2014 M L D 95
[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 o f 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 ca used
damage to the party proceeded against and proceedings had interfered with plaintiff's liberty and
had also affected 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 part ly 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 thou sand 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 sa id 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 was
snatched by respondent/ plaintiff. In this regard the appellant/defendant also lodged F.I.R.
No.136/08, with Police Station Civil Line, Quetta. According to plaintiff/respondent though he
was acquitted of the charge in F.I.R. case by learned Judicial M agistrate -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 conteste d 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 parties 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 recor ded 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; the 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 was 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 claim of Rs.2 0,50,000 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
charge 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 fo r 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 decreed
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 proved his cas e 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 impugned, 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 law, misread 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 th is issue, it vas 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. Th e 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. Whether 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; t he 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 than 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 PW.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 findings on cer tain 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 for decision o f 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 documents 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 mentioned hereinabov e.
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
losing of the job is concerned, the evidence produced by the plain tiff 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 reproduced: --
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 s uits 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 looking the case of p laintiff 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 hav e 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 mentioned in the statemen t 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 th ere 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 three
months of lodgin g 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 deciding the lis di d 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 p erson 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 eff ected 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 plain tiff. 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 act ed 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
reasonab le 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 thereof was in possession of a document (`sale dee d') 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 je opardized 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 during 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
possession of property and the allegation of snatch ing 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 malice but the trial Court
while deciding the iss ue 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 his case and the lodging of F.I.R. by the appell ant 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 been 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 -appre ciating 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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