MUHAMMAD AKRAM Versus FARMAN BI

ORDER

1. MUHAMMAD AFZAL ZULLAH, J .‑‑ This petition for leave to appeal by a defendant calls in question judgment dated 17‑12‑1988 of the Lahore High Court, whereby his Civil Revision in a matrimonial case resulting in award of damages against him in Torts, for malicious prosecution, was dismissed. The brief facts as narrated in the impugned judgment are that: "petitioner claimed that Mst. Farman Bi respondent was married to him, some years ago, and, had lived with him as his wife for some time and thereafter left his house for her patents' house, never to return. Upon these allegations, he brought a suit for restitution of conjugal rights against respondent, in the Family Court at Jhelum on 15‑12‑1982. Respondent resisted the suit and controverted the allegations in regard to her marriage and its consummation. In nutshell, defence offered by her was that the petitioner had set forth a false claim of marriage against her. To resolve this dispute, the trial Court settled following two issues:‑‑

(1) whether the defendant is legally ‑wedded wife of the present plaintiff?

(2) If so to what effect on the merit of the suit?

2. Parties to the suit led evidence for and against their respective versions upon consideration of the evidence, learned Judge Family Court found that "the plaintiff had badly failed to discharge the burden of proving the present issue. Hence it is concluded, against him". While commenting upon the oral evidence produced in support of marriage and the discrepancies existing therein, learned Judge Family Court in the earlier part of his judgment observed, "in such circumstances, I fail to understand that how a woman can agree to marry a person when her sister and her, brother were at daggers drawn with their respective wives and husbands. The defendant herself appeared in the witness box and deposed in examination‑in‑chief that the present suit was mala fide instituted against her on the basis of enmity between the two families caused due to above‑referred family litigation. She deposed in examination‑in‑chief that she was a widow of, one Muhammad Yousaf who was killed in Bengal during war and upto the day of deposing evidence before this Court, she was receiving payment of the pension of her deceased husband. The plaintiff also produced a document concerning decision of Arbitration Council, Ex.P.1 in order to prove that the marriage ceremony had really occurred between the parties. Such decision is not binding upon the findings of this Court. Moreover from the wording of that decision it is evident that even before that council‑there was a dispute concerning existence of relationship of husband and wife between the parties". As a result of these findings, suit for restitution of conjugal rights was dismissed with costs by the Family Court, on 2‑4‑1984. Though the order dismissing the suit was appealable under section 14 of the Family Courts Act 1964, yet for reasons of his own not discernible from the present records, petitioner did not choose to prefer an appeal against adverse findings in the judgment of the Family Court. Therefore, decision dated 2‑4‑1984 attained finality under the law and shall be deemed to have been accepted by the petitioner." The learned Judge in the High Court further noted: "On 17‑10‑1984, the action out of which the present civil revision has arisen was commenced by the respondent to recover Rs. 25,000 as damages for malicious prosecution. Previous history of the litigation to support malicious prosecution and claim for damages was enumerated in the plaint and made basis for a cause of action against the petitioner. Petitioner contested the suit and took up several defences. It was pleaded that the form of the suit was defective; that the plaintiff had no cause of action to sue for malicious prosecution and to claim damages; that the suit for damages was out of malice; that Mst. Farman Bi was his legally‑wedded wife. However, earlier litigation between the parties and its result were not controverted.

3. Pleadings gave rise to following issues:‑‑

4. "(1) Whether the suit is not maintainable in its present form? OPD

(2) Whether the plaintiff has no cause of action? OPD

(3) Whether the suit is mala fide? OPD

(4) Whether the suit for restitution of conjugal rights instituted by the defendant defamed and damaged the plaintiff? OPP

(5) Whether the plaintiff is entitled to recover Rs. 25,000 as damages from the defendant? OPP

(6) Relief."

