2016 PLP 418 (MLD)

MUHAMMAD GHAZANFAR KHAN, J.

This single judgment is directed to dispose of two regular first appeals bearing Nos.31 and 32 of 2011 as both the appeals are the outcome of one and the same judgment, hence are decided together.

2. Brief facts of the case are that appellants of both the appeals were charged and tried under sections 436/427, P.P.C., on the complaint of present respondents in a case registered at police station City D.I. Khan, vide FIR No.53 dated 13-2-2004, wherein the present appellants of both the appeals were acquitted by the trial court on extending benefit of doubt.

3. The present appellants after acquittal sued the respondents for damages on the basis of malicious prosecution.

4. The learned trial court on conclusion of the trial dismissed the suits of both the appellants vide separate judgments on 25/2/2011, hence the present appeals were filed by the appellants.

5. We have heard learned counsel for the parties and gone through the record.

6. The record shows that the present appellants of both the appeals were arrested in the case FIR mentioned above and were released on bail by the trial court. The respondents moved bail cancellation applications before Sessions Judge, D.I. Khan, who entrusted the same for disposal to Additional Sessions Judge-I D.I. Khan. During pendency of the cancellation applications, the parties entered into a compromise and the present respondents withdrew the cancellation applications. This fact is proved by the order sheet No.6 dated 14-4-2004 which reads as under:-- "Petitioner with counsel, APP and accused-respondents with counsel present. In the light of statement of petitioner, duly identified by his counsel, present bail cancellation is dismissed as withdrawn. File be consigned to record room."

7. On the same day, an application was filed by the present respondents that they want to withdraw the bail cancellation application on the basis of compromise. To this effect, statement of Ehsanulah, one of the respondents, was also recorded. All these documents are part and parcel of the present file and have been exhibited as Ex.DW.1/2, that too without any objection from the appellants. This fact was never challenged in cross-examination of the witnesses, so, legally the fact which has not been challenged at the time of cross-examination and the documents exhibited without objection would be deemed to be an admission on the part of the party against whom the same is used. Secondly, the complete challan submitted in the criminal case also indicates that the parties have effected compromise in criminal case. Though the acquittal order is silent about the compromise but surely because the offence for which the present appellants were charged is non-compoundable, so, deliberate concessions were given by the PWs to the accused persons, so, to create reasonable doubt leading the court to acquit the accused persons.

8. As discussed above, this case does not fall within the ambit of malicious prosecution, so dismissal of the suits of appellants was just, legal and in accord with the legal framework.

9. Consequently, we find no illegality, irregularity and any misreading or non-reading of the evidence by the trial court, nor the impugned judgments and decrees are the result of illegal exercise of jurisdiction, hence both the appeals are dismissed. SL/440/P Appeals dismissed.