2014 C L D 111
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
MUHAMMAD RASOOL ---Appellant
Versus
ABDUL GHAFOOR ---Respondent
Regular First Appeal No.138 of 2010, decided on 25th July, 2013.
(a) Malicious prosecution ---
----Suit for damages ---Plaintiff filed suit for damages on the ground that he was acquitted of
the charge in F.I.R. lodged by the defendant in relation to snatching of a sale agreement ---
Suit was partially decreed by the Trial Court ---Validity---Trial Court had based its findings
on certain documents but said documents were neither tendered in evidence nor exhibited ---
Documents neither tendered in evidence nor produced and exhibited could not be relied ---
Such documents could not be made bas is for decision of a lis rather were treated as non -
existent ---Defendant was not afforded opportunity of cross -examination on said documents --
-Trial Court could neither consider such documents as a valid piece of evidence nor same
could be used against the defendant ---Documents were illegally taken into consideration and
were believed though were not referable ---Plaintiff had failed to prove the case by producing
cogent and confidence inspiring evidence and also failed to justify the compensation
demanded o n various counts ---Defendant was right to lodge the report as there was a
probable cause for lodging the same ---Prima facie, there was no malice on the part of
defendant ---Trial Court did not take into consideration the basic elements on the basis of
which suit for malicious prosecution could be accepted or rejected ---No doubt plaintiff had
proved that there was a case against him and he was arrested but rest of elements could not
be proved by him ---Plaintiff was required to prove want of reasonable and pro bable cause for
prosecution and defendant acted maliciously ---Plaintiff had failed to prove elements entailing
him for the decree prayed for ---Defendant had succeeded to prove that he acted with
reasonable and probable cause ---Trial Court mis -appreciated t he facts, mis -applied the law
and mis -read the evidence ---Findings drawn by the Trial Court being perverse and un -
sustainable could not be maintained ---Appeal was accepted and judgment and decree passed
by the Trial Court were set aside and suit was dismis sed.
(b) Malicious prosecution ---
----Elements to be taken into consideration ---Elements on the basis of which suit for
malicious prosecution could be accepted or rejected were; the prosecution of the plaintiff by
the defendant; there must be a want of reasonable and probable cause for that prosecution;
the defendant must have acted maliciously i.e. with a improbable motive and not to further
the ends of justice; the prosecution must have ended in favour of the person proceeded
against; it must have cau sed damage to the party proceeded against and proceedings had
interfered with plaintiff's liberty and had also effected his/her reputation.
Muhammad Ilyas Mughal for Appellant.
Ajmal Khan Kakar for Respondent.
Date of hearing: 30th April, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the
judgment and decree dated 20th July, 2010 passed by the Civil Judge -VII, Quetta whereby
the suit filed by the respondent/plaintiff against the appellant/ defendant was partly decreed
and the appellant was directed to pay Rs.800,000 (Rupees eight lacs only).
2. Facts relevant for the disposal of instant appeal are that the respondent/plaintiff
instituted a suit for damages of Rs. 20,50,000 (Rupees twenty lacs and fifty thousa nd only)
against the appellant in the Court of Civil Judge -VII, Quetta. It was averred in the plaint that
the plaintiff/ respondent is owner of the property No.104, Intiqal No.697, measuring 0 Rod,
29 Poles, situated at Mohal Viyala, Kuchlak, Tappa Quetta. The appellant started interfering
in the above -mentioned property, which resulted in filing a civil suit before the Civil Judge -
II, Quetta. The suit was contested by the appellant by way of filing written statement,
wherein he raised the plea that the sai d property was purchased by him from the
respondent/plaintiff through sale agreement. However; when the Court directed him to
produce the sale agreement and witnesses, the appellant/defendant did not produce the sale
agreement on the ground that the same w as snatched by respondent/plaintiff. In this regard
the appellant/defendant also lodged F.I.R. No.136 of 2008, with Police Station Civil Line,
Quetta. According to plaintiff/ respondent though he was acquitted of the charge in F.I.R.
case by learned Judici al Magistrate -IV, Quetta but owing to the registration of F.I.R.,
besides, suffering mental torture his reputation was damaged in the society and he also
suffered irreparable loss, hence the plaintiff claimed damages of Rs.20,50,000.
3. The suit was cont ested by the appellant/defendant the way of filing written statement
wherein besides raising certain preliminary legal objections the claim of plaintiff/ respondent
was repudiated on merits as well.
4. The learned trial Court, out of the pleadings of par ties framed following issues for
determination: --
(i) Whether the suit is not maintainable in view of Legal Objections raised by the
defendant in his written statement as A to I?
(ii) Whether the plaintiff is entitled for recovery of amounting (sic) Rs.20,50,000
as damages?
(iii) Whether the plaintiff is entitled for relief claimed for?
(iv) Relief?
5. Thereafter, the parties were directed to adduce evidence in support of their respective
claims; whereupon the plaintiff produced three P.Ws. and got recorded his own statement. In
rebuttal, the appellant/defendant examined one witness and his attorney also entered in the
witness box. The learned trial court after hearing the parties and evaluating the evidence
partly decreed the suit to the extent of Rs.800,000 as damages vide judgment and decree
referred to hereinabove.
