P L D 1986 Karachi 476 (PLP)

2. Being aggrieved, the appellant has filed the present second appeal. I have heard the appellant, who has appeared in person and also Mr. A. Sattar Pinger, Advocate, who has appeared for respondent No.

1. Mr. Makhdoom Abdul Wah, Advocate appeared for respondent ho. 2, Government of Sind Mr. Munawwar Abbas addressed the Court as amicus curiae. With the assistance of the appellant and Mr. A. Sattar Pinger have gone through the entire record including the file of the criminal case arising out of F. I. R. No. 430/72 of S.I.T.E. Police Station State, v. Abdul Razzak under sections 147, 427 and 342, P.P.C.

3. Mr. Munawwar Abbas, as amicus curiae and Mr. A. Sattar Pinger, learned counsel for respondent No. 1, cited case‑law in regard to the tests, which are applied in cases relating to damages for malicious prosecution. Following judgments were cited :‑‑ (i) Abdul Rashid v. State Bank of Pakistan P L D 1970 Kar. 344. (ii) Abdul Wahab Khan v. Pakistan Aviation Limited P L D 1970 Kar. 757. (iii) Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 C L C 325. (iv) Abrat v. North Eastern Railway Co. (1883) 11 Q B D

440. In 11 Q B D 440, it was laid down that, in an action for malicious prosecution, the burden of proof as to all the issues arising therein lies upon the plaintiff and that the onus of proving the existence of such facts as tend to establish the want of reasonable and probable cause on the part of the defendant rests upon the plaintiff. In P L D 1970 Kar. 344, the requirements for establishing case for damages for malicious prosecution were enunciated. It was observed that in an action for malicious prosecution the plaintiff is under the onus to show that :‑ (a) he was prosecuted by the defendant on a criminal charge ; (b) the prosecution terminated in plaintiff's favour ; (c) the prosecution was malicious ; and (d) the prosecution was without reasonable and probable cause. In P L D 1970 Kar. 757, it was observed that the burden of proof in a suit for damages for malicious prosecution is heavy on the plaintiff and the plaintiff is not only required to prove that the prosecution ended in his favour but also that it was without reasonable and probable cause. In 1984 C L C 325, also it was observed that initial onus of proof in such case is on the plaintiff to satisfy the Court that his criminal prosecution was malicious and that the prosecution was without reasonable and probable cause. It was observed that a prosecution rests on the circum stances sufficiently strong and convincing to warrant a man of ordinary prudence to entertain an impression and belief that present accused was guilty of offence with which he was charged.

4. According to the report lodged by respondent No. 1 through the telegram, dated 1 U‑10‑1972, one incident had taken place on 7‑10‑1972, another on 9‑10‑1972 and the third one on the day the telegram was sent i.e. on 10‑10‑1972. However, in his evidence, respondent No. 1 Rauf Tabani Wali Muhammad referred to only the incidents of 7‑10‑1972 and not to any incident on any other day and in respect of the incident on 7‑10‑1972, according to his own deposition, he was not the eye‑witness but he was in his city office and he bad received information on phone that the workers had stopped the work at the Mill and they were led by the accused and the appellant. According to him, this telephonic message was conveyed to him by Abdul Aziz, Manager of his Mill. Later on when he went in the evening to the Mill he was told about the incident of the day by Manager Abdul Aziz and another director. Then he has clearly stated in his evidence that he had given the telegram on 7‑10‑1972. He also stated that his statement has been recorded on 7‑10‑1972 by the police. From the evidence given by respondent No. 1 the complainant, it is apparent that according to his own showing he was not the eye witness and that the eye‑witnesses were his Manager Abdul Aziz and a co‑director. Secondly his deposition shows that according to respondent No. 1, the incidents had taken place on 7‑10‑1972 and that he sent the telegram on 7‑10‑1972 and his statement had also been recorded by the police on the same day i.e. 7‑10‑1972. The record clearly establishes that no telegram was sent on 7‑10‑1972. The telegram was sent on 10‑10‑1972 and it was received in S.I.T.E. Police Station on 11‑10‑1972. If the telegram dated 10‑10‑1972 had not reached the Police Station before 11‑10‑1972 and no other information had been laid before the Police, it is obvious that investigation by the police would not have taken place prior to 11‑10‑1972. No question, therefore, arose of the statement of the respondent No. 1 being recorded by the police on 7‑10‑1972. In the final challan submitted by the police the names of Manager Abdul Aziz and co‑director are not shown. It leads to the inference that they were not eye‑witnesses or that they could not depose about the incident, subject‑matter of the F.I.R.

