P LD 2020 Balochistan 38
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
MUHAMMAD KHAN KURD---Appellant/Plaintiff
Versus
ARBAB MUHAMMAD HASHIM ---Respondent/Defendant
Regular First Appeal No.93 of 2009, decided on 17th September, 2019.
(a) Malicious prosecution ---
----Damages, recovery of ---Essential elements ---Criminal case was got registered against the
plaintiff wherein he was discharged---Plaintiff filed suit for recovery of damages on the basis
of malicious prosecution but the plaint wa s rejected ---Validity ---Prosecution of a criminal
offence would only provide a cause for damages for malicious prosecution to the acquitted accused if it was based on malice of the complainant and was without any reasonable and probable cause--- Civil case between the parties was pending before Civil Judge ---
Prosecution of a criminal offence was not without probable and reasonable cause, in circumstances ---Plaintiff was acquitted from criminal case on the ground that prosecution
had failed to establish its c ase beyond reasonable doubt ---Nothing was on record that
defendant had involved the plaintiff in criminal case with malice and without probable or
reasonable cause--- Acquittal of plaintiff from the criminal case was not on merit rather it was
on technical ground--- Plaintiff was not entitled for any damages, in circumstances ---Plaintiff
had filed the suit alter lapse of four years which was barred by time---No illegalities or
irregularities had been pointed out in the impugned judgment and decree passed by t he Trial
Court ---Appeal was dismissed, in circumstances.
Abdur Rauf v. Akhtar Razzaq and another PLD 1994 SC 476 rel.
(b) Limitation Act (IX of 1908)---
----S. 23 ---Suit for compensation on the basis of malicious prosecution---Limitation ---
Limitation for filing a suit for compensation on the basis of malicious prosecution was one
year and same would start from the date of acquittal of the plaintiff or the prosecution was otherwise terminated.
(c) Limitation Act (IX of 1908)---
----S. 3 ---Suit instituted after limitation period ---Effect ---Suit instituted after limitation
period would be subject to the provisions of Limitation Act, 1908 irrespective of the fact that the limitation had been pleaded as defense or not ---Court was to decide the question of
limitation first and only thereafter proceed to decide the matter on merits ---Suit which was
barred by time was to be dismissed even if nobody had pointed out such lacuna ---If
proceedings brought before the Court were barred by time then Court could not assume
jurisdiction and would not have jurisdiction in the matter unless delay was condoned first ---
Disposal of suit on merits alone was not sufficient for presuming that delay had been
condoned---If suit was barred by limination then plaint was to be rejected f orthwith without
resorting to the evidence or framing of any issue.
Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153
rel.
(d) Malicious prosecution--
----Suit for recovery if damages ---Scope ---Basic elements on the basis of which suit for
recovery of damages for malicious prosecution could be accepted or rejected detailed:
Following were the basic elements on the basis of which suit for recovery of
malicious prosecution could be accepted or rejected:
(a) The prosecution of the re spondent/plaintiff by the petitioner/defendant.
(b) There must be a want of reasonable and probable cause for that prosecution.
(c) The petitioner/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.
Muhammad Akram's case PLD 1990 SC 28 rel.
(e) Malicious prosecution ---
----Meanings.
Following are the meanings of term "malicious prosecution".
The institution of a criminal or civil proceeding for an improper purpose and without
probable cause.
The institution of any action or proceeding, either civil or criminal, against another
maliciously and with out probable cause.
A tort which provides redress to those who have been prosecuted 'without reasonable
cause' and with malice.
Black's Law Dictionary; Balentine's Law Dictionary and Muhammad Yousaf v. Abdul
Qayyum PLD 2016 SC 478 rel.
(f) Words and phr ases---
----"Acquittal" and "discharge" ---Distinction ---Acquittal means to declare a "person
accused of a crime to be innocent", while on the contrary discharge means "to release
someone from custody" or allow someone to leave, or "to pay off".
Syed Ayaz Zahoor and Mrs. Robina Shaheen for Appellant.
Gul Hassan Tareen for Respondent.