5. Mst. Framan Bi examined Mohammad Ashraf PW‑1 and herself entered in the witness box as PW‑2 to make her own statement to establish her case. It was brought out in the evidence that the petitioner had lodged a false case for restitution of conjugal rights against her out of malice and without reasonable and probable cause for it. It was deposed that Mst. Farman Bi was not the wife of the petitioner nor had she ever lived with him as his wife and cohabited. Petitioner refuted this evidence by his own. statement and that of his real brother Mohammad Aslam. Mohammad Aslam testified that marriage had taken place 12/13 years ago and respondent Mst. Farman Bi resided with him as his wife for 6/7 years. It is in evidence and is otherwise also not disputed that Mst. Arshan Bi sister of Mst. Farman Bi was married to Mohammad Aslam D.W‑1, a real brother of petitioner (Mohammad Akram). Likewise Mst. Walayat ' Bi was married to Khadim Hussain, real brother of Mst. Farman Bi. This was an exchange marriage. Mst. Arshan Bi has since bLn divorced under a Court decree, in the result of a suit for dissolution of marriage riled by her against her husband and in regard to Mst. Walayat Bi, some litigation is stated to be pending in Court. It is in evidence that a son born to Mst. Walayat Bi from her' marriage with Khadim Hussain is getting maintenance under a Court, decree. It also transpires from the record that Khadim Hussain and his real mother were convicted for abducting the above minor child but were acquitted of the charge in appeal preferred by them. Relevant records of this litigation fought out between the two families had not been brought on file of this case. Alleged marriage between the parties was oral. It was neither reported to Nikah Registrar nor was it registered with him. Marriage solemnized under Muslim Law required compulsory registration under section 5 of the Family Laws Ordinance.1961. Therefore, though registration of marriage was compulsory under the afore noted provision of law, yet its non‑ registration, in itself, does not invalidate it, if the same is otherwise proved to have taken place in accordance with requirements of Islamic Law. However, if the factum of marriage is in serious dispute between the parties to it, its non ‑registration may cause some doubts on its existence and solemnization. See Dr. A.L.M. Abdullah v. Rokeya Khatoon and another P.L.D. 1969 Dacca 47".

6. Learned Judge after noting the above facts and background in the impugned judgment rendered findings about the claim of ‑marriage by the petitioner and related questions as follows:‑‑

7. "In face of civil and criminal litigation between the two families and presence of seriously deteriorated and acrimonious relations, it is difficult to entertain an idea of marriage of the petitioner, with the respondent. In the existing background, it would be clear that the petitioner made a false claim of consummated marriage against Mst. Farman Bi respondent out of spite and without reasonable and probable cause existing for it merely to hurt, humiliate, and defame her who was a widow whose husband had laid his life in defence of the country in East Bengal. She was recipient of Government pension also. Respondent had vehemently denied her marriage with the petitioner who otherwise was her close r ‑ elation. As said above, suit for restitution of conjugal rights had failed and the judgment given in the suit attained finality and put a final sea] upon its non‑existence. Independent of the judgment of Family negating the marriage, there is no clear and convincing evidence to establish marriage of the petitioner with the respondent Upon review of whole evidence, ambient circumstances and the natural probabilities of the case, falsity of the‑ marriage set up is quite evident which appeared to have been set forth merely to defame the respondent and other members of her family. There is no doubt that a false claim of consummated marriage hurts, humiliates, defames and lowers the person falsely charged in estimation of others. Respondent belonged to a respectable family of agriculturist's class. There can be no dispute that in the result of litigation launched against her fair fame and reputation like her family members seriously suffered in addition to causing her mental agony of the Court litigation which remained pending for a year and a half. She defended the suit through an Advocate and was forced to expand money upon her defence."

8. In so far as the concurrent findings of facts by the two Courts below are concerned, they are unexceptionable. The learned Judge in the High Court itself scanned the evidence to discover any infirmity in the appellate judgment, but found none. On our part also, after hearing the learned counsel as also after going through the record, on this aspect of the matter, we Eire satisfied that the impugned judgments do not suffer from any error of law or principle not even of appreciation of evidence. The earlier suit filed by the petitioner was undoubtedly a malicious prosecution (in its wider sense including also civil action).

