P L D 2000 Supreme Court (AJ&K) 31 (PLP)

SARDAR SAID MUHAMMAD KHAN, C.J.

This appeal has been preferred against the judgment and decree of the High Court dated 4-11-1998, whereby the decree passed by the trial Court awarding them damages for malicious prosecution was set asidby the High Court.

2. The brief facts of the case are that a criminal case was registered .under sections 447 and 427, Penal Code read with section 14, E.H.A. on the report lodged by Muhamm Afsar, respondent herein, against the appellants. After trial the, appellants, herein, were acquitted by the Tehsil Criminal Court. Thereafter, the appellants herein, filed a civil suit alling that they have been dragged in a criminal Court for about three years and had borne the expenses to the tune of Rs.24,

000. They prayed for a decree for damages against the respondent for malicious prosecution. The trial Court decreed the suit. However, on appeal to the High Court the judgment and decree of the trial Court were set aside mainly on the ground that there was no evidence in support of the fact that the allegation against them was without a reasonable ground. It is against the aforesaid judgment of the High Court that the present appeal has been preferred.

3. Sardar Rafique Mahmood an, the learned counsel for the appellants, has argued that thfact that appellants were maliciously prosecuted on the report lodged by the respondent is evident from the copy of the judgment of the Tehsil Criminal Court. He has submitted that the acquittal of the appellants is ample proof of the fact that they were innocent and did not cut any tree belonging to the respondent. He has argued that according to recovery memo. the tree which waallegedly cut and taken away by the appellants was a pine trewhereas the case of the respondent in F.I.R. was that they had cut and taken away the coil tree. The learned counsel has argued that in fact the whole case against the appellants was fabricated and was result of previouenmity between the parties as is evident from the contents of the F.I.R. The learned counseons referred to the r following authorities in support of his contention. , In case reported as Jo$endra Garabadu and others v. Lingeraj Patra and others AIR 1970 Orissa 91, it was observed that in a suit for damages for malicious prosecution, the plaintifshould prove that he was prosecuted by the defendant without any reasonable and probable causend that the judgment in the criminal case which resulted in acquittal is only evidence that accused were acquitted and not of e facts that they were prosecuted without any reasonable and obable ground. Obviously, the dictum laid down in the authority does not support the case of the appellants rather it supports the case of the defendant because there is no evidence in the present case showing that F.I.R. kged by the respondent was wiedt any probable or reasonable cause. The case reported as JummKhan v. The State PLD 1982 FSC07 which was relied upon by the learned counsel for the appellants does not pertain to the awarding of compensation for malicious prosecution, hence the same has no relevancy to the facts ofhe case in hand. Therefore, the s am need not to be discussed.

4. In reply Mr. M. Tabassum Afb Alvi, the learned counsel for the respondent, has controverted the arguments of the learned unsel for the appellants. He has argued that in fact the kind of the timber as being of pine tree was inadvertently mentioned in the recovery memo. prepared by the Investigdting Officer and there was no fault of the complainant. He has argued that the Tehsil Criminal Court has acquittethe accused-appellants solely on the ground that there was contradiction in the contents of F.I.R. and the recovery memo. The learned counsel has maintained that so far as the question of cutting and taking away of the treby the appellants is concerned, that was not negated by the Teil Criminal Court. He has furtr argued that no evidence has been adduced by the appellants in the suit for damages to show that the case which was registered against them was the result of any malice on the part of the cendant. He has submitted that it was incumbent upon the appellants to prove in the civil suit by leading evidence that in fact the prosecution of the appellan was without any reasonable cause. He has referred to cases rerted as S.M. Tufail Ahmad v. Willayat Hussain and 2 others 1993 CLC 1743 and Habib Bank Ltd. v. The State and others 1993 SCMR 1853 in support of his contenti that the Supreme Court does not ordinarily interfere in the ccurrent findings of fact arrived at by the Courts below. The aforesaid authorities are irrelevant because in the instant case there were no concurrent findings as the suit filed by the appellants, herein, was, decreed by the trial Court and findings were reversed by the High Court.

5. We have given due consideration to the matter. The moot point in the case is that whether there is any evidence in support of the allegation that the prosecution of the appellants was without any reasonable ground. It may be stated that the learned counsel .for the appellants could not point out any sifch evidence; henly stressed that, as the appeants were acquitted by the Tehsil Criminal Court, they were entitled to the compensation. It may be stated that as is evident en from the case reported as Jogendra Garabadu and others v. Lingeraj Patra and others AIR 1970 Orissa 91, relied upon by the learned counsel for the appellan, it is necessary for the plaiiff to prove in a suit for damages that his prosecution was without any reasonable ground. The mere fact that the accused-appellants were acquitted would not justify to award them compensation for malicious prosecution without proving the aforesaid fact. A reference may be made to the cases reported as Khawaja Muhammad Naseem v. Shafiqur Rehman 1996 CLC 1460 and Muhammad Akram Sust. Farman Bi PLD 1990 SC 28 in support of the view that it is also necessary for the plaintifto prove that the defendant prosecuted him without a reasonable or probable cause. In the light of what has been stated above, we find no reason to disturb s finding of the High Court. Hence, the appeal is hereby dismisd with costs. H.B.T./444/SC(AJ&K) Appeal dismissed.