1987 PLP 1632 (SCMR)

MIAN BURHANUDDIN KHAN, J‑‑This petition is directed against the judgment and decree passed by a learned Single Judge of the Sind High Court dated 29‑6‑1986 in Second Appeal No.3 of 1984.

2. The petitioner, being one of the Directors of Shalimar Silk Mills Limited had lodged a report, by telegram on 11‑10‑72 against respondent No.1 and some other workers of the petitioner's Mills and a case under sections 342, 427 and 14% P.P. C was registered against the respondents. Respondent No.1 alongwith four other workers of the said Mills were challaned in the Court of S.D.M. Karachi. The challan was placed before I V A . C . M. Karachi where the petitioner appeared and made a statement which was recorded by the learned Magistrate. It is stated the witnesses being workers of the Mills were not available since they had left their jobs and their whereabouts could not be ascertained. The learned trial Magistrate, in view of non‑availability of such witnesses, discharged respondent No.1 and other co‑accused under section 253, Cr.P.C. vide his order dated 11‑12‑1975. Respondent No.1 filed an application under Order XXXIII rule 1, C.P.C. in the Court of 11 Senior Civil Judge, Karachi claiming damages on account of alleged malicious prosecution against the petitioner on the basis of the order of discharge passed by the learned Magistrate. The learned Senior Civil Judge dismissed the suit by an ex parte order dated 8‑8‑1981. Respondent No.1 then filed an appeal which was heard by the learned 11 Additional District Judge, Karachi who dismissed the same vide his order dated 14‑4‑1984, Respondent No.1 thereafter filed Second Appeal in the Sind High Court which was allowed by a learned Single Judge vide the impugned judgment, setting aside the findings of the two Courts below and decreed the suit of respondent No.1 for Rs.50,000 with costs

3. Learned counsel for the petitioner Mr. Fakhruddin G. Ebrahim, Senior Advocate contended that the learned Single Judge had fallen into an error in decreeing the suit as respondent No.1 had failed to make out a case of malicious prosecution within the meaning of law inasmuch as the essential legal ingredients constituting malicious prosecution were lacking in the case; that the learned High Court Judge failed to appreciate that order of discharge does not amount to acquittal in the case and the complaint was not thrown out on merits and that it was the duty of the Court to procure the attendance of the other witnesses as it was a police case who had found, after the preliminary investigation that a prima facie case is made out against the respondents and if the witnesses were not traceable for one reason or the other, the petitioner, in law, could not be blamed for it and as such he could not, in law, be held guilty of malicious prosecution; that the order of discharge under section 253 Cr.P.C. did not amount to complete exoneration of respondent No.1 of the charges framed against him, and thus, in law entitles him to damages on account of the alleged malicious prosecution. He further contended that the learned Single Judge had erred in law in setting aside the concurrent findings of the two Courts below; that the impugned Judgment is not sustainable in law inasmuch as it is not based on any evidence; and lastly it was submitted that respondent No.1 had failed to prove within the meaning of law the damages claimed by him as per allegations in the plaint.

4. We have examined the contentions of the learned counsel and gone through the judgments of the Courts below. We are of the view that the points raised before us need consideration as they involve substantial questions of law. We grant leave. Security rupees two thousand. Execution of the decree is stayed till the final disposal of the appeal. Appeal shall be heard on the present record with liberty to the parties to file additional documents, if desired. M.I./A‑73/S. Leave granted.