P L D 1999 Lahore 35 (PLP)

2. I have heard learned counsel for the parties and perused the material on the record. The appellant was working as Headmaster, M.C., Primary School Gurdwara Ramgarh, Lahore at the time of institution of the suit. In the month of August, 1984 his son Sajjad Riaz had disappeared, whereupon he made a report to the police which 'was entered at No.4 on 14‑8‑1984 at P. S. Ghaziabad, Lahore. The said report reads as under:‑‑ urdu Had there been any malice on the part of the appellant against the respondent or had the disappearance of the appellant's son been a created circumstance to implicate the respondent then his name must have figured in the initial report. Thereafter, F. I. R. No. 198 was registered at Mustafa Abad on 18‑9‑1984 on the petitioner's statement. In the F.I.R., the respondent was not directly alleged to have abducted or kidnapped the child. It was stated therein that the matter regarding disappearance of the appellant's son was advertised in the press and some hand bills were got published and distributed among the people; that Saeed Anwar, respondent, a resident of the appellant's Mohallah took a few hand bills and informed him on the next day that he had delivered some hand bills to a person named Munir, who was connected with the Intelligence Bureau; that on 5‑9‑1984 Munir gave a ring to the appellant's nephew Yunus Aziz and informed him that the child had been traced out and that they should come at a place bearing No.37, Bahawalsher Road, Lahore and that the child would be delivered before the Magistrate; that accordingly, the appellant alongwith some respectable persons went to the said place where Munir met him and gave him a paper in his own handwriting in the light of which efforts were made to trace out the child at Jand and Attock Railway Stations; that thereafter, the appellant contacted Saeed Anwar, who asserted positively saying: During the course of investigation, the appellant's son was recovered from Munir accused and handed over to him. Thereafter finding of innocence was recorded by the investigating officer in favour of the respondent. On the basis of the said finding the Magistrate discharged the respondent from the case. The appellant accepted the said order and did not challenge it before any higher legal forum. This also shows that the appellant had no malicious intention to implicate the respondent falsely in the case. He being the father of the missing child was extremely worried. It appears that whatever little clue the appellant was able to get about his missing son was honestly mentioned by him in the F.I.R., leaving the rest to be done by the police in accordance with the law. In case, the police had arrested the respondent without any reasonable material or tortured him in the police lock‑up, the respondent ought to have impleaded the concerned police officials as defendants in the suit. By not impleading them, the respondent has unilaterally exonerated the Police Officials from tortious liability. From the material on the record, it is merely established that the respondent was prosecuted on a report lodged by the appellant but it was not proved that it was done maliciously or with ulterior motives. The appellant had justifiably set the machinery of law in motion for the sole purpose of recovery of his missing son. A In the F.I.R. he had placed the main burden on Munir accused from whom his son was ultimately recovered. As soon as the Police found that the respondent had no hand in abducting the appellant's son it voluntarily made a recommendation in his favour and got him discharged from the case. In the case of Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 29, the Supreme Court of Pakistan has laid the following ingredients for establishing 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 had also affected her reputation; and finally (vi) That the plaintiff had suffered damage. In the present case, it is not established that the appellant had acted without reasonable and probable cause and that he was actuated by malice. The initial onus of proving the absence of reasonable and probable cause and malice on the part of the defendant/appellant was on the respondent. The onus cannot be discharged by merely showing that the prosecution was launched at the behest of the defendant or that the case ended up in the plaintiff's discharge or acquittal. A contrary view would discourage the citizens even from making bona fide or e honest reports to the Police for redress of their grievances.

3. In this view of the matter, the trial Court had rightly dismissed the' respondent's suit and the first Appellate Court grossly erred in law in reversing the judgment and decree of the Trial Court.

4. For the foregoing discussion the appeal is accepted, the impugned judgment and decree.dated 5‑4‑1993 passed by the learned Additional District Judge are set aside and those of the Trial Court restored leaving the parties to i bear their own costs. A.A./R‑70/L Appeal accepted.