9. On the 2nd aspect of the factual side of the case also namely, the conclusions regarding ingredients of "malicious" prosecution we have nut reason to differ with the impugned findings that the plaintiff ‑respondent frilly satisfied the tests laid down from time to time in this behalf. The learned counsel ‑could not challenge the following elements of the tests.

(i) That the plaintiff was prosecuted by the defendant;

(ii) That the prosecution ended in plaintiffs favour;

(iii) That the defendant acted without reasonable and probable cause;

(iv) That the defendant was actuated by malice;

(v) That the proceedings had interfered with plaintiff's liberty and had also affected her reputation; and finally

(vi) That the plaintiff had suffered damage.

10. The difference of opinion in the two lower‑ Courts regarding the assessment of damages has correctly been resolved by the High Court with reference to the remarks of Kaikaus, J. in cases like the ‑present one. They read as follows:‑‑

11. "Some damage must necessarily have been caused. If we are to assess the damages only if the exact amount is proved, no damages can ever be decreed, Damages have so many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of a suit."

12. (Mohammad Sharif v. Nawab Din (PLD 1957 Lah. 283)

13. The learned counsel for the petitioner has vehemently reiterated the legal contention raised before and repelled by the High Court that a "suit for damages for malicious prosecution in respect of civil action does not lie and that in any event, it was not maintainable as there was provision in law for awarding costs to the successful party". Reliance has been placed on "Mohammad Amin v. Jogendra Kumar Bannerjee and others" (A.I.R. (34) 1947 Privy Council 108).

14. The learned Judge in the High Court as a result of careful survey of case law on the point, which started with the critical analysis of the Privy Council judgment (of course with respect) and ended with reference (with approval) to the English case of Berry v. British Transport Commission (3 All E.R. 322 (1960), came to a proper conclusion, that &re was no bar, as canvassed, In this behalf he made reference to the following:‑‑

(1) Mohamed Amin v. Jogendra Kumar Bannerjee and others (A I R (34) 7.947 Privy Council 108).

(2) Savile v. Roberts (1 Ld. Raym. 374).

(3) Jagdeo Sahu v, Dwarka Prasad (A I R 1948 Patna 88.

(4) Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q B D 674.

(5) Sultan Ahmad Awan v. Ghulam Muhammad Awan PLD 1987 Lahore 663.

(6) Ali Asghar v. Fazal Akbar and 2 others 1988 C L C 147 (Peshawar).

(7) Kapoor Chank Rikhi Ram Mahajan v. Hakin Jagdish Chand Siripat Rai and another A I R 1974 Punjab and Haryana 215.

(8) Premji Damodar v. L‑V. Govindji & Co. A I R (34) 1947 Sind 169.

(9) Genu Ganapati Shivale v. Bhalchand Jivraj Raisoni and another AIR 1981 Bombay 170.

(10) Para 717 at page 367 of Halsbury's Laws of England, 3rd Edition Volume 25.

(11) Chhanganial Sakarlal v. Municipality of Thana 34 Bom. LR 143, AIR 1932 Born 259.

(12) Mohini Mohan Misser v. Surendra Narain Singh AIR 1915 Cal 173.

(13) Nasiruddin Karim Mahomed v. Umerji Adam & Co. AIR 1941 Bom 286.

(14) C.M. Agarwalla v. Halar Salt and Chemical Works AIR 1977 Cal. 356.

(15) T. Subraymanya Bhatta v. A. Krishna Bhatta AIR 1978 Ker. (FB).

(16) Berry v. British Transport Commission 3 All England Report 322(1960).

15. We having carefully perused the reasoning of the learned Judge in the High Court, agree with him that the distinction in our country between criminal prosecution and the 'Civil 'prosecution' for purpose of denying the right to institute the latter for damages in torts, is ‑not at all well founded. The Privy Council judgment showing itself a conflict of trend for some time in the judgments in a country where "the action for damages, for malicious prosecution is part of the common law of England" is no more an authority for us under our own constitutional and legal set up. Even otherwise we do not agree with the learned counsel that the denial of right to sue for damages in such like cases, was universally accepted as good law. The contrary view, with respect, is more logical and is much convincing. The learned Judge has correctly analysed the case‑law in this behalf.

