PLJ 2018 Quetta 19 (DB)
Present : MUHAMMAD EJAZ SWATI AND ABDULLAH BALOCH , JJ.
IBRAHIM SHAH --Appellant
versus
PERVEZ RANA-- Respondent
R.F.A No. 140 of 2009, decided on 30.5.2017.
Malicious Prosecution --
----Suit for damages --Ingredients --Proof of --Validity --In a suit for malicious prosecution, the
plaintiff must prove three things --One that the plaintiff was prosecuted by the defendant and that
prosecution terminated in plaintiff’s favour --Two that the de fendant was actuated by malice and
three that the defendant acted without reasonable and probable cause unless the plaintiff
succeeds in proving all the above three points he cannot succeed.
[P. 22] A
Malicious prosecution --
----Suit for damages --Lodging of criminal case --Acquittal--Effect --Held: Mere filing of criminal
case and acquittal of the appellant by extending him benefit of doubt is not sufficient by itself to establish case for malicious prosecution against the respondent --R.F.A. was dismissed. [P. 23]
B
Mr. Jamil Lodeen, Advocate for Appellant.
Mr. Abdul Sattar, Advocate for Respondent.
Date of hearing: 24.4.2017.
J
UDGMENT
Abdullah Baloch, J. --This judgment disposes of R.F.A. No. 140 of 2009 filed by the appellant
Ibrahim Shah Son of Akhtar, against the judgment & decree dated 7th August 2009(hereinafter
referred as “the impugned judgment & decree”) passed by learned Civil Judge -III Quetta
(hereinafter referred as, “the trial Court”), whereby the suit filed by the appellant -plaintiff for
recover y of Rs.36,00,000/ - was dismissed.
2. Facts of the case are that on 13th April 2007 the appellant -plaintiff filed a suit for recovery of
Rs.36,00,000/ - against the respondent -defendant contending therein that the respondent lodged
an FIR against him Bearing No. 112/2005 under Section 353, 342, 504, 506. 427, 186, 148,
149/34, PPC, with the allegations that the appellant alongwith Mir Abdul Wadood Raisani and
armed persons came to defendant’s property situated at Samungli Road, Quetta and demolished the new ly constructed wall; that after investigation, the appellant was challaned before the
learned Judicial Magistrate- I Quetta, who after full -fledged trial acquitted the appellant
alongwith other accused persons vide judgment dated 23
rd December 2006; that the above
mentioned frivolous proceedings were initiated by the defendant with intent to drag the appellant
into false litigation, to harass and humiliate his reputation and made him bound to appear on each
and every date of hearing before the trial Court wi thout any fault on his behalf; that due to
malicious proceedings, the appellant suffered mental torture, disrepute, harassment and business
losses and harm to his reputation in the society as well as in the tribe. Hence, with the above
averments suit for r ecovery of Rs.36.00,000/ - was filed as damages.
3. The suit was contested by the respondent -defendant on legal and factual grounds by means of
filing written statement, raised objections regarding maintainability of the suit. The trial Court out of the pl eadings of parties framed the following issues:--
(i) Whether the suit of the plaintiff in view of the Preliminary Legal Objections A to D of
defendant is not maintainable?
(ii) Whether plaintiff was dragged into a false criminal litigation by the defendan t?
(iii) Whether due to said case plaintiff has received a loss of Rs.25,00,000/ - in his business?
(iv) Whether during the said case plaintiff has received mental torture and loss of reputation?
(v) Whether plaintiff is entitled for the relief claimed?
(vi) Relief?
4. To prove its case, the plaintiff -appellant produced six witnesses in support of his case, besides
recording his own statement, whereas in rebuttal the defendant besides recording his own
statement produced two witnesses. On conclusion of tria l and after hearing arguments, the
learned trial Court vide impugned judgment & decree dated 7th August 2009 dismisscd the suit,
whereafter instant appeal has been filed.