6. The learned counsel for the appellant contended that the judgment and decree
impugned herein is result of misreading, non -reading and mis - appreciation of evidence, as
such; th e same is not sustainable under law and liable to be interfered with by way of setting
aside the same. Learned counsel stressed that the trial Court while deciding the matter
overlooked the settled principles of law and at its own calculation the matter wa s decided.
Learned counsel maintained that the respondent badly failed to prove his claim by producing
trustworthy, confidence inspiring and tangible evidence but the trial court illegally,
unlawfully and without any legal justification while rejecting cla im of Rs.20,50,000 decreed
the suit to the extent of Rs.800,000 which too, without assigning any reason. Learned counsel
further argued that the trial Court passed decree of Rs.800,000 in favour of respondent on the
ground that he was acquitted of the char ge in F.I.R. No.136 of 2008, but the trial court failed
to take into consideration that respondent was acquitted of the charge in said case on the
basis of benefit of doubt and not on the ground of malice in lodging the F.I.R.
On the other hand learned counsel for the respondent strenuously opposed the appeal
and argued that no misreading, non -reading or mis -appreciation of evidence could be pointed
out by the learned counsel for the appellant. Learned counsel stressed that the trial Court
rightly decree d the suit because the appellant illegally, unlawfully and without any
justification lodged a false F.I.R. against the respondent due to which the reputation of
respondent was seriously damaged and he sustained mental torture and agony. The
respondent prov ed his case by producing trustworthy, confidence inspiring and
straightforward evidence and the court below had no option but to decree the suit. No
illegality or irregularity could be pointed out by the Counsel for appellant in the judgment
and decree imp ugned, as such; the appeal is liable to be dismissed.
7. We have considered the arguments advanced by the parties' learned counsel and
perused the record of the case. In our considered opinion the trial Court mis -appreciated the
facts, mis -applied the la w, mis -read the evidence and, thus, the findings drawn by the trial
Court being perverse and un -sustainable cannot be maintained. As far as issue No.1 is
concerned, the findings drawn by the trial court are misconceived. While dealing with this
issue, it w as observed that the objections raised by the defendant are purely legal and involve
mix question of law and facts but simultaneously it was held that the objections were raised
only to have some objections and there is no logic behind it. The findings are self-
contradictory, if, the objections were involving mix question of fact and law then in such an
eventuality the objection should have been dealt with by forwarding plausible reasons and
cogent legal references.
8. Now adverting to issue No.2 i.e. Whe ther the plaintiff is entitled for recovery of
amounting (sic) Rs.2,50,000 as damages? the issue has been decided at the strength of ocular
account furnished by three P.Ws. and some un -produced documents. So far ocular account is
concerned; the statements lack legal substance for a couple of reasons. Firstly, because
P.W.1 is brother of the plaintiff and on that capacity he shares with the benefit and loss of the
plaintiff. As far as the loosing of the job is concerned, it appears that during the tenure of his
employment he was served with various notices to improve his performance. As far as social
status of plaintiff is concerned, P.W.1 in reply to a question stated as under: --
P.W.2 is brother -in-law of plaintiff. He has not stated in his statement that plaintiff
has lost his grace, respect and reputation in the society. He has also admitted that Abdul
Ghafoor is not a political, social or religious leader. He appears to be highly interested and
seems to be more loyal to king then the king himself. This fact can be gathered from
following portion of his statement: --
Further the caliber of the plaintiff can be guessed from the following. The statement
of P.W.2 is also not above board. Besides, in reply to a question, the witness stated as under: -
-
As far as the statement of P.W.3 is concerned, he has not stated anything qua the
quantum of loss sustained by the plaintiff. In reply to questions he stated as under: --
9. Besides, the ocular account, the trial court has based its fi ndings on certain
documents, but the said documents were not tendered in evidence nor exhibited. The law is
settled that a document neither tendered in evidence nor produced and exhibited cannot at all
be relied upon. Such a document cannot be made basis f or decision of a lis rather are treated
as non -existent. Admittedly, the appellant was not afforded an opportunity of cross -
examination, so the trial court without providing opportunity of cross -examination to the
appellant could have not considered the do cuments as a valid piece of evidence nor could the
documents be used against the appellant. So the documents were illegally taken into
consideration and believed which were/are neither entertainable now referable and
admissible for the short reason mention ed hereinabove. The plaintiff utterly failed to prove
the case by producing cogent and confidence inspiring evidence and also failed to justify the
compensation demanded on various counts. As far as the loosing of the job is concerned, the
evidence produce d by the plaintiff is not sufficient for decreeing the suit. So much so, the
plaintiff himself has admitted that he has been served with various notices to improve his
performance. For the sake of convenience, relevant portion of his statement is reproduce d:--
10. Besides, P.W.3 has admitted that the company has never issued notice to respondent
for his ill -performance because he was attending the court. It is pertinent to mention here that
apart from F.I.R. lodged against the plaintiff, the plaintiff has been filing suits against other
persons and the appellant as well. Similarly, as far as financial loss, mental torture and agony
are concerned, neither the counsel has been examined nor any medical certificate has been
placed on record. Moreover, the trial Court failed to analyze and visualize the fact that as to
whether there was any improbability, for lodging of F.I.R. and if so whether the appellant
was not justified for making report. Plaintiff has admitted that he came to know about the
lodging of the report on 27th of May, 2006, meaning thereby the plaintiff was well aware
that a report to such effect has been lodged against him, but he kept quiet, felt satisfied with
the allegations levelled against him and filed the suit in the year 2009, so loo king the case of
plaintiff in this perspective the question arises as to whether the plaintiff was aggrieved of
the facts narrated in the report or from the registration of the F.I.R. We understand that the
basic cause of action which could have arisen to plaintiff must have been from the lodging of
'Roznamcha' which finds mention the facts that subsequently culminated in the lodging of
F.I.R. but the plaintiff neither protested nor filed a suit for damages at the relevant time.
