MUHAMMAD YOUSAF vs ABDUL QAYYUM

JAWWAD S. KHAWAJA, J.--This petition for leave to appeal has been filed against the judgment dated 02.12.2013 of the Peshawar High Court whereby Civil Revision No, 418/2010, against the judgment and decree dated 05.04.2010 of Additional District Judge-III, Abbottabad maintaining the judgment and decree of the trial Court dated 18.05.2009, was dismissed.

2. This petition was dismissed earlier for non-prosecution vide our order dated 29.09.2014 and thereafter was restored, fixed, heard and dismissed on merits vide short order dated 8.12.2014 which, for the ease of reference, is reproduced as under: "CMA-5849/14: For the reasons set out therein, C.M.A. No,5849/I4 is allowed and Civil Petition No, 01 of 2014 is restored to its original number and is ordered to be listed for hearing today.

' Civil Petition No, 01/2014:- We have given lengthy hearing to this matter because of the law which needs to be spelt out in terms of malicious prosecution. For reasons to be recorded later, this petition is dismissed."'

3. The facts of this case are simple. The present petitioner lodged an FIR regarding theft of his vehicle on 03.01.1997. Thereafter, through a supplementary statement he accused the respondent for theft of his vehicle by stating that he had credible information for such accusation.

Consequently, the respondent was arrested and kept in custody for seven days. He was discharged after the vehicle was recovered from one Jamil Qureshi. Feeling aggrieved, the respondent/plaintiff filed a suit for recovery of Rs,500,000/- as damages for malicious prosecution against the petitioner/defendant. There are concurrent findings of the three courts below; as the said suit was decreed in favour of the respondent/petitioner and the decree was also upheld in appeal and the Civil Revision filed by the petitioner also resulted in dismissal.

4. Mr. Muhammad Akram Gondal, ASC learned counsel appearing for the Petitioner contended that the accusation of theft of car was not made without probable and reasonable cause. In this regard he relied upon the case of Abdul Rauf v. Abdul Razzak (PLD 1976 SC 476). However, whether there is probable and reasonable cause or not, entails a factual determination, based on objective criteria and not on the basis of subjective beliefs held by a defendant. In the present case the Courts below have concurrently held that there was no probable and reasonable cause for nominating the respondent as an accused in the case.

5. Mr. Naeem Anwar, ASC learned counsel appearing for the respondent stated that the car in question had been stolen and was recovered from one Jamil Qureshi and thereafter the respondent/plaintiff was released. The petitioner/defendant even in his testimony during trial had deposed that he was sure that the car was lifted by the plaintiff. Moreover, in his supplementary statement to the police dated 25.03.1997 he had stated that someone namely M. Sadiq had told him that the car was stolen by Abdul Qayum respondent/plaintiff but the said person M. Sadiq was not produced as a witness showing, therefore, that this allegation was baseless and malicious. In his support the learned ASC for the respondent/plaintiff also referred to the cases of Abdul Rauf v.

Abdul Razzak (PLD 1976 SC 476) and Niaz v. Abdul Sonar (PLD 2006 SC 432) and submitted that the false accusation was knowingly made and was without probable and reasonable cause. The respondent/plaintiff also remained in police/judicial custody for about seven days. Regarding quantum of damages he submitted that he was awarded general damages and not special damages. He referred to the case of Zahra Zaidi v. M. Anwar Khan Ghauri (2004 CLC 223) and submitted that "there is no yardstick or measure to assess the actual quantum of damages in respect of the mental torture sustained by a person while facing the agonies of a frivolous litigation. Even if the plaintiff fails to prove the same, a suit is not to be dismissed in such cases".

According to learned ASC the suit had rightly been decreed in favour of the respondent/plaintiff; furthermore, in presence of the concurrent findings of all the three Courts below, this petition May be dismissed.

6. We have heard the arguments of learned counsel for both the parties and also gone through the record. The issue before us is as to what constitutes malice and how is it to be proved and whether the malice can be inferred in a case where a person seeks the prosecution and arrest of another person by giving information which he knows to be untrue or for which he has no reasonable basis other than hearsay of a person who otherwise also has not been examined by the petitioner as a witness.

