MUHAMMAD YOUSAF Versus Sayed GHAYYUR HUSSAIN SHAH And Other

Civil Petitions for Leave to Appeal Nos.870/L and 871/1 of 1990, . R.S.As, decided on 23rd February, 1991.

Authored by Rustam S. Sidhwa. Result: Leave granted.

Summary

This matter concerns two petitions for leave to appeal filed by the petitioner, Muhammad Yousaf, challenging a common judgment of the Lahore High Court. The High Court had accepted two Regular Second Appeals, setting aside judgments of the Additional District Judge and restoring the original judgments of the Civil Judge. The Supreme Court of Pakistan granted leave to appeal to examine several significant legal issues arising from the underlying litigation. The core legal questions involve whether a cause of action for malicious prosecution or libel exists under the specific facts, and whether a cause of action for damages for a tort survives the death of either the tort-feasor or the victim. Furthermore, the Court seeks to determine if civil liability for damages can be adjudicated based on concepts outside of English common law without retrospective legislation, and whether Islamic law principles regarding compensation can be applied by analogy to civil liabilities. Finally, the Court addresses whether such liability constitutes a charge on the estate of a deceased tort-feasor and whether an appeal abates upon the death of a party against whom no decree existed.

Questions settled in this judgment

Does a cause of action for damages for malicious prosecution or libel survive the death of the tort-feasor or the victim?
Can Islamic law concepts of compensation be imported by analogy to determine civil liabilities in the absence of specific legislation?
Is a liability for damages arising from a tort a charge on the estate of a deceased tort-feasor under Muslim Law?
Does an appeal abate upon the death of a party if no decree existed against them at the time of their death?

malicious prosecutionlibeltort liabilityabatement of appealsurvival of cause of actionIslamic lawcivil liability

ORDER

RUSTAM S. SIDHWA, J.---This order will dispose of two petitions C.P.LAs. Nos.870/L and 871/1, of 1990 filed by Muhammad Yousaf, petitioner, against the common judgment of a learned Single Judge of the Lahore High Court dated 20-6-1990, accepting the two Regular Second Appeals filed by Syed Ghayyur Hussain Shah and others, respondents, and Muhammad Shafiq and others, respondents respectively and setting aside the two separate judgments passed by a learned Addl. District Judge dated 21-9-1965 and restoring the judgments of the learned Civil Judge dated 25-5-1964.

2.Having heard the arguments of the learned counsel for the petitioner, we grant leave in both the petitions to consider inter alia the following questions:

(1)Whether the facts and circumstances of the cases gave any cause of action against the tort- feasor for damages for malicious prosecution or for libel; (2) whether any cause of action claiming damages for wrong done to any person survives against the tort-feasor after his death, or conversely survives to the heirs of the person wronged after his death against the tort-feasor; (3) whether a suit for damages could be decided under any other concept of law, apart from English common law, without there being legislation giving it retrospective effect and whether the lis is subject to English common law; (4) whether theory of Islamic Criminal Law and its concept for compensation to the heirs of deceased can be imported while interpreting civil liabilities, under the decree of any Court by analogy; (5) whether liability accruing out of the present suit can be deemed a charge on the estate of the deceased tort-feasor for which his heirs can be held responsible under the Muslim Law; and (6) whether the appeal abated against Gharib Alam as he died in 1975 when there existed no decree against him?

Judges on this bench

Rustam S. Sidhwa1,121 judgments
Muhammad Afzal Lone787 judgments