Secondly, it is also mention ed in the statement of the plaintiff that a photo state copy of
stamp paper was produced before the trial Court by the appellant claiming it to be a sale deed
and executed by the plaintiff. With such backdrop, we think that the appellant was right to
lodge the report, as there was a probable cause for lodging of report, prima facie there was no
malice on the part of appellant. The house in question was admittedly in possession of the
appellant. Plaintiff claims to have been arrested after two years and thre e months of lodging
of 'Roznamcha'. If there was any grievance of the plaintiff against facts narrated in the
'Roznamcha' report, he could have sought quashment then and there prior to the lodging of
F.I.R. Moreover, it appears that the trial Court while d eciding the lis did not take into
consideration the basic elements on the basis of which suit for malicious prosecution can be
accepted or rejected. For the sake of connivance the same are reproduced herein below: --
"(a) The prosecution of the plaintiff by the defendant.
(b) There must be a want of reasonable and probable cause for that prosecution.
(c) The defendant must have acted maliciously i.e. with a improbable motive and not to
further the ends of justice.
(d) The prosecution must have ended in favour of the person proceeded against.
(e) It must have caused damage to the party proceeded against."
Similarly, while granting or refusing the damages, the following principles are to be
adhered to: --
"(i) That the plaintiff was prosecuted by the defendant.
(ii) That the prosecution ended in plaintiffs failure.
(iii) That the defendant acted without reasonable and probable cause.
(iv) That the defendant was actuated by malice.
(v) That the proceeding had inferred with plaintiffs liberty and had also effected her
reputation and finally.
(vi) That the plaintiff had suffered damages."
11. No doubt the plaintiff has proved that there was a case against the plaintiff and the
plaintiff was arrested, but rest of the elements could not be proved by the plaintiff Besides, in
a suit for damages the plaintiff is required to prove the want of reasonable and probable
cause for prosecution and, secondly it is to be shown that the defendant must have acted
maliciously i.e. with improbable motive and not to have acted in aid of the justice. In our
considered opinion the plaintiff has failed to satisfy the above stated two elements entitling
plaintiff for the decree prayed for whereas, to the contrary, the appellant has succeeded to
prove that he did act with reasonable and probable cause. Admittedly the appellants was a
defendant in the suit filed by the plaintiff and the appellant being admittedly in possession of
the premises and claiming to be a bona fide purchaser th ereof was in possession of a
document ('sale deed') claimed to have been executed by the plaintiff, lodged 'Roznamcha'
report against the plaintiff to the effect that the said document has been snatched by the
plaintiff. The photocopy of the said document was produced by the appellant in the trial
Court during the proceedings of civil suit filed by the respondent. So, whether a positive
inference regarding an attempt to deprive the appellant of such piece of evidence could not
be drawn, as the production of said document might have had prejudiced and jeopardized the
case of the plaintiff. The allegation of snatching of document if looked in this context and
appreciated with this perspective then it can safely be held that the lodging of 'Roznamcha'
report du ring the pendency of civil suit does not appear to be based on mala fide and ill -will.
In such state of affairs, the appellant/defendant cannot be accused to have acted without
reasonable and probable cause. Similarly, the defendant/appellant being in poss ession of
property and the allegation of snatching document would not mean that defendant was
actuated with malice, therefore, it can confidently be observed that neither the appellant
acted without reasonable and probable cause nor he was actuated with ma lice but the trial
Court while deciding the issue never touched these principles which has caused great
prejudice to the case of appellant. In the wake of given circumstances, we are of the
considered opinion that the plaintiff has not been able to prove h is case and the lodging of
F.I.R. by the appellant against the respondent was based on reasonable and probable cause,
hence the findings on issue No.2 are hereby reversed.
12. So far rest of the issues are concerned, since findings on main issues have be en
reversed, therefore rest of the issues have become redundant.
For the foregoing reasons, we are of the considered opinion that respondent failed to
prove his claim by producing tangible, confidence inspiring and straightforward evidence
and the trial court by misreading, non reading and mis -appreciating the evidence partly
decreed the suit, as such; the appeal is accepted. Judgment and decree dated 20th July, 2010
passed by the Civil Judge -II, Quetta are set aside and the suit filed by the respondent is
dismissed. Decree sheet be prepared.
AG/79/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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