7. Malicious prosecution is a tort which provides redress to those who have been prosecuted "without reasonable cause" and with "malice". In Pakistan, there is no statute which deals with the law of malicious prosecution in particular; courts in our jurisdiction have in the past have dealt with the cases of malicious prosecution according to the standards set by the Courts in England. It was observed in Muhammad Yousaf v. Ghayyur Hussain Shah (1993 SCM R 1185) that "there is no statutory law in the field governing the cases of malicious prosecution and empowering the Courts to award damages... In the determination of such disputes principles of English common law are followed. "

8. We may now examine as to how the Courts in Pakistan have dealt with the issue of malicious prosecution, following the principles of the English common law. Under common law, "the plaintiff must prove that there was a prosecution without reasonable and probable cause, initiated by malice and the case was resolved in plaintiff's favour. It is also necessary to prove that damage was suffered as a result of the prosecution. " (Vivienne Harpwod, Principles of Tort Law, 3rd Edition, Page: 332). These ingredients were recognized in Marine Management v. Government (PLD 2000 Karachi 215). The meaning of reasonable and probable cause has been explained in Walayat Khan v. Abdul Usman (1990 CLC 37) wherein it is stated that "it be borne in mind that if a person initiates criminal proceedings against another, in a matter which, from its very nature, he reasonably believes as a man of ordinary prudence, does not constitute a criminal offence and rests exclusively with a Civil Court to adjudicate upon; such action of his shall be deemed as prosecution without reasonable and probable cause and as such malicious in nature". It was further held in Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir (1984 CLC 325) that "probable cause means the bona fide prosecution rests on circumstances sufficiently strong and convincing to warrant a man of ordinary prudence C to entertain an impression and belief that person accused was guilty of offence with which he was charged." A similar meaning was given in the case of Niaz v. Abdul Sattar (supra) wherein it was held that "Vasonable and probable cause' means that it is an honest belief in the guilt of 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 come to the conclusion that the person charged was probably guilty of crime imputed". And in the case of Muhammad Aslam v. Muhammad Ibrahim (2000 CLC 154) it was observed that the circumstances of a case will be used for the purpose of determining the state of mind of the prosecutor.

9. This has meant that the plaintiff has had to establish, inter alia, malice as well as absence of reasonable and probable cause to succeed in a claim for malicious prosecution. Mere 'absence of reasonable and probable cause' has not been held to be sufficient to establish malice, although it can be used as evidence for establishing malice. Malice is a state of mind and can be inferred from the circumstantial evidence. We can take judicial notice of our societal norms which appears to be at variance on norms of English society. The mere lodging of an FIR creates a public perception adverse to the reputation of the accused. Where the FIR is proved either to be false or to have been lodged without reasonable and probable cause, the circumstances of any given case may be sufficient to show that the lodging of the criminal case was malicious. For instance, in certain cases a prior enmity or a family dispute or differences between the families of two spouses can lead to the lodging of a criminal case and initiation of a prosecution based on ,allegations of a factual nature which are motivated by the aforesaid circumstances rather than a truthful assertion of fact to bring an accused to book through the criminal legal process. In the present case, the falsity of the allegation made against the respondent/plaintiff is established from the fact that the only basis stated by him for lodging the E FIR was some information received by him from a person named Sadiq, after the FIR had been registered. Since the said Sadiq was not summoned and produced as a witness by the petitioner/defendant the element of malice on the part of the petitioner can be inferred.

10. We have examined in detail the facts and circumstances of the case and have also gone through the record with the assistance of learned counsel for both sides. Malice on the part of the petitioner is floating on the surface of the record. There was no occasion or reasonable basis for nominating the respondent as an accused. We may note that in the original FIR, the respondent was not named but it was at a subsequent point in time that the petitioner mentioned the name of the respondent as an accused. The basis on which he did so namely information given to him by M.

Sadiq also appears to be a fabrication by the petitioner because the said M. Sadiq who could have appeared in Court to testify in this regard was neither summoned nor produced by the petitioner.

No explanation for this material omission has been given by the petitioner.

11. We cannot help taking notice of the fact that in numerous criminal cases which are initiated through filing of FIRs a wide net is cast to implicate accused persons and their family members particularly able-bodied males. This ordinarily is done to ensure that such able-bodied males are arrested and there is none left free to pursue their case in Court. After trial in many cases the accused who are nominated are acquitted. The accuser/complainant in most cases walks away without facing the consequences of a false accusation. Section 182, P.P.C. Quite often is not used even if there is reasonable ground for initiating action under the said provision for prosecuting a person who has filed a false FIR. The societal propensity towards false accusation in FIRs can potentially be curbed through civil suits for malicious prosecution.

12 In the foregoing circumstances, this petition is dismissed with costs throughout. These are the reasons of our short dated 8.12.2014 which have been reproduced in para 2 above.