P L D 2013 Lahore 170 (PLP)

ABDUL SATTAR ASGHAR, J.

Through this Civil Revision under Section 115 of the Code of Civil Procedure 1908 petitioners have impugned the order and decree dated 22-9-2010 passed by learned Civil Judge, Okara whereby their plaint in the suit for recovery or damages on the basis of malicious prosecution was rejected under Order VII, Rule 11 of Code of Civil Procedure 1908. They have also assailed the judgment and decree dated 24-8-2012 passed by learned Additional District Judge, Okara whereby their appeal against the order and decree dated 22-9-2010 was dismissed.

2. It is argued by learned counsel for the petitioners that the impugned judgments and decrees passed by learned Courts below are passed in excess of jurisdiction against the settle principles of law; that the plaint was rejected by the learned trial Court during the trial when on the divergent pleadings of the parties issues had already been framed and examination in chief of tile petitioners' witnesses had been recorded; that both the learned Courts below passed the impugned judgments and decrees on wrong premises of law and facts causing miscarriage of justice and are liable to set aside.

3. Arguments heard. Record perused.

4. Perusal of the record transpires that respondent No.1 lodged case F.I.R. No.550/2006 dated 11-10-2006 under section 406, P.P.C., Police Station Chochak against the petitioners. During the police investigation the petitioners were found innocent and accordingly cancellation report dated 3-11-2006 was prepared by S.H.O. Police Station Chochak. Consequently petitioners lodged suit for damages on account of malicious prosecution against the respondents. The suit was resisted by respondents with the contentions that the police being connived have wrongfully declared the accused/petitioners innocent while making the cancellation report and that they have lodged a private complaint against the petitioners. It is not denied by the petitioners that private complaint on the same allegation is pending adjudication before the learned trial Court.

5. In Halsbury's Laws of England (Fourth Edition), Volume 45, Page 612 Para 1342 it is observed that a prosecution exists where criminal charge is made before a judicial officer or tribunal. A malicious prosecution is an abuse of the process of the Court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort the prosecution must have been malicious and terminated in favour of the plaintiff. In an action for malicious prosecution the plaintiff has to prove that:-- (i) he was prosecuted by the defendant of a criminal charge; (ii) the proceeding complained of terminated in his favour; (iii) the defendant instituted or carried on such prosecution maliciously or in other words the prosecution was instituted and carried on with a malicious intention; (iv) there was absence of reasonable and probable cause for such proceeding; and (v) he has suffered damage.

6. In this case mere cancellation report by the police officer does not amount to termination of prosecution in favour of the petitioners. In the peculiar circumstances of this case since the respondent No. 1 has also lodged a private complaint under section 200 of the Code of Criminal Procedure, 1898, pending trial against the petitioners, therefore, petitioners lack any cause of action to file the suit for recovery of damages for malicious prosecution merely on the basis of cancellation report of the police officer. Learned trial Court therefore has rightly rejected the plaint in terms of Order VII, Rule 11(a) of the Code of Civil Procedure, 1908. I do not find any factual or legal infirmity and jurisdictional defect in the impugned judgments and decrees passed by learned Courts below. Petitioners have no case to invoke the revisional jurisdiction of this Court.

7. For the above reasons, this petition having no merit is dismissed in liniiue. MWA/A-6/L Petition dismisse