court, the case of the respondent does not fall within the pare‑meter prescribed by the Honourable Supreme Court but both the Courts below decided the same in violation of the law laid down by the Honourable Supreme Court. In this case so far as the first two ingredients are concerned, respondent/plaintiff has proved that he was prosecuted on a criminal charge and the prosecution terminated in his favour without recording formal F.I.R. and complaint was dismissed without issuing notice to respondent. Court has to consider whether the prosecution was malicious and whether the prosecution was without unreasonable and probable cause. The question of reasonable and probable cause for the prosecution is an independent question and should not be recorded as finally answered in respondent's favour on grounds that the conviction was not secured in the Court. Mere judgment of acquittal in a criminal case only decides that accused has not been proved guilty of the offences with which he had been charged: That the learned Magistrate has held charge against the respondent to be groundless but he has not given any cogent reasons as; to why the charge is false and vexatious. It appears that in his order he was influenced by the act that the petitioner failed to produce the evidence before him. Therefore, this can be ground for giving benefit of doubt to the accused but will not be sufficient for determining the proceedings as malicious. The question is not whether the respondent committed the offence or whether the petitioner invented the offence against the‑respondent, but the question is whether the respondent has proved that the petitioner invented and instigated the whole proceedings for prosecution. Both the Courts below have decreed the suit of the respondent in violation of the principle laid down by the I Honourable Supreme Court in the following judgments:‑ PLD 1990 SC 28, PLD 1994 SC 476 and 1999 SCMR

700. In case para. 2 of the plaint and order of this Court, dated 8‑2‑1982 passed in Writ Petition No.5470 of 1981 are put in juxtaposition, then it is crystal clear that both the Courts below decided the case without applying their mind and decided the case on surmises and conjuncture. Even otherwise the respondent failed to prove on record power of attorney of his counsel who was engaged by him and defended the respondent in the aforesaid writ petition. The judgments cited by learned counsel for the parties are not attracted to resolve the present controversy between the parties. The Honourable Supreme Court in Muhammad Akram's case PLD 1990 SC 28 observed qua the judgment cited by petitioner's counsel in the following terms:‑‑ "The Privy Councils' judgment showing itself .a conflict of trend for some time in the judgment in a country where 'the action for damages for malicious prosecution is part of common law of England is no more an authority for us under our own Constitutional legal setup:" Similarly, judgments cited by respondent's counsel are distinguished on facts and law as the law laid down by the superior Courts in Kanwal Nain's case PLD 1983 SC 53 to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse with grave injustice would result therefrom. Both the Courts below have committed material irregularity. This Court has ample jurisdiction to disturb the findings of fact in such situation as the principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case 1988 SCMR

851. Judgments of both the Courts below are result of misreading or non reading of the record and the respondent failed to prove all the ingredients as mentioned by the Honourable Supreme Court in the aforesaid judgments. E Therefore, judgments of both the Courts below are not sustainable in the eyes of law. In view of what has been discussed above, the revision petition is accepted with no order as to costs. Q.M.H./M.A.K./S‑15/L Revision allowed.