P LD 2020 Balochistan 38 (PLP)

ROZI KHAN BARRECH, J.

This judgment disposes of R.F.A. No.93 of 2009 filed by the appellant namely Mahmood Khan Kurd son of Sardar Deernar Khan Kurd against the judgment and decree dated 11.06.2009 hereinafter "the impugned Order") passed by learned Senior Civil Judge-II, Quetta, (hereinafter "the trial Court") whereby suit filed by the appellant (plaintiff) for recovery of Rs.3 crore was dismissed.

2. Siccinctly the facts of the case are that on 19-5-2008 the plaintiff (appellant) filed a suit for recovery of Rs.3 crore against the respondent (defendant) before the learned Senior Civil Judge-II, Quetta, averring therein that the respondent (defendant) lodged FIR against him bearing No.76 of 2003 dated 14.04.2003 under sections 447, 448, 427, 34 P.P.C. registered with the Police Station Saryab, Quetta, with the allegation that the respondent (defendant) Arbab Muhammad Hashim owns his property at the corner of Arbab Karam Khan Road Shah Zaman Road which include nine shops on the road and a plain piece of land behind it where a house consisting two rooms had been constructed. A gate in between the shops led to the land and the house. Mutation No.158, Ward No.8, Tappa Urban-II, Tehsil Quetta of the said property was in his name. On 17.12.2002, the accused Mehmood Kurd, Irfan Buledi and Imran Buledi with intention to occupy the property closed the gate by erecting a wall inside the gate and made their way by breaking the wall between the said property and Buledi house. On 14.04.2003 he saw that the accused Mehmood Ahmed Kurd with his men had removed the wall behind the gate of the property and was raising the height of the gate. It is further alleged in the report that the accused Mehmood Ahmed Kurd has kept his illegal possession over the said property through fraud and coercion. His accomplice was Mehmodo Hashmi, and after investigation, the challan was submitted before the learned Additional Judicial Magistrate-II, Quetta, who after framing the charge and recording statement of two witnesses acquitted the appellant on the application under section 249-A Cr.P.C. on 30.03.2004. It is the case of appellant (plaintiff) contended in his plaint that the above mentioned previous proceedings were initiated by the- respondent (defendant) with intention to drag the appellant into false litigation to harass and humiliate his reputation and made him bound to appear on each and every date of hearing before the trial Court without any fault on his behalf and due to such malicious proceedings the appellant suffer mental torture, disrepute, harassment and harm to his reputation in the society as well as in the tribe. Lastly the plaintiff claimed amount of Rs.3 crore as damages.

5. Notice was served upon the respondent (defendant). During the proceedings the respondent (defendant) filed an application under Order VII, Rule 11, C.P.C. for rejecting of the plaint. After hearing the parties, the learned trial Court dismissed the suit of the plaintiff (appellant) on 11.06.2009. Hence this appeal.

6. We have heard the learned counsel for the parties and have gone through the available record with their assistance.

7. A perusal of the record shows that certain facts are undisputed between the parties, for example, the respondent (defendant) is not denying that he lodged FIR against the appellant (plaintiff) and as a result of same he was acquitted from the charge. In the given circumstances, the question which for determination before this Court is to see, as to whether mere acquittal of the appellant in a criminal case would confer any right upon him to sue the defendant/respondent for damages on the basis of malicious prosecution. 7(sic). By now there is no cavil with the proposition that the prosecution of a criminal offence would only provide a cause for damages for malicious prosecution to the acquitted accused if it is based on malice of the complainant, and that too when the same is without any reasonable and probable cause. The basic elements on the basis of which suit for recovery of malicious prosecution could be accepted or rejected;- (a) The prosecution of the respondent/plaintiff by the petitioner/defendant. (b) There must be a want of reasonable and probable cause for that prosecution. (c) The petitioner/defendant must have acted maliciously i.e. with a improbable motive and not to further the ends of justice. (d) The prosecution must have ended in favour of the person proceeded against. (e) it must have caused damage to the party proceeded against. The apex Court laid down the following principles qua the granting or refusing damages with regard to malicious prosecution in Muhammad Akram's case PLD 1990 SC 28 which are as follows:- (i) That the plaintif 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 effected her reputation. (vi) That the plaintiff had suffered damages.

8. In order to comprehend the conceipt of malicious prosecution, it would be appropriate to go behind its meaning and definition. The term 'malicious prosecution' is defined in Black's Law Dictionary as "The institution of a criminal or civil proceeding for an improper purpose and without probable cause." Ballentine's Law Dictionary defines it as, "The institution of any action or proceeding, either civil or criminal, against another maliciously and without probably cause". In Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478), the august Supreme Court of Pakistan defined malicious prosecution as "a tort which provides redress to those who have been prosecuted 'without reasonable cause' and with malice".

9. In the case titled Abdur Rauf v. Akhtar Razzaq and another PLD 1994 SC 476 while laying down the same principles has held as under:- "(d) Malicious prosecution

Suit for

Proof of existence of malice itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause. (f) Malicious prosecution- Damages

"Special Damages" could be awarded only on strict proof thereof '.

