2019 PLP 384 (MLD)

IJAZ ANWAR, J.

Through this appeal under Section 96 of the Civil Procedure Code, 1908, the appellants have assailed the judgment and decree dated 29.01.2016, passed by learned Civil Judge-VIII, D.I.Khan, whereby their suit for recovery of Rs.2,50,00,000/- as damages was dismissed.

2. The brief facts of the case are that the appellants filed a suit against the respondent for recovery of Rs.2,50,00,000/- as damages on account of malicious prosecution, defamation, mental torture, harassment, monetary and business loss. The respondent was summoned, who appeared and contested the suit by filing his written statement. From the pleadings of the parties, the learned Civil Judge-VIII, D.I.Khan framed issues, recorded evidence of the parties and after hearing arguments, dismissed the suit vide judgment and decree dated 29.01.2016, hence, this appeal.

3. Learned counsel for the appellants argued that initially a complaint was lodged against the appellants before the local police and after inquiry under Section 156(3), Cr.P.C. the same was filed on 13.3.2010. Subsequently, a frivolous application dated 27.3.2010 was filed before the learned Justice of Peace under Section 22-A(6), Cr.P.C. which was allowed vide order dated 13.4.2010 and an FIR was registered against the appellants. Learned counsel next argued that the appellants were acquitted by trial Court vide order dated 28.5.2012 holding the criminal case as false and fictitious one. Again the respondent went in appeal against acquittal of the appellants and this Court too dismissed the appeal holding that the prosecution was biased and mala fide. Learned counsel further argued that the suit of the appellants was dismissed on such grounds which were irrelevant and not fatal for malicious prosecution. He further argued that the learned trial Court fell into error by holding that the actuated damages sustained by the appellants have not been established through reliable evidence. He placed reliance on 2015 MLD 601 and 2013 SCMR 507.

4. Learned counsel representing the respondent argued that the appellants have failed to substantiate their claim regarding mental torture or loss of reputation through cogent evidence. He further argued that the case property which was alleged to have been recovered from the appellants was returned to the respondent and as such it amounts to admission on their part, therefore, it was rightly taken as a ground for denial of relief to the appellants. Learned counsel further argued that only attorney of the appellants appeared in support of their case and no other supportive evidence has been produced, as such, there was no case and the learned trial Court has rightly dismissed the same.

5. Arguments heard and record perused.

6. In order to maintain suit for malicious prosecution, the Superior Courts have set certain guiding and mandatory ingredients. Following are the elements of tests for 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. That the defendant was actuated by malice; v. That the proceedings had interfered with plaintiff's liberty and has also affected their reputation, and vi. That the plaintiff had suffered damages. In the light of above set principles now it is to be seen whether the case of the appellants comes within the above parameters.

7. The record transpired that initially a complaint Ex.PW-2/3 was lodged to the local police by the respondent wherein it was claimed that from shrine of Jumma Sharif the appellants have committed theft of certain articles. On inquiry under Section 156(3), Cr.P.C. it was filed without further proceedings by the learned Judicial Magistrate holding that the matter between the parties is of civil nature. Copy of the order of learned Judicial Magistrate is Ex.PW-2/6. Subsequently, on the application of respondent under Section 22-A(6), Cr.P.C. the learned Justice of Peace ordered registration of criminal case under Section 379, P.P.C. against the appellants. Accordingly, an FIR No.81 dated 14.4.2010 under Sections 379/411, P.P.C. was registered against the appellants at Police Station Gomal University, D.I. Khan. Copy of the FIR has been exhibited as Ex.PW-2/10. The appellants were arrested and subsequently were released on bail vide orders dated 15.4.2010 and 19.4.2010 respectively. The record further transpired that the respondent moved an application for cancellation of their bail which was dismissed by the learned Additional Sessions Judge vide order dated 10.5.2010, copy of which has also been exhibited as Ex.PW-2/16. The appellants then faced a protracted trial before the Judicial Magistrate-II, D.I.Khan. The challan was submitted on 12.7.2010 and vide order dated 28.5.2012, the appellants were acquitted of the charges. In the order of acquittal certain observations were recorded and it is relevant to reproduce the same which are as under:- "The upshot of the above discussion is that inquiry conducted under Section 156(3), Cr.P.C. on the same facts has already been filed which has attained finality and prosecution has miserably failed to prove its case and the instant case is based on false, frivolous and vexatious accusation having no footing. Therefore, the accused present before the Court namely Muhammad Hanif Sultan is hereby acquitted from the charges levelled against him. While other co-accused (who are not present before the Court today) are also hereby acquitted in absentia from charges levelled against them. Their sureties are also absolved from their liabilities. Case property (If any) be kept intact till the expiry of period of appeal/revision whereafter the same be dealt with according to law."

8. The respondent questioned the order of acquittal by filing criminal appeal before this Court and vide order dated 12.10.2012 his appeal was dismissed with the following observations:-- "that the parties were brothers inter se and that the dispute is that of "Gaddi Nasheeni" between them and in this respect they were involved in civil and criminal litigations. As such for all intents and purposes and in view of the civil litigations going on between the appellant/complainant and the accused/respondents, the purpose of lodging of the FIR was none other but an arm-twisting tactic on the part of the appellant to browbeat the accused/respondents. Thus the learned trial Court has rightly acquitted the accused/respondents."