Date of hearing: 20th August, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---This judgment disposes of R.F.A. No.93 of 2009
filed by the appellant namely Mahmood Khan Kurd son of S ardar Deernar Khan Kurd
against the judgment and decree dated 11.06.2009 hereinafter "the impugned Order") passed by learned Senior Civil Judge -II, Quetta, (hereinafter "the trial Court") whereby suit filed by
the appellant (plaintiff) for recovery of Rs.3 crore was dismissed.
2. Siccinctly the facts of the case are that on 19 -5-2008 the plaintiff (appellant) filed a
suit for recovery of Rs.3 crore against the respondent (defendant) before the learned Senior Civil Judge -II, Quetta, averring therein that the respondent (defendant) lodged FIR against
him bearing No.76 of 2003 dated 14.04.2003 under sections 447, 448, 427, 34 P.P.C. registered with the Police Station Saryab, Quetta, with the allegation that the respondent (defendant) Arbab Muhammad Hashim owns his property at the corner of Arbab Karam
Khan Road Shah Zaman Road which include nine shops on the road and a plain piece of land behind it where a house consisting two rooms had been constructed. A gate in between the shops led to the land and the house. Mutation No.158, Ward No.8, Tappa Urban- II, Tehsil
Quetta of the said property was in his name. On 17.12.2002, the accused Mehmood Kurd, Irfan Buledi and Imran Buledi with intention to occupy the property closed the gate by erecting a wall inside the gate and made their way by breaking the wall between the said
property and Buledi house. On 14.04.2003 he saw that the accused Mehmood Ahmed Kurd with his men had removed the wall behind the gate of the property and was raising the height of the gate. It is further alleged in the report that the accused Mehmood Ahmed Kurd has kept his illegal possession over the said property through fraud and coercion. His accomplice was Mehmodo Hashmi, and after investigation, the challan was submitted before the learned Addi tional Judicial Magistrate -II, Quetta, who after framing the charge and recording
statement of two witnesses acquitted the appellant on the application under section 249- A
Cr.P.C. on 30.03.2004. It is the case of appellant (plaintiff) contended in his plai nt that the
above mentioned previous proceedings were initiated by the - respondent (defendant) with
intention 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 without any fault on his behalf and due to such malicious proceedings the appellant suffer mental
torture, disrepute, harassment and harm to his reputation in the society as well as in the tribe.
Lastly the plaintiff claimed amount o f Rs.3 crore as damages.
5. Notice was served upon the respondent (defendant). During the proceedings the
respondent (defendant) filed an application under Order VII, Rule 11, C.P.C. for rejecting of the plaint. After hearing the parties, the learned trial Court dismissed the suit of the plaintiff
(appellant) on 11.06.2009. Hence this appeal.
6. We have heard the learned counsel for the parties and have gone through the available
record with their assistance.
7. A perusal of the record shows that certain facts are undisputed between the parties,
for example, the respondent (defendant) is not denying that he lodged FIR against the
appellant (plaintiff) and as a result of same he was acquitted from the charge. In the given
circumstances, the quest ion which for determination before this Court is to see, as to whether
mere acquittal of the appellant in a criminal case would confer any right upon him to sue the
defendant/respondent for damages on the basis of malicious prosecution.
7(sic). By now there is no cavil with the proposition that the prosecution of a criminal
offence would only provide a cause for damages for malicious prosecution to the acquitted accused if it is based on malice of the complainant, and that too when the same is without
any reasonable and probable cause. The basic elements on the basis of which suit for
recovery of malicious prosecution could be accepted or rejected; -
(a) The prosecution of the respondent/plaintiff by the petitioner/defendant.
(b) There must be a want of reasonable and probable cause for that prosecution.
(c) The petitioner/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.
The apex Court laid down the following principles qua the granting or refusing
damages with regard to malicious prosecution in Muhammad Akram's case PLD 1990 SC 28 which are as follows: -
(i) That the plaintif was prosecuted by the defendant.
(ii) That the prosecution ended in plaintiff's failure.
(iii) That the defendant acted without reasonable and probable cause.
