P L D 2008 Peshawar 21 (PLP)

MUHAMMAD ALAM KHAN, J.

The petitioner has called in question the judgment and decree of the trial court in suit No.482/1, through which the suit of the petitioner for damages instituted on the ground of malicious prosecution was dismissed on 26-5-2006, by Mr. Abid Sarwar Khan, Civil Judge-III, Kohat. The petitioner has also called in question the judgment and decree of Mr. Aamir Nazir Bhatti, Additional District Judge, I, Kohat in Civil Appeal No.28/13 of 2006, vide which the appeal of the petitioner was dismissed and the judgment and decree of the trial Court was upheld.

2. Briefly stated the facts of the case are that petitioner Juma Gul filed a suit for damages against Yaqeen Khan, stating therein that the respondent had lodged a false and frivolous F.I.R. in the year 1995 under section 337(1) of the Pakistan Penal Code, upon which the prosecution was launched and the local police after completing the investigation, submitted challan to the court and the prosecution started. In the meantime, as stated by the petitioner, the respondent submitted an application for withdrawal of the case. Consequently, the application was allowed. The complainant Yaqeen Khan was allowed to withdraw the case and on the basis of the withdrawal, the accused-petitioner was acquitted.

3. It was submitted that as the prosecution was mala fide, malicious and for ulterior motives, so the petitioner was entitled to the grant of damages of Rs.5,00,000, recoverable from the respondent. The learned{ trial Court after calling for the written statement and recording evidence pro and contra dismissed the suit of the plaintiff-petitioner, vide judgment and decree dated 26-5-2006. The petitioner then filed civil appeal No.28/13 of 2006, which came for hearing before Mr. Aamir Nazir Bhatti, Additional District Judge-I, Kohat, who after hearing, the learned counsel for the parties and perusing the data available on the record, dismissed the appeal, vide judgment and decree dated 8-12-2006. The petitioner has now come up in revision to this court.

4. The petitioner was heard in support of the petition, who reiterated the same stance taken before the subordinate court, that the prosecution of the petitioner at the hands of the respondent was based on malice, ill-will and for ulterior motives, thus he was entitled to the recovery of Rs.5,00,000 as damages from the respondent.

5. I have given my deep thoughts to the facts and circumstances of the case as well as the legal position involved. The factual aspect of the case is that an F.I.R. No.269, under section 337-F, P.P.C. dated 25-5-1995, in Police Station City, Kohat, was lodged by Yaqeen Khan son of Nasim Khan respondent in which the present petitioner was charged. On this report the case was registered by the local police and after completion of investigation complete challan was submitted to the court and the court started recording of evidence, but in the meantime an application was submitted by the respondent to the court seeking permission to withdraw from the prosecution on the ground of compromise. Perusal of the F.I.R. dated 25-5-1995, reveals that Yaqeen Khan son of Nasim Khan aged about 50/51 years had lodged this F.I.R. giving the detail version of the occurrence. In this case he sustained injures. He was medically examined by the doctor and the prosecution started producing its evidence, which in the meantime resulted in acquittal of the petitioner, based on the statement of the respondent Yaqeen Khan, who recorded his statement before the court, copy available at page 26 of the file, which is as follows:-- "I have lodged F.I.R. in this case against accused Juma Gul for causing injury to me. I have forgiven the accused in the name of Allah Almighty and do not want to pursue this case any more. Therefore, it is requested that the accused may be acquitted. In this respect my application is Exh.PA, which correctly bears my thumb impression."

6. So admittedly, the acquittal of the petitioner is based on the withdrawal of the respondent from the prosecution launched against the petitioner. Even otherwise, if the acquittal or discharge is on merit, that will not confer on the complainant a right to sue for damages on the basis of malicious prosecution. The proof in civil cases as well as in criminal cases is different and while suing for malicious prosecution, the complainant has to prove independently the grudge, malice and ulterior motives on the part of the complainant, which is lacking in this case. Even discharge or acquittal on the basis of merits of the case will not entitle the accused to claim damages for malicious prosecution unless and until the malice is proved. In the case of Khawaja Muhammad Naseem v. Shafique Rehman 1996 CLC 1460, it was held that unless and until there is independent motive falsely implicating the accused in a criminal case and the intention of the complainant is based on malice, personal grudge and ulterior motives, mere acquittal of the accused or discharge will not confer any right for damages on the accused. The same proposition of law has been repeated enunciated in Qurban Ali v. Sanjar Khan PLD 1963 (W.P.) Karachi 155 and Sadaruzzaman v. The State 1990 SCMR 1277.

7. In this case, this is an admitted position discernable from the record that complainant received injuries at the hands of the accused. He was medically examined and ultimately the accused-petitioner was acquitted on the basis of compromise so it will not make the petitioner entitled to the damages claimed by him. The trial court as well as the court of appeal has correctly appreciated the evidence and the data available on the record. In view of the facts and circumstances of the case, narrated above, there is no force in this revision petition, which is hereby dismissed with no orders as to costs. H.B.T./197/P?????????????????????????????????????????????????????????????????????????????????????? Revision dismisse