16. The, second point in the arguments advanced from the petitioner's side, if not more, is equally faulty and when demolished, seriously affects the first one also. The provisions for costs, in our laws to be awarded to a successful litigant are mainly contained in the Code of Civil Procedure. Sections 35, 35‑A and 95 thereof have rightly been referred to. They read as follows:‑‑

17. Edition 35. Costs.‑‑(1) Subject to such conditions as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

18. ‑ (3) The Court may give interest on costs at any rate not exceeding six per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

19. Section 35A. Compensatory ‑costs in respect of false or vexatious claims or defences.‑‑(I) If in any suit or other proceeding, (including an execution proceeding), not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by‑whom such claim or defence has been put forward, of costs by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding (five thousand) rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:

20. Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, and not being a Court constituted under that Act, are less than two hundred and fifty rupees, the. High Court may empower such Court to award as costs under this section any amount exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

21. Provided further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this section shall, by reason thereof, he exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.

22. Section 95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.

(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,‑‑

23. .(a) It appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a‑ reasonable compensation to the defendant for the expense or injury caused to him:

24. Provided that a Court shall not award, under this section an amount exceeding the limits of its pecuniary jurisdiction."

(2) An order determining any such application shall bar any suit for 'compensation in respect of such arrest, attachment or injunction.

25. It would be seen that Section 35 essentially deals with the actual costs of the 'suit' while under Section 35‑A, they are 'compensatory'. Their nature is well summarised by Mr. Amer Raza A. Khan in his well known commentary on C.P.C. that: Costs awardable by a Court can either be compensatory costs (S. 35‑A) or actual costs (S. 35). Actual costs are awarded by a Court in order‑to secure the expense's undergone by a successful litigant in the assertion of his rights before a Court. They are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made ‑a source of profit for the successful party. They are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him. And further that even under section 35‑A "Costs are compensatory and are not awarded as penalty against an unsuccessful party'. All this shows that though the costs awarded under section 35-A, CPC can be taken into account when awarding damages , they are not even by statutory dispensation, the same as the "damages". The conditions for application of section 35‑A are different and much less than the elements set out earlier for an action for malicious prosecution. The actual costs of the suit under section 35, C.P.C. are at a much lower level when considered in this behalf. Besides this, a combined reading of subsection (4) of section 35‑A and subsection (2) of section 95 which deal with the effect of the orders under these provisions on actions for "damages", are clearly indicatives of the legislative intent; that unless a case is fully covered by section 95(2), the award of costs, under sections 35 and 35‑A, instead of barring a suit for damages supports the right for such an action."

26. The further observations by the High Court about the availability or otherwise of these provisions to a Family Court under the Family Courts Act on the above view, need not be commented upon; under the assumption that it can award the relevant costs. But it has correctly been held by the High Court that the award of Rs. 2 as costs of the earlier suit to the respondent, by the Family Court does not at all create any bar to the maintainability of the present suit by her for damages.

27. There is Another very important aspect of the matter. Section 9 of the C.P.C. provides that "the Court shall (subject to the provisions herein contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly barred or impliedly barred." It has not been denied that suits for damages in tort on account of malicious prosecution are covered by the term 'civil nature'. The question of 'prosecution' of a civil action has Already been dealt with. Thus the present suit was covered by, the 1st part of Section 9. Regarding the second part, learned counsel did not rely on any provision of law expressly barring the, trial of such suit. His reliance on the Privy Council judgment in the case of Mahomed‑Amin and in turn on an alleged (though doubted) rule of Common Law of England at best, could be pressed in service as an implied bar. Is it possible? '

28. The answer would be in the negative. The resort ‑to a rule of common law of England in preference to the one of Pakistan Law or a rule of Islamic law or jurisprudence; or for that matter, the Islamic common law, is not now possible under the Pakistan Constitutional legal, set up‑‑ See the Lahore case of Haji Nizam Khan v. Additional District Judge, Lyalipur and others (PLD 1976 Lahore 930) as approved by his Court in the case of Mohammad Bashir v. The State ‑PLD 1982 SC 139.