(iv) That the defendant was actuated by malice.
(v) That the proceeding had infer red with plaintiff's liberty and had also effected her
reputation.
(vi) That the plaintiff had suffered damages.
8. In order to comprehend the conceipt of malicious prosecution, it would be appropriate
to go behind its meaning and definition. The term 'mal icious prosecution' is defined in
Black's Law Dictionary as "The institution of a criminal or civil proceeding for an improper
purpose and without probable cause." Ballentine's Law Dictionary defines it as, "The institution of any action or proceeding, eit her civil or criminal, against another maliciously
and without probably cause". In Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478),
the august Supreme Court of Pakistan defined malicious prosecution as "a tort which
provides redress to those who have bee n prosecuted 'without reasonable cause' and with
malice".
9. In the case titled Abdur Rauf v. Akhtar Razzaq and another PLD 1994 SC 476 while
laying down the same principles has held as under: -
"(d) Malicious prosecution -
---Suit for --- Proof of existence of malice itself is not sufficient but should be
accompanied by proof of absence of reasonable and probable cause.
(f) Malicious prosecution -
Damages ---"Special Damages" could be awarded only on strict proof thereof '.
10. In the said judgment there is much stress and emphasis upon strict proof and non-
existence of probable and reasonable cause. In the case in hand although the appellant has claimed that his liberty was illegally interfered into with, he suffered mental torture, agony and irrepa rable loss to his good reputation and honor in the society due to the vindication and
humiliation at the hands of the respondent, but all these assertions made by him do not stand
proved with the help of any degree of evidence of a predominant nature. Rather the same stand falsified in view of the available record, the perusal of which also indicates that the appellant Mahmood Khan Kurd was charged for an offence under sections 447, 448, 427, 34, P.P.C. in Crime No.76 of 2003 lodged by the respondent (defendant) against him with the allegation that the appellant and absconding accused removed the wall behind the gate of property of the respondent (defendant) and was raising the height of the gate. It is also admitted by the appellant in his plaint that there was also civil dispute between the parties
and civil case was pending before the Civil Judge. The pendency of the civil suit in respect of the property in which the respondent (defendant) lodged FIR are indicative of the fact that the FIR of the respondent was not without probable and reasonable cause and his intention to discharge the prosecution of the appellant was not tainted with any malicious. Perusal of the judgment of the Additional Judicial Magistrate -II, Quetta, dated 30.03.2004 on which the
appe llant (plaintiff) is relying shows that the plaintiff was acquitted on account of the fact
that the prosecution failed to establish its case beyond reasonable doubt and the prosecution evidence has brought nothing against the accused persons and there is l ess chance of his
conviction in any offence. However, the said judgment is silent with regard to the malicious of the respondent (defendant) and also with regard to the falsehood of the FIR. The order of the learned Additional Judicil Magistrate -II, Quetta , also does not suggest that there was no
probable or reasonable cause for the respondent (defendant) to register FIR, therefore, reliance on this judgment does not discharge the burden of appellant (plaintiff) with regard to
the above six points and the a ppellant has also not proved, the damages by any stretch of
imagination so claimed by him.
11. Even otherwise, the acquittal of the appellant (plaintiff) in the said FIR was not on
merit by the trial Court, rather it was on technical ground, due to insuffi cient of evidence,
under section 249- A Cr.P.C. and as such he is not entitled to any damages. A cursory glance
on the contents of decision of the concerned Court makes it explicitly clear that the said
Court was exercising its power and jurisdiction under section 249- A Cr.P.C. for which no
stage is fixed. Meaning thereby that trial of the said FIR was not completed and certain proceedings were yet to be carried out. The said decision further reveals that the appellant was not acquitted, rather discharged. A t this juncture, another legal question crops up for
consideration is whether the termination of further proceedings and its ultimate culmination into the discharge of the appellant legally tantamount to his acquittal and can be made a valid base for claim ing damages, or the same embodies two different meanings. The definite
answer to the said question is that the acquittal and discharge are two different terminologies and are diametrically not synonymous. The acquittal means to declare a "person accused of a
crime to be innocent", while on the contrary discharge means "to release someone from custody" or allow someone to leave, or "to pay off". What can irresistibly be derived from
the aforesaid definition is that it was not an acquittal rather it tantamoun t to his discharge
under section 249- A Cr.P.C. for which no special damages can be claimed.