10. In the said judgment there is much stress and emphasis upon strict proof and non-existence of probable and reasonable cause. In the case in hand although the appellant has claimed that his liberty was illegally interfered into with, he suffered mental torture, agony and irreparable loss to his good reputation and honor in the society due to the vindication and humiliation at the hands of the respondent, but all these assertions made by him do not stand proved with the help of any degree of evidence of a predominant nature. Rather the same stand falsified in view of the available record, the perusal of which also indicates that the appellant Mahmood Khan Kurd was charged for an offence under sections 447, 448, 427, 34, P.P.C. in Crime No.76 of 2003 lodged by the respondent (defendant) against him with the allegation that the appellant and absconding accused removed the wall behind the gate of property of the respondent (defendant) and was raising the height of the gate. It is also admitted by the appellant in his plaint that there was also civil dispute between the parties and civil case was pending before the Civil Judge. The pendency of the civil suit in respect of the property in which the respondent (defendant) lodged FIR are indicative of the fact that the FIR of the respondent was not without probable and reasonable cause and his intention to discharge the prosecution of the appellant was not tainted with any malicious. Perusal of the judgment of the Additional Judicial Magistrate-II, Quetta, dated 30.03.2004 on which the appellant (plaintiff) is relying shows that the plaintiff was acquitted on account of the fact that the prosecution failed to establish its case beyond reasonable doubt and the prosecution evidence has brought nothing against the accused persons and there is less chance of his conviction in any offence. However, the said judgment is silent with regard to the malicious of the respondent (defendant) and also with regard to the falsehood of the FIR. The order of the learned Additional Judicil Magistrate-II, Quetta, also does not suggest that there was no probable or reasonable cause for the respondent (defendant) to register FIR, therefore, reliance on this judgment does not discharge the burden of appellant (plaintiff) with regard to the above six points and the appellant has also not proved, the damages by any stretch of imagination so claimed by him.

11. Even otherwise, the acquittal of the appellant (plaintiff) in the said FIR was not on merit by the trial Court, rather it was on technical ground, due to insufficient of evidence, under section 249-A Cr.P.C. and as such he is not entitled to any damages. A cursory glance on the contents of decision of the concerned Court makes it explicitly clear that the said Court was exercising its power and jurisdiction under section 249-A Cr.P.C. for which no stage is fixed. Meaning thereby that trial of the said FIR was not completed and certain proceedings were yet to be carried out. The said decision further reveals that the appellant was not acquitted, rather discharged. At this juncture, another legal question crops up for consideration is whether the termination of further proceedings and its ultimate culmination into the discharge of the appellant legally tantamount to his acquittal and can be made a valid base for claiming damages, or the same embodies two different meanings. The definite answer to the said question is that the acquittal and discharge are two different terminologies and are diametrically not synonymous. The acquittal means to declare a "person accused of a crime to be innocent", while on the contrary discharge means "to release someone from custody" or allow someone to leave, or "to pay off". What can irresistibly be derived from the aforesaid definition is that it was not an acquittal rather it tantamount to his discharge under section 249-A Cr.P.C. for which no special damages can be claimed.

12. Admittedly, the learned trial Court did not discuss the issue of limitation i.e. whether the suit of the appellant was barred by time. It is settled law that the First Appellate Court has all the powers under section 96, C.P.C. to reappraise the entire evidence on record.

13. It is stated earlier that the appellant. (plaintiff) was acquitted of the charge by the learned Additional Judicial Magistrate-II, Quetta, on 30.03.2004, whereas he has filed the suit for damages on 19.05.2008, after lapse of four years which therefore was barred by time.

14. According to the Article 23 of the Limitation Act, limitation for filing suit for compensation of malicious prosecution is one year and the limitation starts from the date of acquittal of the plaintiff or the prosecution is otherwise terminated. The reads as under: Limitation Act. Description of Suit. Period of Limi-tation Time from which period begins to run.

23. For compensation for a malicious prosecution. One year. When the plaintiff is acquitted, or the prosecution is otherwise terminated.

15. Article 23 of the Limitation Act applies where the suit for damages claiming compensation for malicious proceedings. Suit for malicious prosecution must be filed within one year from the date of acquittal of plaintiffs. The foundation of an action for malicious prosecution lies in the abuse of the process of the Court by wrongfully setting the law into motion and it is designed to discourage the provision of the machinery of justice for an improper purpose. Whereas Section 3 of the Limitation Act provides that the institution of the suit after the limitation period shall be subject to the provisions of the Limitation Act irrespective of the fact that the limitation has not been pleaded as defense. Section 3 is reproduced herein below:- Section 3 of the Limitation Act provides as under:- "Dismissal of suit, etc., instituted etc., after period of limitation. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence".

16. It is obigatory on the Court to decide the question of limitation first and only thereafter proceed to decide the matter on merits. The Court is bound to address the question of limitation irrespective of the fact that whether it was agitated or not. A suit barred by time should be dismissed even if nobody has pointed out such lacuna. If the proceedings brought before the Court are barred by time, the court cannot assume jurisdiction and shall have no jurisdiction in the matter unless the delay is condoned first, and disposal of the suit on merits alone is not sufficient for presuming that the delay was condoned. The suit/plaint is to be rejected forthwith even without resorting to the evidence or framing of any issues under Order VII, Rule 11, C.P.C. if it appears from the plaint that the suit is barred by limitation. While dealing with the issue of limitation in the case of Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) the Hon'ble Supreme Court has laid down the following guidelines:-- "The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defense. If from the statement of the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleading of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (ILR 38 Mad 374), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it". The same Court in subsequent case, Ramamurthy v. Gopayya (ILR 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram (AIR 1940 Lah. 75), and held that "there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up against by the parties waiving them or by the Courts themselves."

17. The judgment and decree passed by the learned trial Court was also evaluated thoroughly by us which does not suffer from any illegalities or irregularities neither the same is perverse nor ridiculous. The learned trial Court has passed a well reasoned judgment in accordance with law after discussing all aspects of the case. For the reasons discussed herein above, we are not inclined to accept this appeal, which is accordingly dismissed being devoid of merit. Parties are directed to bear their own cost. ZC/115/Bal. Appeal dismisse