MUHAMMAD QAYUM Versus ABDUL BASEER

The respondent/plaintiff filed suit for recovery of Rs.24,000 as damages from the petitioner/defendant in the Court of learned Senior Civil Judge Karak. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing issues recording pro and contra evidence of the parties decreed the suit in favour of the plaintiff/respondent vide judgment and decree dated 7-10-2002 . Feeling aggrieved with the said judgment and decree petitioner filed appeal in the Court of learned Additional District Judge Karak, but his appeal was dismissed vide judgment and decree dated 28-2-2004. Being not contended with the judgment and decrees of the Courts below, the petitioner has filed the revision petition in hand.

2. Mr. Sheikh Wazir Muhammad, the learned counsel representing the petitioner argued that a valid decree was passed in favour of petitioner in suit No.130/1 on 7-10-2003, whereby he was entitled to 1/3rd share in the property in dispute. Appeal filed by the defendants was dismissed and the complaint under section 145, Cr.P.C. was in fact initiated by the Local Police against the respondent.

3. It was also argued that in order to prove the case for damages it is necessary to prove reasonable and probable cause and that the action initiated was actuated by malice, but the respondents/plaintiffs failed to prove these ingredients through convincing evidence.

4. It was also argued that the Courts below have wrongly interpreted the judgments of august Supreme Court of Pakistan cited in the impugned judgment, hence the same required reversal.

5. On the other hand Mr. Abdul Mabood Khattak, the learned counsel representing the respondents/plaintiffs argued that suit No.130/1 was filed by the petitioner Muhammad Qayyum against three defendants namely Syed Kazim Ali Provincial Government and Siyal Muhammad. The respondents/plaintiffs were neither parties to the said suit nor any ownership or possession was claimed from them. In fact they had nothing to do with the property in dispute but they were dragged into criminal litigation by the petitioner with mala fide intention to harass, humiliate and put them to financial loss only because they were distant relations of one Siyal Muhammad, one of the defendants of Suit No.130/1. Since the complaint under section 145, Cr.P.C. was initiated at the instance of the petitioner/defendant with mala fide intention, therefore, he was liable for damages.

6. It was also argued that the matter did not end there, after the dismissal of the complaint under section 145, Cr.P.C. as well revision by the Competent Court , the respondents/plaintiffs still came out with another complaint under section 188 P.P.C. on the basis of which F.I.R. No.106 was registered on 4-6-1991 . The respondents/plaintiffs were arrested and was bailed out after two days. He not only faced the agony of confinement, but was also put to financial loss, which was admitted by the petitioner/defendant in his statement also.

7. It was also argued that the respondents/plaintiffs had proved his case by convincing evidence. He has proved his status and being educated man, but he was not cross-examined on this aspect of the case.

8. It was also argued that the Courts below have properly appreciated the evidence available on record, therefore, their findings are based on proper reasoning, which need no interference in exercise of revisional jurisdiction by this Court.

9. I have heard the arguments of the learned counsel for the parties at length and perused the record.

10. The august Supreme Court of Pakistan in Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) and Subedar (Retd.) Fazal Rahim v. Rab Nawaz (1999 SCMR 700) laid down criteria that plaintiff in order to get a decree for malicious prosecution must establish the following factors:--

(i) that the plaintiff was prosecuted by the defendants;

(ii) that the prosecution ended in plaintiff s 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.

11. In order to find out as to whether the respondent/plaintiff had fulfilled the criteria laid down by the august Supreme Court of Pakistan. Each factors is discussed hereunder.

12. So far as the prosecution of respondent/plaintiff by petitioner/ defendant is concerned, it is on record that the petitioner/defendant had filed a complaint under section 145 Cr.P.C. on 27-1-1991 Exh.P.W.1/1, which was ultimately dismissed by the competent Court on 28-8-1991 Exh.P.W.1/3. Revision petition filed by him was also dismissed by the learned Sessions Judge on 29-10-1991 . The matter did not end there. The petitioner/defendant filed yet another complaint, but this time section 188, Cr.P.C. on 24-4-1971 on the basis of which F.I.R. No.106 was registered on 4-6-1991 Exh.D.W.1/2. The respondent/plaintiff was arrested but was bailed out after two days. The respondent/plaintiff moved an application on 20-8-1991 to the concerned authorities that the charges levelled against him in the complaint/F.I.R. were false, baseless and based on mala fide. After proper enquiry the then learned District Magistrate cancelled/withdrawn the F.I.R. He then filed appeal against the order of the learned District Magistrate in the Court of learned Sessions Judge Karak which was dismissed vide order Exh.P.W.1/3. All this shows that the respondent/plaintiff was prosecuted by petitioner/defendant.

