NIAZ and otherss vs ABDUL SATTAR and others

ORDER

' CH. IJAZ AHMAD. J.-- Brief facts out of which the presentpetition arises are that respondent filed a suit for recovery of an amount to the tune of Rs,24,000 against the petitioners in the court of Civil Judge Faisalabad on 11-6-1997. The contents of the plaint reveal that respondent had filed the suit on the basis of malicious prosecution. The contents of plaint further reveal that real brother of respondent lodged F.I.R. No,454/96 at Police Station Dijkot against Muhammad Ilyas etc. Petitioner No,1 who is real brother of said Muhammad Ilyas registered a false cross-version at the aforesaid police station against respondent/ plaintiff on 30-7-1997 to damage case F.I.R. No,454/96. The contents of plaint further reveal that counter-version was found false after investigation.

Consequently the respondent was exonerated. Due to the said cross-version, the respondent's repudiation was badly affected and besides that he suffered from mental/physical agony and business loss. Expenses were also incurred on litigation. Petitioner filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial court framed the three issues which are mentioned in para. 3 of the judgment of the trial court.The trial court after recording the evidence of the parties dismissed the suit vide judgment and decree dated 26-7-2002. Respondent being aggrieved filed appeal in the court of Addl. District Judge who accepted the same vide judgment dated 22-1-2003. Petitioner being aggrieved filed Civil Revision No, 476 of 2003 in the Lahore High Court. The learned High Court dismissed the same vide order dated 2-4-2003. Hence, the present petition.

2. The learned counsel for the petitioners submits that first appellate court and revisional court had erred in law to decree the suit of the respondent against the petitioners by misreading and non- reading of the record and in fact-findings of the courts below were based on surmises and conjectures. He further submits that first appellate court and revisional court had decreed the suit of the respondent against the petitioner without adverting to the principle laid down by the superior courts. He further urges that first appellate court had erred in law to reverse the finding of the trial court and the judgment of the trial court was based on proper appreciation of evidence on record whereas the first appellate court had reversed the findings of the trial court-on surmises and conjunctures. He further urges that learned High Court had erred in law to decide the case against the petitioner without adverting to the Medico-legal Report Exh.DI which clearly shows that injuries were inflicted on Muhammad Sarfraz defendant No,5 in the plaint which was sufficient to establish a cross-version as observed by. The trial court vide judgment dated 26-7-2002 which finding was reversed by the first appellate court without adverting to the contents of Exh.DI/Medico-legal report.

3. We have given our due consideration to the contention of learned counsel of the petitioner and perused the record. It is better and appropriate to reproduce the basic elements on the basis of which suit for recovery for malicious prosecution could be accepted or rejected:--

(a) The prosecution of the plaintiff by the defendant.

(h) There must be a want of reasonable and probable cause for that prosecution.

(c) The defendant must have acted maliciously i,e, with 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.

4. This 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 plaintiff 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 inferred with plaintiff's liberty and had also affected her reputation and finally.

(vi) That the plaintiff had suffered damages.

5. It is better and appropriate to reproduce the basic facts inchronological order to resolve the controversy between the parties:--

(a) Real brother of respondent/plaintiff lodged F.I.R. No,454/96 at Police Station, Dijkot against Muhammad Ilyas etc.

(b) The said Muhammad Ilyas is real brother of defendant No,1/petitioner No, 1 .

(c) Petitioner/defendant No,1 got registered cross-version at police station against the respondent/defendant on 30-10-1997.

(d) After investigation, in presence of both the parties, the cross version was found false.

(e) Respondent/plaintiff was arrested in the cross-version and remained in jail for 15 days .Before being enlarged on bail.

(f) The investigation agency investigated cross-version in presence of both the parties and found the cross-version false.

(g) Respondent was discharged in the said case. Consequently after investigation, agency submitted qalandra against the petitioner No,1 before the competent court under section 182, P.P.C.

(h) Medico legal report qua the injured Sarfraz in counter-version was found to have been procured as result of self-sustained injury.

(i) Petitioner/defendant filed a complaint against the respondent before the competent court which was also dismissed.

(j) The trial court dismissed the suit vide judgment and decree dated 26-7-2002. The respondent/plaintiff filed appeal which was accepted and reversed the finding of the trial court vide judgment and decree dated 22-1-2003.

(k) Petitioners filed C.R. No, 476/2003 in the Lahore High Court which was dismissed vide impugned order dated 2-4-2003.

6. It is a settled law that first appellate court has all the powers under section 96 of the C.P.C. To reappraisal of the evidence on record. The first appellate court had reappraisal of the evidence on record regarding the issues No,1 in paras. 6 to 11 and reversed the finding after reappraisal of the whole evidence on record in the following terms:-- "It is therefore, observed that the learned trial court while disbelieving claim as well as evidence adduced by the appellant, has not appreciated the specific admissions on part of the respondent/defendants as martialled above. At the cost of reputation, it is observed that fact of registration of case by the respondents/defendants against the appellant is no gainsaying.

