P L D 2003 Azad J&K 1 (PLP)

In Nayeb Ali Dafadar's case (PLD 1969 Dacca 985) the following observation was made:‑‑ "Tort‑‑Malicious prosecution‑‑Mere setting law in motion‑‑No criterion‑‑Foundation of action‑‑Malice may be shown at any time in course of inquiry‑‑Guiding principles for making defendant responsible for damages (i) person making complaint does not go beyond what he believes to be correct and (ii) gives honest assistance in inquiry and prosecution‑‑Plaintiff a man of substance and member of affluent family named by defendant in complaint to police as suspect for theft‑‑Plaintiff arrested and kept in Hajat over night. bailed out next day and subsequently discharged on recommendation of police‑‑Existence of defendant's jealousy and grudge against plaintiff overwhelmingly proved‑‑Facts showing no reasonable or probable cause for naming plaintiff as a thief and thus characterising him as a criminal‑‑Malice of defendant, in circumstances held, obvious and suit for compensation against defendant decreed." In Abdul Wahab Khan's case (PLD 1970 Karachi 757), the learned Judges observed as follows:‑‑ "Tort‑‑Malicious prosecution‑‑Burden of proof‑‑Heavy on plaintiff‑?Plaintiff not only to prove prosecution ending in his favour but also that it was without reasonable and probable cause‑‑Plaintiff alleging to have been falsely implicated in criminal case due to malice‑?Defendant failing to adduce evidence in rebuttal of allegation‑‑?Plaintiff, in circumstance, could be said to have proved that prosecution was without reasonable and probable cause." In Qurban Ali's case (PLD 1963 (W.P.) Karachi 155) the learned Judges held as follows:‑‑ "It is for the Civil Court to make an independent inquiry on the question whether the plaintiff was or was not guilty of the offence with the commission of which he was charged by the defendant, arid in a suit for damages for malicious prosecution, the acquittal is a fact in issue, and the judgment of acquittal is admissible not only to establish that the plaintiff was in fact, acquitted, but the circumstances which resulted in his acquittal. The grounds, .however, on which the acquittal was based are not relevant, and it was for the Civil Court to inquire into the relevant question as also whether there was reasonable and probable cause for the, complainant. " In Muhammad Yousaf Shah's case (1993 SCMR 1185) it was observed as under: "All the three Courts below have come to the conclusion as a fact that the prosecution of the plaintiff was without any foundation and intentionally initiated to persecute and harass him to harm his reputation and to subject him to mental agony and torture and lower him down in the eyes of public. In the presence of these factual findings, we have no other option but to hold that he was rightly awarded damages by the trial Court, maintained by the High Court and their decisions are not exceptionable. " In Fazale Rahime's case (1999 SCMR 700) it was observed as follows:‑‑ "In the present case the petitioner stepped into the witness‑box to give evidence but all that he stated was that the case registered by the police against him on the report lodged by the respondent was disposed of under section 169, Cr.P.C. and thereafter, a case was instituted against the respondent for malicious prosecution. The respondent was then found guilty by the Magistrate upon his own confession and was convicted. However, as it can be clearly spelt out from the order of the Magistrate itself, such confession had been made by the respondent due to the reason of his protracted trial and delaying tactics employed by the prosecution. Therefore, it was not a confession simpliciter, in such circumstances, the learned Judge in the High Court did not find such evidence sufficient to sustain the said decree against the respondent. The petitioner no doubt, had also relied upon the evidence of one Radi Gul, Moharrar, then posted at Police Station Batagram, but his evidence was not materially different from that given by the petitioner. However, the evidence of the witnesses further indicated that an altercation had taken place between the parties on 10‑4‑19815 before lodging of the F.I.R. by the respondent. Although, in the F.I.R. lodged by the respondent, he had accused the petitioner of firing at him, which charge was found to be false by the police, but before the Court the respondent stood by his earlier statement made by him ‑in the F.I.R. Such evidence was, therefore, not found sufficient by the learned Judge in the High Court to warrant awarding of the decree against the respondent. Consequently, the revision filed by the respondent was allowed. In our opinion, the view taken by the learned Judge in the High Court does not appear to be unreasonable, as evidently the petitioner appears to have failed to establish that the respondent had invented such prosecution against him or that he had acted with malice or without reasonable or probable cause. The mere fact that the petitioner was discharged in the earlier case under section 169, Cr.P.C. or that the respondent was, subsequently, prosecuted by the police under section 183, Cr.P.C. is not sufficient, by itself, to establish a case of malicious prosecution against the respondent. The entire onus in such case would, be on, the plaintiff which the petitioner appears to have failed to discharge this case.? In Sher Muhammad's case (1995 CLC 1134) it was observed as follows:‑‑ "In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things; (I) that prosecution was malicious and (II) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrong headed ‑a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough, there must also be shown to be absence of reasonable' and probable cause." In Khawaja Muhammad Naseem's case (1996 CLC 1460), it was held as follows:‑‑ "The admitted facts of the case that complaint was lodged by the petitioner with the police with the allegations mentioned therein with a gist reproduced above and with the ultimate result in favour of the respondent. For the success of malicious prosecution, it is the bounden duty of the complainant to prove the following points:‑‑ (i) That the plaintiff was prosecuted by the defendant; (ii) that the prosecution terminated in favour of the plaintiff; (iii) that the prosecution was initiated against the plaintiff without reasonable and probable cause; (iv) that the prosecution was initiated with a malicious intention i.e. not with intention of carrying the law into effect but .with an intention which was wrong in point of fact." In Muhammad Latif's case (PLD 2000 SC (AJ&K) 31) the learned Judges made the following observation:‑‑ "Malicious prosecution‑‑Suit for damages‑‑Necessary for plaintiffs to prove that their prosecution was without any reasonable ground‑‑ Mere fact that plaintiff/accused were acquitted, would not justify to award them compensation for malicious prosecution without proving said fact."

