2000 PLP 1943 (YLR)

4. Parties led evidence on these issues and on assessment of the evidence on record learned Senior Civil Judge rendered findings against the applicant and dismissed the suit The judgment and decree were upheld by the First Appellate Court.

5. Learned counsel for the applicant submitted that the applicant had led evidence which was adequate to make out the required ingredients of malicious prosecution entitling him to damages. According to him the prosecution was conducted in the Court of S.D.M. Nara Valley on the basis of application filed by the respondent which ended in favour of applicant as the respondent withdrew the same and since the prosecution was without probable cause and affected the reputation of applicant who further suffered actual damages also, the Trial Court as well as the First Appellate Court passed judgment on misreading of the evidence and their decisions are liable to be set aside. He relied on PLD 1998 Karachi 250 in support of his contention.

6. Learned counsel for respondent referring to the contents of judgment of Trial Court submitted that the evidence was full discussed whereafter just and legal conclusions were drawn while recording findings in the negative on material issue; such as the issues Nos. 1, 2 and 3 which were maintained by the First Appellate Court, and there is no reasonable ground to interfere with such concurrent findings.

7. A simple perusal of the judgment of the Trial Court would show that it minutely examined the evidence of applicant/plaintiff and his witness Altaf and Nabi Bux. The Court found the evidence of the applicant and his witnesses in conflict with each other. The applicant stated that he was standing wit witnesses Nabi Bux and Altaf when Mst Sami insulted him, but Nabi Bux gave version otherwise; saying that applicant was alone when he went to market chowk of the town and witnessed the incident. So also Altaf stated that on hearing commotion he proceeded to that place and saw the incident. Thus, the Trial Court was justified in observing that the evidence of these witnesses was contradictory to each other. Besides, both the witnesses Altaf and Nabi Bux did not state that the respondent had extended any threats to applicant that she would involve him in a false case. It has come in evidence that all these four persons are closely related inter se. The parties herein are first cousins (Masat) to each other, P.W. Altaf is son of respondent's maternal uncle and also husband of her sister Mst. Bachi, while P.W. Nabi Bux is respondent's sister. It has also come on record that respondent is serving in Social Welfare Department and her father was in service of police department. The applicant's witness Nabi Bux admitted that his sister namely the respondent is parda observing lady and that her father had sold plot No.948 by registered sale‑deed, but he (the witness Nabi Bux) owned a house in the said CS No.948. Indeed, in the background of such relationship and the dispute over property the Trial Court was wholly justified in exercising utmost care and caution while appraising the evidence and rightly came to the conclusion that the evidence of applicant and his witnesses was absurd and that they were set-up witnesses and deposed falsely.

8. The first Appellate Court has gone few steps further and minutely assessed the evidence produced by the applicant and then concurred with the findings of Trial Court. The Court was correct in pointing out that the evidence adduced by the applicant was much below the required standard of establishing the claim of malicious prosecution.

9. On a thorough examination of the judgments, I am convinced that there is no misappreciation of evidence on the part of the Courts below. The lave is well‑settled that unless the findings of the First Appellate Court are based on no evidence and fallacious appraisal of evidence or are result of conjectures, the same cannot be interfered with in revisional jurisdiction. The decision in Mst. Naziran Begum v. Mst Khurshid Begum, 1999 SCMR 1171, may be quoted with advantage on this point. More particularly when such drawbacks as aforesaid are not appearing, there is absolutely no ground to upset the concurrent findings of the lower Court. There is plethora of case law on this point and at least the latest decision of Honourable Supreme Court in PLD 1994 SC 291 and 1990 SCMR 694 may be cited beneficially in the context.

10. On the point of malicious prosecution which is involved in issues Nos. l and 2, the substance of allegation is contained in para. No.6 of the plaint, wherein it is averred that the respondent levelled false and concocted allegations against the applicant in her application filed in the Court of Sub -Divisional Magistrate Nara Valley at Umerkot, thereby the applicant was dragged only to disrespect him in the eyes of community and society. At the trial, the applicant deposed that it was alleged in the said application that the applicant and others entered into the house of respondent during the hours of night, maltreated her and other house inmates and also attempted to commit robbery. On this application, Assistant Commissioner/Sub‑Divisional Magistrate Nara Valley issued notices to applicant and others who attended the Court on 23‑12‑1990, but the matter was adjourned to 2‑1‑1991 and on that date when applicant and others reached the Court, the Reader informed them that the respondent had withdrawn the case. Learned counsel for applicant submitted that since the notice was issued and the applicants attended the Court of Assistant Commissioner/Sub‑Divisional Magistrate Nara Valley in pursuance of the notice, it was enough to establish factum .of prosecution of applicant and the subsequent withdrawal of the case would make no difference as, at least on one date of applicant had attended the Court in capacity of opponent.

