2014 PLP 1632 (CLD)

WAQAR AHMAD SETH, J.

Anwarzeb appellant has filed this regular first appeal against the judgment and decree dated 29-5-2008, whereby learned Civil Judge, Mansehra dismissed the suit of appellant.

2. Brief and relevant facts leading to instant appeal are that appellant filed a recovery suit for Rs.25,00,000 against the respondents for damages, on account of their lodging of application to DPO Mansehra by levelling frivolous and baseless allegation of drug trafficker, as a result of which his house was raided by the local police. The respondents appeared contested the suit by filing written statement and learned trial Court after recording pro and contra evidence and hearing the parties dismissed the suit vide impugned judgment and decree. Hence, this appeal.

3. Arguments heard and record perused.

4. The admitted facts of the case are that the appellant plaintiff is a retired Junior Commissioned Officer and respondents addressed an application to DPO, Mansehra with their own names and signatures alleging that appellant is dealing in drugs and being a drug trafficker has become a menace for the population of the village. The local police raided the residential house of the appellant but nothing was recovered during search.

5. P.W.5 is a co-villager having no relation with the appellant, who stated that the appellant is living, leading a very noble, honourable and respectable life in the society and that both the parties are locked in civil litigation. He confirmed the raid of police and non-recovery of contraband. No malice on the part of P.W.5 was pointed out or dig out during the cross-examination by the respondents. P.W.6 is the neighbour with the same statement and result. The statement of P.W.7 is very exhaustive and is on the same line of earlier statements.

6. P.Ws. 8 and 9 are Patwari Halqas, who confirmed the huge property of the appellant. From the statements of P.Ws., it is clear that appellant has to his credit 28 years of unblemished uniformed service, he carries good reputation in the village, had locked in civil litigation with respondents, has property in the village and was disgraced/insulted due to allegations and raid.

7. The learned trial Court decided each and every issue and circumstance in favour of the appellant besides hold that element of malice but non-suited the appellant due to non-mentioning and proving the quantum of damages, which is not the requirement of law and due to which suit could not be dismissed. Reliance is placed on the case of Muhammad Akram v. Farman Bibi reported as PLD 1990 SC 28(c), which is reproduced as under:-- "(c) Malicious prosecution- Damages - Assessment -- Fact that exact amount was not determinable could not be reason for dismissal of a suit for malicious prosecution."

8. The essentials of malicious prosecution are proved beyond shadow of doubts as respondent levelled criminal charges, nothing proved after the police raid, malice was previous long civil litigation, without reasonable and probable cause and the raid by police affected the reputation of the appellant. Every person in the society has a right to set in motion Governmental any Judicial machinery for protection of his rights but such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigation. The learned trial court's judgment is not based on correct appreciation of evidence, hence, could not be maintained.

9. Since appellant has not specified the damages, hence, general damages are to be assessed. The loss arising out of injury to reputation of a person cannot be compensated in terms of money, but for this reason alone, courts do not decline to grant compensation. Ordinarily, in such cases just, fair and reasonable compensation is assessed and awarded to victim(s). There is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, who may on facts of each case and considering how for society would deem it to be a fair sum, determines the amount to be awarded to a person, who has suffered such damage. The general damages are those, which law will imply in every violation of a legal right. They need not be proved by strict evidence, as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of court should be satisfied that damages awarded, if not completely, satisfactorily compensated to aggrieved party. However, adequate care should be taken in this regard while dilating on the quantum of awards, thus, keeping in mind narrated principles and the nature of allegation in reference to society plus the status of appellant, the damages/compensation of Rs.3,00,000 is deemed appropriate and, in essence, it would be in interest of justice.

10. In view of what has been discussed above, this appeal is allowed, impugned judgment and decree of trial Court are set aside and while decreeing the suit of the appellant Rs.3,00,000 are awarded to him as damages. No order as to costs. AG/350/P Appeal allowed.