7. After examining above‑referred authorities on the point of damages claimed on the ground of malicious prosecution, it may be observed that the plaintiff was under legal obligation to prove before Civil Court that the prosecution which ended in his favour was not the prosecution but it was persecution. He was under heavy burden to prove that no reasonable or probable cause or justification was available of his prosecution. There should be evidence before Civil Court in a suit for damages to show that the plaintiff was prosecuted out of enmity, ill‑will, hatred and malice without any reasonable cause or justification on the part of defendant. Keeping in view the above‑stated legal position, the facts of present case were examined with care and caution. The facts on the ground of which the present suit for damages has been brought before Civil Court did not suggest to allow the suit because it is not proved by the plaintiff‑appellant that he was maliciously prosecuted. No enmity, grudge, ill‑will, hatred or malice is shown on the part of defendants. Secondly, the evidence brought on record shows that the bank authorities were defrauded and there was reasonable cause entitling them to have legal course against the appellant. The person who was introduced and identified by the appellant never turned‑up so as to draw the money and the amount was drawn by the father and brothers of the appellant. The foreign demand draft is found to be in the name of another person having same name i.e. Isad Mahmood Malick. It appears that foreign demand draft somehow or the other was received by the appellant and he managed to open the account by producing a fictitious person and thereafter the amount was collected from the bank. These are the facts which reasonably entitled the defendant to initiate criminal proceedings against the appellant and it cannot be said that the criminal action was without any reasonable cause. It is correct that the criminal case was dismissed under section 249‑A of Cr.P.C. but this fact by itself is not sufficient under law to claim damages from the defendant‑respondents in view of settled law as mentioned above. Moreover, the appellant was. neither discharged nor acquitted but the criminal case was dismissed only.

8. The result is that the impugned judgment and decree is found to have been recorded in the right direction which does not deserve to be reversed. The appeal, therefore, stands dismissed. S.A.K./46/AJ&K???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.