29. In the present case the suit relates to the right to good reputation granted as a basic right to the citizen. It has already been held so in The Federation of Pakistan through Secretary Law and Parliamentary Affairs Islamabad v. Mohammad Ishaque and another (PLD 1983 SC 273) Shariat Bench). Amongst others under Article 31: of the Constitution, provision for Islamic way of life, is an obligation of the State. Same is the position under the Objectives Resolution. Above all even the enactment of a law which is against the injunctions of Islam, has been prohibited by the 2nd Part of sub‑clause (1) of Article 227 of the Constitution. It is not the case of the petitioner either, that a right which is guaranteed by the Constitution as a fundamental right or otherwise, or protected by it or by any other law, would not be enforcible through a civil suit under Section 9; provided of course, other conditions are satisfied. Thus the implied bar intended to be canvassed would be against all that has been said above. Lastly if an express bar cannot be enacted by the legislature with regard to subject of discussion, the Courts in Pakistan have no jurisdiction to import an implied bar from another jurisprudence. It is accordingly held that the suit was competent.

30. Regarding the right of good reputation in Islam, suffice it for the purpose of this discussion, further to refer to the Last Khutaba of the Prophet (P.B.U.H.); wherein it has been given equal place with the right to life and property. As to reputation in the context of torts there are many injunctions. Reference may be K made only to those cited in the recent book "Khuthat‑i‑Rasul" by Mr. Mohammad Mian Siddiqui of the Islamic Research Institute of the International Islamic University Islamabad in Chapter 26 at page 155 et seq. There is useful material also in the "Islamic Law of Torts" by Dr. Liaqat Ali Khan Niazi (Chapters 9, 10 and 17).

31. Only one short question raised by the learned counsel, remains to be dealt with. It has been elaborately stated in Para (iii) of the grounds of the petition thus:‑‑

32. "That admittedly, Mst. Farman Bi the respondent herein was married and admittedly her husband died after only a year of married life and undoubtedly he gave his life for the country. If a widow remarries it is no slur on her former husband albeit her husband laid down his life for the country. Unlike Hindus who followed the law of Heathens and marriage by a widow was almost a crime; the British never recognized it and the Indian Government passed laws allowing wedding of the widows. It is no slur on a widow either to go in for a second marriage. The parties were so closely related that allegation of a marriage can never be considered defamatory."

33. The brief answer to the argument in general would be that acts and statements which perse are not defamatory, may become so in the context thereof. This is exactly the position here. It will also depend upon the circumstances of each case. In this case we are satisfied that on account of the bad blood between the parties the false claim of marriage was made against the, respondent. It being malicious in every respect has already been dealt with.

34. A strong further possibility which has not been dealt with, by the learned Courts below, also cannot be excluded. It borders on the pre‑Islamic practice of grabbing widows' property and person, by the close relation by putting a claim on her in a ritual without her consent. The Quran and the Sunnah prohibited it;

35. See Fiqah‑ul‑Quran recently published by Adara‑i‑Fikre Islami Karachi, Volume 111, 2nd publication 1986 under the sub‑heading Page {Bewa ke sath husne suluk} 471. It was a pagan practice, Such like un‑Islamic practices have been introduced and adopted due to our contact in the Sub‑continent with alien culture; the effects of which have also been discussed in another recent judgment; where attempt was made by real brothers to grab the property obtained in inheritance by a sister, on the ground of "relinquishment"‑a practice in the Hindu Law and custom developed on account thereof. See C.P‑133‑R of 1989 decided on 15th May, 1989. reported as PLD 1990 S C 1.

36. It is possible that in this case also the petitioner in addition to the malicious action intended and attempted to blackmail the respondent and her family to surrender their gains in other items of litigation, and she in particular to surrender her person and property as well this she bad obtained as benefits from Government on account of the death of her husband in East Pakistan in the 1971 War with India.

37. In the light of the foregoing discussion this petition is dismissed and leave to appeal is refused.

38. M.B.A./M‑1110/S Leave refused.