P L D 2015 Sindh 83 (PLP)

ABDUL RASOOL MEMON, J.

This revision application calls in question the legality of the Additional District Judge, Mithi's judgment dated 24-1-2011 allowing Civil Appeal No.40 of 2011 against the judgment and decree dated 27-8-2011 and 14-9-2011 respectively passed by Civil Judge-I Mithi whereby Third class Suit No.7 of 2011 for damages/defamation of Rs.50,000 filed by respondent/plaintiff had been dismissed.

2. The background of the case is that applicant/defendant had moved an application to the District and Sessions Judge/Director Human Rights Tharparkar at Mithi against the respondent/plaintiff alleging therein against him and his family members to have been selling contraband narcotics in the vicinity; said application was sent to DPO for legal action, which was enquired by DSP and not proved. The respondent/plaintiff feeling it his insult and character assassination in the eyes of his community, filed third class suit against the applicant/defendant claiming damages of Rs.15,000 as fare of taxi hired for attending enquiry proceedings, Rs.10,000 for mental torture and Rs.25,000 as damages to his reputation total Rs.50,000.

3. The applicant/defendant contested the suit and in his written statement denied the claim of respondent/plaintiff; though by consent of both the parties one Dr. Jhamandas was appointed as mediator but with no result, ultimately, after recording evidence so far brought on record by both the parties learned Civil Judge-I Tharparkar at Mithi by holding the suit maintainable before Civil Court, dismissed it being claim not substantiated by the respondent/plaintiff vide his judgment dated 27-8-2011 which was assailed in Civil Appeal No.40 of 2011. The learned Additional District Judge through impugned judgment set aside the judgment of the trial Court and decreed the suit of the respondent/plaintiff to the extent of Rs.35,000 as damages for mental torture and injuring his reputation.

4. Before proceeding of the matter parties' counsel were called upon to satisfy the Court on two points whether Civil Judge properly exercised his jurisdiction and the burden of proof of issues Nos.2 and 3 was rightly put on the shoulder of the plaintiff. For sake of convenience issues Nos.2 and 3 are reproduced as under:- "

2. Whether defendant levelled false and baseless allegations against the plaintiff?

3. Whether the DPO/SPO concerned declared allegations as false, bogus and baseless after conducting inquiry?"

5. Learned counsel for the applicant Mir Shahzad Ahmed Talpur has mainly hit the impugned judgment on the point of maintainability of suit. According to him the jurisdiction of the suit for defamation has been vested to District Judge under Defamation Ordinance, 2002, as such, suit was not entertainable before Civil Court being barred by law; that respondent/plaintiff could not claim damages for malicious prosecution; that enquiry was not properly conducted by DPO nor opportunity was provided to applicant/defendant to produce evidence; that the character certificates produced by the respondent/plaintiff are managed one; that applicant was not heard before passing the impugned judgment; that no independent witness was examined by the respondent/plaintiff and he was duty bound to prove his case before the trial Court through independent and trustworthy evidence, but failed to discharge his duty and learned trial Court has rightly held him responsible for proving issues Nos.2 and

3. In support of his contentions he has relied upon the following case laws. (1) Malik GUL MOHAMMAD AWAN v. FEDERATION OF PAKISTAN (2013 SCMR 507) (2) FEDERATION OF PAKISTAN and 2 others v. Major (Retd.) MUHAMMAD SABIR KHAN (PLD 1991 SC 476) (3) PAKISTAN IIERALD PUBLICATIONS (PVT.) LTD. and 2 others v. KARACHI BUILDING CONTROL AUTHORITY (2012 CLD 453) (4) MUHAMMAD RAFIQ V. PAK-GULF LEASING COMPANY LIMITED (2007 CLC 239) (5) NAZIR AHMAD and another v. Haji NAZIR ALI and 3 others (2006 MLD 907) (6) SHAFAQAT-UR-REHMAN v. DAUD-UR-REHMAN and 11 others (PLD 2006 Peshawar 206) (7) DHUNJISHAH B. GHADIALY and others v. KARACHI PARSI COOPERATIVE HOUSING SOCIETY LTD. and others (2004 CLC 587) (8) UNIVERSITY OF KARACHI and another v. MUHAMMAD RAFIQUE and 4 others (1991 CLC 752) (9) Mst. AMNA v. NIZAMUDDIN and 3 others (1985 MLD 271) (10) SAID KHAN AND 12 others v. Mst. FOZIA PARVEEN and 3 OTHERS (1984 CLC 494)

6. Conversely, Mr. Inayat Hussain Shah has contended that respondent in his suit claimed damages on account of mental agony and torture due to filing of false application against him, thus, suit was rightly, entertained by the Civil Court. According to him the claim of the respondent/plaintiff does not fall within the purview of Defamation Ordinance, 2002 and even otherwise it does not impose bar on the jurisdiction of Civil Court in respect of suits of general damages. It is further contended that it is settled principle that aggrieved persons may choose any one of the remedies under the special law or general law. In support of his contentions he has relied upon the case reported as 2013 SCMR 507.

7. I have given my patience hearing to the arguments advanced at bar and have gone through the relevant laws, evidence adduced by the parties as well as citations relied upon by their counsel.