5. There are various contradictions in the F. I. R. and the evidence given by the respondent No. 1 (the complainant) before the Magistrate. His statement in the evidence that he had given the telegram on 7‑10‑1972 and that his statement had also been recorded by the police on 7‑10‑1972 have been found to be false. The names of ?Manager Abdul Aziz and co director do not appear in the final challan as prosecution witnesses where as according to the evidence of the respondent No. 1, these two persons were eye‑witnesses. If the evidence given by the respondent No. 1 was correct, the said two persons would have been' the star‑witnesses of the prosecution. If, according to the Investigating Agency. these two persons, namely, Manager Abdul Aziz as well as the co‑director. were not eye‑witnesses of the incident, the entire version given by the respondent No. 1 becomes false. If, on the other hand, Manager Abdul Aziz and the co‑director were eye‑witnesses but they did not come forward during the investigation to give their statement to the police, then also the intention of filing the F. I. R. appears to be to harass the appellant and other accused i.e. to get them involved in criminal proceedings so that they may suffer for a long period on account of facing criminal charges. The case remained pending against the appellant before the Magistrate for nearly 2 years and all this was on account of the complaint filed by the respondent No. 1 which, on the basis of the material on record appears to have been filed for ulterior motive to harass the appellant and others.

6. Referring to the judgment, dated 8‑8‑1981 of the trial Court it may be observed that the documents on record were not considered and the trial Court dismissed the suit on being impressed by the fact that the appellant had been discharged under section 253, Cr. P.C. and the fact that according to the trial Court, the production of challan by the police before the Magistrate itself shows that a prima facie case was made out by the police for cognizance of the Court for which respondent No. 1 should not be blamed about the consequences. The mere fact that challan had been presented by the police before the Magistrate and/or that the appellant had been discharged under section 253, Cr. P. C. for want of prosecution are not fatal to the case for damages for malicious prosecution. The trial Court is required to consider the pleadings as well as documentary evidence brought on record and then come to the conclusion whether the tests required to be fulfilled for making out a case for grant of damages for malicious prosecution had in fact been satisfied or not. This exercise has neither been undertaken by the trial Court nor by the learned IInd Additional District Judge Karachi. The learned IInd Additional District Judge Karachi, has also given the same reasons for dismissing the appeal of the appellant. In my view on the evidence on record, which has not been considered by the two Courts below, the four tests mentioned in P L D 1970 Kar. 344 had been satisfied and as such the appellant had made out a case that he had been prosecuted by the respondent No. 1 maliciously, and therefore, he is entitled to the award of damages for malicious prosecution.

7. The next question to determine is about the quantum of damages. In all a sum of Rs. 50,000 has been claimed as damages under the following heads :‑ (i) Due to being jobless. Rs. 5,000 (ii) Due to lowering down prestige, and honour of the appellant in the eyes of the public. Rs. 20,000 (iii) Due to undergoing mental, physical and moral torture. Rs. 23,000 (iv) Miscellaneous expenses. Rs. 2,000 Total Rs.50,000 According to the appellant, he comes from a respectable family of Karachi and he was working as weaving clerk in the Mill of respondent ,e No.

1. No written statement was filed by respondent No.

1. The assertion that the appellant comes from a respectable family of Karachi has gone uucontroverted. Appellant's services had also been terminated in November, 1972, after lodging of the F.I.R. by respondent No.

1. On a question from the Court, learned counsel of the respondent No. 1, on instructions, stated that reasons for termination of appellants' service were his involvement in criminal offences for which respondent No. 1 had lodged the F.I.R. It is apparent that, but for the criminal case launched by the respondent No. 1, the appellant would not have been dismissed from service. Then, on account of a criminal complaint lodged with ulterior motive to ha‑MAs the appellant. the appellant was arrested at 2‑00 a.m. in the night and remained in custody for nearly 16 days. No amount of money can fully compensate a citizen for deprivation of his liberty for 16 days without any pluasible reason or cause. In my view, the sum of Rs. 50,000 claimed by the appellant is not even a fair compensation for the arrest and detention of the appellant and facing criminal proceedings for a period of nearly 21 years but this is the amount which he has claimed and I have no hesitation in observing that he is entitled to this amount as damages for malicious prosecution.

8. The impugned judgments of the learned Civil Judge and the IInd Additional District Judge Karachi dismissing the suit as against respondent No. 1 are set aside, the suit filed by the appellant for sum of Rs.50, 000 is decreed in the sum of Rs. 50,000 in favour of the appellant/plaintiff as C against the respondent No. 1 only. The appellant will also be entitled to costs as against respondent No.

1. This appeal is dismissed as against respondent No.

2. A. A. Order accordingly.