2005 PLP 3172 (YLR)

MIAN HAMID FAROOQ, J.

Petitioner/defendant, through the filing of the present revision petition, has called in question judgment and decree dated 6-5-2002, whereby the learned Additional District Judge dismissed his appeal and maintained the judgment and decree dated 17-4-2001, passed by the learned trial Court, through which it decreed respondent's suit for recovery of Rs.24,500.

2. Allah Bakhsh, respondent, filed a suit for recovery of Rs.24,500, as damages on the basis of malicious prosecution against the petitioner, pleading therein that he was involved in a criminal case bearing F.I.R. No.167 dated 7-10-1995 under sections 10/16 Hadood/Zina Ordinance at the instance of the petitioner; that during the investigation, he was found innocent A and resultantly he was acquitted. The respondent claimed a sum of Rs.24,500 as damages of mental torture and monetory loss on account of other expenses incurred by him. The petitioner resisted the suit by filing the written statement thereby controverting the allegations levelled in the plaint. The learned trial Court framed the necessary issues, recorded the evidence of the parties and decreed the suit vide judgment and decree dated 17-4-2001. Petitibner's appeal was also dismissed by the learned Additional District Judge vide judgment and decree dated 6-5-2002, hence the present revision petition.

3. The learned counsel for the petitioner has contended that both the impugned judgments are not sustainable in law as the same were rendered in complete oblivion of the facts of the case and law on the subject. Conversely the learned counsel for the respondent has submitted that the concurrent findings of facts are not to be interfered in exercise of the revisional jurisdiction of this Court.

4. The Honourable Supreme Court of Pakistan in a case reported as Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 has laid down certain factors and parameters, which must be established by the plaintiff before a decree in a suit for malicious prosecution can be awarded to him. It would be appropriate to reproduce the said factors, which reads as follows:-- (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 his/her reputation; and finally; (vi) That the plaintiff had suffered damage. After hearing the learned counsel and upon the examination of the available record, I find that the aforenoted factors laid down by the Honourable Supreme Court of Pakistan, which the plaintiff must establish before getting the decree for malicious prosecution, are conspicuously absent from the case in hand. The plaintiff could not prove these necessary ingredient through the production of evidence on record. The plaintiff appeared as P. W.1 and did not even say that he was prosecuted by the petitioner and felt satisfied after stating that he was acquitted. The plaintiff was not able to prove that how he suffered monetory loss of Rs.24,500, inasmuch as no details/bifurcation of the said amount/ expenses was narrated by him. Even P. W.2 could not prove the aforesaid necessary ingredients. While placing the record of the case in juxtaposition with the law declared by the Honourable Supreme Court of Pakistan, I am of the considered view that the impugned judgments are not sustainable in law, as the same are contrary to the principles/factors laid down by the apex Court of the country in the judgment of Subedar (Retd.) Fazale Rahim (supra).

5. In the above perspective, I have examined the impugned judgments and find C that they are contrary to the law declaredby the Honourable Supreme Court of Pakistan, hence the same are not sustainable in law. There is no cavil to the proposition that if the judgments are contrary to the "law declared" by the Honourable Supreme Court of Pakistan, which as per Article 189 of the Constitution of Islamic Republic of Pakistan, is binding on all other Courts in Pakistan, they are bound to be set aside, even if they are concurrent. That is also the answer of the contention raised by the learned counsel of the respondent.

6. Upshot of the above discussion is that the present revision petition is allowed and both the impugned judgments are set aside with no order as to costs. Resultantly, respondent's suit stands dismissed. M.I./A-40/L Revision accepted.