Similarly termination of the cross-case in favour of the appellant is admitted by them. Previous grudge nurtured by the respondents against the appellant is an admitted fact. All necessary ingredients of malicious prosecution i,e, that the appellant was prosecuted on criminal charge, that the prosecution terminated in his discharge and that registration of case was without reasonable and probable cause had been therefore, established from the convincing and unimpeachable evidence adduced by the appellant as well as admitted by the respondents. The enmity between the parties prior to initiating such proceedings, arrest of the appellant and his detention for a continuous period of 15 days before being enlarged on bail and subsequent discharge from such case resulting into lodgment of "Qalandra" against the respondent No,1 are proven facts. As faras nature of medico legal Ex. DI is concerned, the same was found to have been procured as a result of self-sustained injury. There was no reasonable and probable cause as evident from the aforesaid perceptible aspect. The learned trial court has therefore, miss appreciated the law as well facts of the case. The findings of the learned trial court qua the issue No,1 are therefore, set aside and the issue is decided in favour of the appellant/plaintiff."

7. The aforesaid finding was upheld by the learned High Court in the impugned order. In case the aforesaid findings of the first appellate court and principles laid down by the superior courts are put in juxtaposition, then it is crystal clear that the trial court had dismissed the suit of the respondent/plaintiff in violation of the parameters prescribed by this court in the aforesaid judgment whereas the first appellate court had reversed the findings of the trial court after reappraisal of the whole evidence keeping in view the aforesaid principles laid down by this court.

It is also a settled principle of law that judgment of this court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. The aforesaid circumstances lead to the conclusion that the petitioners (prosecutors) acted maliciously and that their real object was to crush respondent/petitioner so that he could not pursue his case against the petitioner's brother Muhammad Ilyas etc. It is also a well-settled principle of law that a prosecution may not be entirely mala fide but the continuance of such prosecution after it was discovered that the facts upon which it was based are not true may give rise to claim for damages for malicious prosecution. This doctrine is based on the dictum of Cockburn, CJ in Fetzjohn v. Mackinder (30 LJCP 257). It is also settled law that in suits for malicious prosecution proof of the existence of malice itself is not enough but should be accompanied by proof of absence of reasonable and probable cause. See as follows:--

(i) United Bank v. Raja Ghulam Hussain (1999 SCMR 343).

(ii) Abdul Rauf v. Abdul Razaq and another (PLD 1994 SC 476).

(iii) Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28).

(iv) Raja Braja Sunder Deb v. Bandeb Das (AIR 1944 P.C.1).

(v) Balbabaddar Singh v. Badari Sah (AIR 1926 P.C. 46).

(vi) Abdul Shakoor v. Lipton (AIR 1924 Lah. 1).

(vii) Noor Khan v. Fiwandas (AIR 1927 Lah. 120).

(viii) V.T. Strinivasa Fhathachariar v. Thirunvenkat Achariar (AIR 1932 Mad 601).

8. The maxim "The reasonable and probable cause" means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person charged was probably guilty of crime imputed. See (1881) 8 QBD 167 Hicks v. Faulkner. It is also a settled principle of law that if reasonable and probable cause is established, then question of malice becomes irrelevant as observed by Denning L.J. In Tempest v. Snowden (1952) 1 K.B.

130. It is pertinent to mention here that judgments of both the courts below are in consonance with the law laid down by this Court in the following judgments keeping in view the conduct of the petitioners:--

(i) Muhammad Bashir v. The State (PLD 1982 SC 139).

(ii) Muhammad Yousaf v. Syed Ghayyur Hussain Shah and others (NLR 1993 SCJ 462).

9. By Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, land, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 14 of the Constitution also guarantees the dignity of man and subject to law, the privacy of home. In the context of the Constitution, it is no more necessary to hedge in an action for damages for malicious prosecution by the condition that the action was an abuse of the "process of the Court". It will in our opinion be more in consonance with the genesis of the Constitution, Articles 4 and 14 in particular, to say that the foundation of the action for damages for malicious prosecution lies, not in the abuse of the process of Court, but in the abuse in the process of law. For, if we bear in mind the ground realities of life existing in our country, it should appear plainly that proceedings before the police afford a stronger ground for an action for malicious prosecution than proceedings in a Court of law, for it is an unfortunate fact that, as things are, human dignity suffers or is likely to suffer more at the hands of the police than in a Court of law. One of the modes to achieve this goal is to file a suit for damages against the offenders by the aggrieved persons. It is the duty of the members of, the Bar Associations and Bar Council to educate the people and to file suits for damages against the offenders apart from the criminal proceedings.

10. We have also re-examined the evidence in the interest of justice and fairplay. We are of the view that both the courts below were justified to award nominal damages to the petitioners. It is a high time to put the nation on a right path to promote the law of tort. According to us in case citizens and the courts are conscious to save the nation from the agony of telling lies or involving innocent persons in criminal cases, then the only solution to stop this frivolous litigation for the purpose of taking revenge from the other side is to file suits for damages as and when the competent forum has declared the accused persons as innocent acquitted/discharged by the competent court so that prosecution must lodge genuine cases.

11. In view of the what has been discussed above, we are not inclined to interfere in the concurrent conclusions arrived at by the courts below while exercising power under Article 185 (3) of the Constitution. The petition has no merits and the same is dismissed. Leave to appeal is refused accordingly.