11. Within the scope of aforesaid contentions, the determination of controversy rests on the points, whether prosecution had taken place and that it was malicious or not. In this context, it is significant to mention at the out set that the Assistant Commissioner and Sub‑Divisional Magistrate was not a Judicial Magistrate, but an Executive Magistrate and had no jurisdiction to try an offence of attempt to commit robbery or causing hurt etc. The aforesaid application could only be dealt with by the Assistant Commissioner/Sub‑Divisional Magistrate, apparently on administrative side. He had otherwise no power to take cognizance of the aforesaid offence, for which the allegations were made in the application. As held in Dhanjishaw Ratanji v. Bombay Municipality 1945 Bom. 320, prosecution implies setting of the law in motion by way of an appeal to some person clothed with judicial authority in regard to matter in question. In the instant case the Assistant Commissioner/Sub -Divisional Magistrate had no jurisdiction to try the case or for that matter to take cognizance, therefore, he was not a person clothed with authority and mere issuance of a notice would not, therefore, be tantamount to prosecution.

12. As regards the second question, whether the prosecution was malicious, the learned counsel placed reliance on Nasir Raza Jaffery v. Macter PLD 1998 Karachi 250 and Muhammad Akram v. Farman Bi PLD 1990 SC

28. The principle laid down in the case of Nasir Raza Jaffery does not advance the applicant's cause. It is laid down therein that unsuccessful criminal or bankruptcy or liquidation proceedings without reasonable or probable cause, would be malicious prosecution. Indeed there was no prosecution in the present case nor the proceedings could be termed as unsuccessful. In the last mentioned Supreme Court authority reliance was placed on the Privy Council decision in Muhammad Amin v. Jogendra Kumar Bannerjee and others (AIR (34) 1947 Privy Council 108) and for malicious prosecution the following elements of the tests were enumerated: (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 plaintiffs liberty and had also affected her reputations; and finally and (vi) That the plaintiff had suffered damage;

13. It will not be out of place to mention that the same tests have been re‑affirmed in the subsequent cases Abdul Rauf v. Abdul Razzak PLD 1994 SC 476, Fazlle Rahim v. Rab Nawaz 1999 SCMR 700, and United Bank Ltd. v. Ghulam Hussain 1999 SCMR

734. While elucidating the legal position it was reiterated in the last mentioned authority that the plaintiff must show that the prosecution of the plaintiff by the defendant Was actuated with malice and there was absence of reasonable and probable cause in initiating the prosecution against the plaintiff. It was further observed that the defect of lack of reasonable and probable cause cannot be supplied by evidence of malice.

14. Now, keeping in mind the above principles the Court can draw an appropriate conclusion favourable to applicant only when the applicant proves that he was prosecuted and that the respondent had no reasonable or probable cause to initiate the proceedings. Incidentally the proceedings in the instant case, as stated earlier were nothing but an application made to the Assistant Commissioner and Sub‑Divisional Magistrate who as already discussed, had neither jurisdiction to take cognizance nor was clothed with authority to commence with prosecution on the basis of application. No doubt the application was withdrawn, but mere withdrawal by itself shall not lead to an inference that the averments made therein were false or actuated with malice and the respondent had no reasonable cause. As such it may reasonably be observed that no malicious prosecution had taken place and consequently the findings of Courts below on issues Nos. l, 2 and 3 are not open to question.

15. In consequence of foregoing discussion, it may safely be concluded that appellant utterly failed in making out a case for damages on the ground of malicious prosecution and in absence of any illegality or material irregularity in the impugned judgment or illegal exercise of jurisdiction by the First Appellate Court, this revision merits no consideration and is dismissed with costs. H.B.T./M‑75/K Petition dismissed.