9. On the record there is judgment of the learned Civil Judge dated 22.12.2012, whereby the suit of the respondent for Sajjada Nasheeni of the shrine Jumma Sharif was also dismissed. From the evidence produced and the documents brought on record it is established that the dispute between the parties was not regarding the theft of certain articles from shrine Jumma Sharif, but in fact it was on the position of Sajjada Nasheeni. The complaint/prosecution initiated against the appellants culminated in their acquittal with clear observations of the Courts that the registration of FIR was the result of extreme mala fide and malice. The appellants faced agonies of trial, they were arrested by the local police and their precious time was spent in facing criminal case. The criminal trial proceeded for about two years and the appellants have incurred financial expenditure as well. Similarly, the respondent and the appellants are brothers inter se and are children of a respectable Ghulam Baho (late) who was the Sajjada Nasheen of Jumma Sharif. To this effect they specifically stated in the plaint and evidence that such arrest, humiliation and facing criminal trial has affected their reputation. Thus looking from any angle this Court finds that the criminal case registered against the appellants was actuated by malice and concluded in their acquittal.

10. Now I will refer to the judgment of trial Court and to the grounds whereby the suit of the appellants was dismissed. The learned trial Court has referred to the legal notice available on the record and held that without service of legal notice a suit for malicious prosecution cannot proceed. The appellants have duly referred in Para-5 of the plaint that the respondent was served through a legal notice. The appellants have produced Registry Clerk, GPO, D.I.Khan to prove that the legal notice was duly sent through registered letter acknowledgment due and this was sufficient compliance regarding the service of legal notice. Service of mandatory legal notice before filing suit, is mandatory only for suits under the Defamation Ordinance, 2002 and not mandatory in suits of alike nature.

11. The second point which prevailed with the learned Civil Judge was that prosecuting the appellants was not without reasonable and probable cause and the only evidence that was used against the appellants is that the case property was returned to the respondent and the appellants have not challenged the same. Where the appellants were acquitted honourably with positive finding in their favour that they were prosecuted with mala fide intention, the main cause of their prosecution was established to be rivalry over Sajada Nasheeni, as such the trial Court erred in dismissing the suit. Similarly, the trial Court held that no evidence was produced to prove the mala fide of respondent and that they have failed to establish the actual damages caused to them.

12. In the case of "Muhammad Sharif v. Nawab Din" PLD 1957 Leah. 283, it was held that:- "Some damage must necessarily have been caused. If we are to assess the damages only if the exact amount is proved, no damages can ever be decreed damages have so many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of a suit." Thus as rightly held by the Hon'ble Lahore High Court that loss of reputation cannot be determined in terms of money nor it is necessary to produce general public in whose estimation their reputation was downgraded. Even otherwise, where the appellants have claimed certain amount as damages the Court is empowered to award general damages keeping in view the facts and circumstances of the case.

13. Similarly, in the case of "Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance" 2013 SCMR 507 the apex Court held that "General damages, claimed for damages for mental torture, agony, defamation and financial loss were to be assessed following the "Rule of Thumb" and said exercise fell in the discretionary jurisdiction of the Court, which had to decide it in the facts and circumstances of each case." Likewise in the case of "Abdul Majeed Khan v. Tawseen Abdul Haleem" 2012 CLD 6 Supreme Court, it is held that "Apparently damages were not based on any account; neither any breakup had been given nor any explanation was offered in that behalf-- Plaintiff had failed to quantify special damages as such he was not entitled for the same

Plaintiff had suffered mentally due to illegal acts of defendant, which were ultimately set aside by competent forum

Plaintiff was entitled for general damages under the rule of thumb." This view was repeatedly followed by the High Courts. Reference can be made to the case of "Dr. Muhammad Raza Zaidi v. Glaxo Wellcome Pakistan Limited, Karachi" 2018 MLD 1268 Karachi, "Mubashar Pesh Iman v. Federation of Pakistan" 2016 PTD 510 Karachi, "Government of Khyber Pakhtunkhwa v. Syed Jaffar Shah" and 2016 MLD 223 Peshawar.

14. The trial Court thus even in the absence of any method to determine a fair assessment of damage, was still under obligation to decide an amount of money as compensation keeping in view facts and circumstance placed on record by the appellants.

15. The learned trial Court has also decided the issue of limitation against the appellants, however, it has not been discussed how the suit was barred by time, because appeal against the acquittal of the appellants was dismissed vide order dated 12.10.2012 while the suit against the respondent was filed on 22.02.2013, well within one year. Looking from any angle I find that the learned trial Court has not addressed the point of law involved in the case nor the principles set for a suit for malicious prosecution.

16. Thus, this Court while going through the evidence led by the parties and the agonies of the appellants in facing the trial would assess and allow general damages under the Rule of Thumb and grant a decree to the tune of Rs.10,00,000/- (Rupees ten lac) to the appellants.

17. For the reasons stated above, this appeal is allowed, the impugned judgment and decree dated 29.01.2016, passed by learned Civil Judge-VIII, D.I.Khan is set aside anal the suit of the appellants is decreed to the extent of general damages to the tune of Rs.10,00,000/- (Rupees ten lac) to be recovered from the respondent. ZC/354/P Appeal allowed.