8. It is correctly argued that respondent/plaintiff could not claim damages on the basis of malicious prosecution. The principles for grant or refusal of damages with regard to malicious prosecution are laid down by the honorable Supreme Court of Pakistan in the case of NIAZ and others v. THE STATE (PLD 2006 SC 432) which reads as under:-- (i) That the plaintiff was prosecuted by the defendant. (ii) That the prosecution ended in plaintiff's failure. (iii) That the defendant acted without reasonable and probable cause. (iv) That the defendant was actuated by malice. (v) That the proceeding had inferred with plaintiff's liberty and had also affected her reputation and finally. (vi) That the plaintiff had suffered damages.

9. In this case it is admitted fact on record that respondent/plaintiff was not prosecuted in any Court of law by the applicant but the facts reflect that the applicant/defendant had made an application against the respondent/plaintiff on which an enquiry was conducted by DPO or SPO and the allegations made therein were not proved, thus, mere filing of the application would not amount to malicious prosecution and simple mention of words "malicious prosecution" in the title of the plaint would A not make the suit as not maintainable, in-as-much as in the body of the suit respondent/plaintiff has claimed general damages for mental torture, fare of taxi spent by him for attending the enquiry and damages to reputation, which could be claimed under the law of damages (Tort).

10. So far application of Defamation Ordinance, 2002 is concerned, this Court in a case of MOHAMMAD FAROOQ MARFANI v. ABDUL QADIR TAWAKAL others (PLD 2004 Karachi 595) has already defined/summarized following necessary ingredients for constituting defamation:-- (a) The allegations levelled against the plaintiff should be false, baseless and unfounded; (b) The wordings used and the allegations levelled, in on the face of it, should have been defamatory derogatory nature; (c) Such allegations should have been published in widely circulated newspapers or spoken in a large gathering; (d) The said publications made or wordings used should have been with malice without any reasonable excuse and justification; (e) The allegations should have been directly attributed to the plaintiff by specifically mentioning his name;

11. The main ingredient constituting defamation is publication of defamatory statement in widely circulated newspaper or spoken in a large gathering which is not available in the present case as admittedly neither any publication was made in any newspaper nor at any open or public B place, defamation is alleged, as such, it could not be said if case falls under Defamation Ordinance on the basis of filing of false application but the claim of respondent/plaintiff simply relates to general damages for which no bar is imposed under Defamation Ordinance, 2002 for filing suit under general civil law and thus the learned trial Court has rightly decided the issue No.1 about jurisdiction.

12. So far finding of trial Court on issues Nos.2 and 3 are concerned, in a case reported as PLD 1996 SC 737 it is held that suit for damages can only be decreed when averment in the plaint on each score is separately proved through evidence. The two issues appear to have been framed from the averments of plaint. It is provided under Article 117 of Qanun-e-Shahadat Order, 1984 that burden proof lays upon the person who approaches the Court. I am supported on this point by law laid down by apex Court in a case reported in 2010 SCMR 2030. In the light of the above legal position the learned trial Court has rightly held that the burden to prove these issues lay upon the plaintiff bin erroneously has observed that the enquiry report of DPO/SPO was not brought on record and not treated as final being not approved by the Sessions Judge/Director Human Rights. First of all the true copy of the deposition of PW-5 Khushiram on record clearly showsthat he being Reader/Clerk of the Office of DSP had produced enquiry report at Exhibit 22/C, photocopy of the said report is also placed on record in this revision application which clearly indicates that allegations made in the complaint by present applicant/defendant and 4 (four) others against respondent/plaintiff were baseless, false and not proved, thus it had attained finality, as applicant did not challenge the findings in inquiry. Applicant/defendant in his written statement has not only owned said application but also admitted all allegations therein against the respondent/plaintiff; However, in the suit his simple defence was that enquiry was not held properly as his supporting evidence was not recorded. This version of appellant/defendant seems to be baseless as if he had not been provided opportunity during enquiry he could have brought on record such evidence at the time of trial to substantiate his assertion, but admittedly not, thus, in fact there was no justification before the trial Court to discard the evidence produced by the respondent/plaintiff and his witnesses Hamersingh, Mohammad Ashraf, Mushtaq and Khushiram, who have fully supported his version and their evidence was not shaken in the cross-examination. Of course, respondent/plaintiff has failed to examine taxi driver to whom he made D payment towards fare charges at the most his claim to that extent was not proved but there was no reason to refuse rest of the claim of the respondent/plaintiff. The learned appellate Court has rightly appreciated the evidence of both the parties and decreed the suit to the extent of Rs.35,000 as damages for mental torture and reputation, such type of damages fall within the category of general damages for which no standard or method is provided. Reliance may be placed on PLD 1996 SC 737.

13. In view of the above discussion and after evaluating the record I have arrived to the conclusion that the impugned judgment of the appellant court has rightly been passed and has exercised jurisdiction vested in it under the law. No illegality or irregularity has been pointed out. Therefore, this revision application merits no consideration and stands dismissed accordingly. MH/J-1/Sindh Revision dismissed.