12. Admittedly, the learned trial Court did not discuss the issue of limitation i.e. whether
the suit of the appellant was barred by time. It is settled law that th e First Appellate Court
has all the powers under section 96, C.P.C. to reappraise the entire evidence on record.
13. It is stated earlier that the appellant. (plaintiff) was acquitted of the charge by the
learned Additional Judicial Magistrate- II, Quetta, on 30.03.2004, whereas he has filed the
suit for damages on 19.05.2008, after lapse of four years which therefore was barred by time.
14. According to the Article 23 of the Limitation Act, limitation for filing suit for
compensation of malicious prosecution is one year and the limitation starts from the date of
acquittal of the plaintiff or the prosecution is otherwise terminated. The reads as under:
Limitation Act.
Description of Suit. Period of Limi -tation Time from which period begins to
run.
23. For compensation for
a malicious prosecution. One year. When the plaintiff is acquitted, or the
prosecution is otherwise terminated.
15. Article 23 of the Limitation Act applies where the suit for damages claiming
compensation for malicious proceedi ngs. Suit for malicious prosecution must be filed within
one year from the date of acquittal of plaintiffs. The foundation of an action for malicious prosecution lies in the abuse of the process of the Court by wrongfully setting the law into motion and it is designed to discourage the provision of the machinery of justice for an
improper purpose. Whereas Section 3 of the Limitation Act provides that the institution of the suit after the limitation period shall be subject to the provisions of the Limitation Act
irrespective of the fact that the limitation has not been pleaded as defense. Section 3 is
reproduced herein below: -
Section 3 of the Limitation Act provides as under: -
"Dismissal of suit, etc., instituted etc., after period of limitation. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation h as not been set up as a
defence".
16. It is obigatory on the Court to decide the question of limitation first and only
thereafter proceed to decide the matter on merits. The Court is bound to address the question of limitation irrespective of the fact that whether it was agitated or not. A suit barred by time
should be dismissed even if nobody has pointed out such lacuna. If the proceedings brought before the Court are barred by time, the court cannot assume jurisdiction and shall have no jurisdiction in th e matter unless the delay is condoned first, and disposal of the suit on merits
alone is not sufficient for presuming that the delay was condoned. The suit/plaint is to be rejected forthwith even without resorting to the evidence or framing of any issues under Order VII, Rule 11, C.P.C. if it appears from the plaint that the suit is barred by limitation. While dealing with the issue of limitation in the case of Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) the Hon'ble Supreme C ourt has laid down
the following guidelines: --
"The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4
to 25 of that Act, be dismissed although limitation has not been set up as a defense. If
from the statement of the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleading of the parties. It imposes a duty
in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the prov isions being mandatory, it cannot be waived and even if waived
can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (ILR 38 Mad 374), where the defendants had pleaded the bar of limitation but the trial Court h ad held that they having admitted their liability for the
amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its
operation, or introduce exceptions not recognized by it". The same Court in subsequent case, Ramamurthy v. Gopayya (ILR 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provision s of the statute of
limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram (AIR 1940 Lah. 75), and held that "there is abundant authority in support
of the proposition that objections regarding limitation cannot be waive d and that even
if they are waived they can be taken up against by the parties waiving them or by the
Courts themselves."
17. The judgment and decree passed by the learned trial Court was also evaluated
thoroughly by us which does not suffer from any illegalities or irregularities neither the same is perverse nor ridiculous. The learned trial Court has passed a well reasoned judgment in accordance with law after discussing all aspects of the case.
For the reasons discussed herein above, we are not inclined to accept this appeal,
which is accordingly dismissed being devoid of merit. Parties are directed to bear their own cost.
ZC/115/Bal. Appeal dismisseThis 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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