13. So far as the other factor that the prosecuted ended in favour of respondent/plaintiff is concerned, the evidence available on record mentioned in the above paragraph shows that not only the complaint filed by the petitioner/defendant was dismissed but his revision also failed. Then his complaint under section 188 Cr.P.C. was found to be false, hence the District Magistrate Karak ordered for its withdrawal. Appeal filed by him in the Court of learned District Judge was also dismissed. The prosecution, therefore, ended in favour of respondent/plaintiff s favour.

14. The most important question as to whether the petitioner/defendant acted without reasonable and probable cause, answer to this question is that petitioner/defendant did act without reasonable and probable cause. It is on record that petitioner/defendant had initially filed Suit No.130/1 against three defendants namely Syed Kazim Ali, Provincial Government and one Siyal Muhammad claiming to be owner of 1/3rd share in the property in the said suit. The said suit (No.130/1) stood decreed in favour of petitioner/defendant against which Siyal Muhammad etc. filed appeal, but that appeal was also dismissed and as per statement of learned counsel for the respondent/plaintiff Siyal Muhammad has filed revision petition in this Court. The respondent/plaintiff was neither any party to the said suit nor had any interest in the property in dispute, but he was dragged in the criminal litigation by the petitioner/defendant only because the respondent/plaintiff was relative of Siyal Muhammad one of the defendants of the said suit. There was no reasonable much less a probable cause to drag the respondent/plaintiff in the criminal litigation. The perusal of the statement of the petitioner/defendant recorded in the Court as D.W.1 shows that he did not state a single word as to why had he charged the respondent/plaintiff in the complaint filed by him. The main thrust of his statement was against Siyal Muhammad, who allegedly took over the possession. In the cross-examination he admitted:--

15. The statement of petitioner/defendant recorded in Court also shows that there was not reasonable and probable cause for which the respondent/plaintiff could be prosecuted.

16. So far as the next question as to whether the petitioner/defendant was actuated by malice is concerned, answer to this question is in positive. As mentioned above, the respondent/plaintiff was only dragged into criminal litigation only for being relative of Siyal Muhammad, one of the defendants of Suit No.130/1 filed by the petitioner. The respondent/plaintiff has neither any claims over the property in dispute nor he has any interest in the suit property and there is no evidence worth the name that he ever tried to help Siyal Muhammad in taking over its possession. On the other hand the admission of the petitioner/defendant quoted above that Siyal Muhammad was the only owner of the disputed property was in its possession proved that the allegations levelled against the respondent/plaintiff was based on mala fide.

17. The next factor which needs consideration is as to whether due to the proceedings initiated by the petitioner/defendant, the liberty of respondent/plaintiff was interfered with and that affected his reputation in family, answer to this question is also in affirmative. It is on record that first complaint under section 145, Cr.P.C. was filed by the petitioner/defendant on 27-1-1991 Exh.P.W.1/1, which was dismissed on 28-8-1991 Exh.P.W.1/3. Revision Petition filed by him was also dismissed on 29-10-1991 by the competent Court. Then he filed another complaint under section 188 Cr.P.C. on 24-4-1991 on the basis of which F.I.R. No.106 was registered on 4-6-1991 Exh.D.W.1/2. The respondent/plaintiff was arrested and remained in custody for two days. It is on record that respondent/plaintiff is a Graduate and School Teacher in Damgari Siraj Khel School and was enjoying good reputation in the area. With his arrest and detention for two days not only his position as a teacher was affected, but his family also had to undergo humiliation and insult for no fault on the part of respondent/plaintiff. The fact that he was arrested and released on bail was admitted by the petitioner in his statement before the Court. The liberty of the respondent/plaintiff was, therefore, interfered with for no crime committed by him.

18. The next question which needs determination is as to whether the respondent/plaintiff had suffered damages, answer to this question is in affirmative. The protracted litigation initiated by the petitioner/defendant against the respondent/plaintiff not only caused him financial loss in the shape of engaging counsel to pursue his case but had also caused him mental agony and torture. It has become common practice now-a-days that a wide net is thrown on the relatives of the enemy to quench the thrust of vengeance. It is not considered at the time of levelling false charge against an innocent person that one would be liable to pay in the same coin in addition would be answerable to God Almighty in the time to come. This trend has not only tremendously increased the frivolous litigation, but has also burdened the Courts with the heavy load of work and needs to be curbed with iron hand.

19. The perusal of the record and the above-mentioned discussion leads me to irresistible conclusion that respondent/plaintiff had proved his case and established all the factors enumerated by august Supreme Court of Pakistan in the above quoted judgments. The Courts below have properly appreciated the evidence available on record and the law applicable to the case in hand and I have not been able to find out any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of Court of competent jurisdiction. Resultantly, the revision petition in hand is dismissed with no order as to costs.

H.B.T./336/P Revision petition dismissed.