5. Learned counsel for the appellant contended that the impugned judgment and decree passed
by the learned trial Court suffers from misreading and non- reading of evidence, which is liable to
be set aside; that the appellant in support of his case produced confidence inspiring evidence,
which were not taken into consideration to its true perspective; that the respondent had lodged a
false and frivolous FIR against the appellant and the appellant was honorably acquitted of the
charge; that due to the malicious litigation, the appellant has caused financial loss as well as,
suffered fro m serious mental torture; that the learned trial Court without proper appreciation of
evidence dismissed the suit of the appellant in an arbitrary manner; that the judgment and decree
passed by the learned trial Court is liable to be set aside.
6. On the other hand, the learned counsel for the respondent strongly opposed the contentions so
advanced by the learned counsel for the appellant and contended that the appellant has badly failed to prove its case through evidence; that the criminal case was regist ered against the
appellant when he had committed such offences, however, he was acquitted of the charge on the ground of benefit of doubt for the reasons and contradictions having been observed in the
statements of the prosecution witnesses as such, he could not claim for honorable acquittal; that
the appellant was failed to produce any documentary evidence with regard to his financial loss,
mental torture and damages; that the learned trial Court after proper appreciation of evidence had rightly dismissed the suit of appellant.
7. Heard the counsel for the parties and perused the record minutely, the record reveals that the respondent registered a criminal case vide FIR No. 112 of 2005 u/Ss. 353, 342, 504, 506, 427,
186, 148, 149/34, PPC, against the appel lant with certain allegations and thereafter, the
prosecution produced its witnesses against the appellant in the Court of learned Judicial Magistrate- II, Quetta, who after full -fledged trial acquitted the appellant extended benefit of
doubt vide judgment dated 23.12.2006.
8. In a suit for a malicious prosecution, the plaintiff must prove three things. One that the plaintiff was prosecuted by the defendant and that prosecution terminated in plaintiff’s favour. Two that the defendant was actuated by malice and three, that the defendant acted without reasonable and probable cause unless the plaintiff succeeds in proving all the above three points, he cannot succeed. In this reference we have to consider whether plaintiff has proved that respondent acted without reasonable and probable cause, because want of reasonable and probable cause is a necessary ingredient in an action for malicious prosecution and that acquittal gained from criminal Court does not relieve the plaintiff from necessarily of adducing evide nce
of “want of reasonable or probable cause”. The mere acquittal of charge of a criminal offence alone is not sufficient to claim damages. In the case reported as Abdul Raoof V/s Abdul Razzaq PLD 1994 SC 476. The Hon’ble Supreme Court of Pakistan set aside the judgment of the High Court whereby suit of plaintiff for recovery of damages on the basis of malicious persecution was decreed. In the said case an FIR was registered on the telegram sent by the defendant. The plaintiff was discharged by the trial Co urt in the said criminal case which led him to file suit for
damages and malicious prosecution, despite discharge of the plaintiff, the Hon’ble Supreme Court of Pakistan held that police after investigation had submitted challan against the plaintiff, therefore, it could not be said that the defendant acted without reasonable or probable cause.
9. On perusal of evidence produced by the appellant in the instant case, we are of the opinion that besides PWs. the statement of the appellant is also silent with regard to the prosecution that defendant acted without any reasonable or probable cause.
10. Even otherwise, the appellant was acquitted on the basis of benefit of doubt and not on
the ground that the plaintiff proved his innocence before the trial Court . The suit for damages
can only be decreed when all the ingredients as mentioned hereinabove successfully established, which is lacking in the instant case. Mere filing of criminal case and acquittal of the appellant by extending him benefit of doubt is not sufficient by itself to establish case for malicious prosecution against the respondent.
11. The judgment and decree passed by the learned trial Court was also evaluated thoroughly by us, which does not suffer from any irregularities and illegalities ne ither the same is
perverse nor ridiculous. The learned trial Court had passed a well -reasoned judgment in
accordance with law, after discussing each and every issue and evidence brought on record whereas, the learned counsel for the appellant has failed to point out any material misreading
and non- reading of evidence by trial Court.
For the reasons discussed hereinabove, we are not inclined to accept this appeal, which is accordingly dismissed being devoid of merit. Parties are directed to bear their own cost.
(W.I.B.) R.F.A. dismissedThis 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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