S.M. TUFAIL AHMAD vs WILLAYAT HUSSAIN and 2 others

1. ' The applicant, S.M. Tufail Ahmed, claims to be an old person of about 66 years of age and it senior practiing advocate at Karachi. He belongs to Sunni sect of Muslims and was associated with the management of one mosque known as Masjid-e-Sulaimania. He managed the take over of the said mosque by the Auqaf Department in larger interest of the Muslims. It appears that in the third week of August 1980 certain posters were pasted on the wall of the Masjid regarding programme of some Urs but the Moezzan of the mosque tore it off. This led to the conflict between two groups belonging to different schools of thought. As the conflict grew-up Mehboobur Rehman, Moezzan of the mosque, filed a complaint at Police Station Jamshed Quarters on 24-8-1980 under sections 506(2), 323/504, Pakistan Penal Code. In the investigation of the said case it is alleged that the Police Officers headed by Wilayat Hussain, respondent No,1 herein, and the other two respondents (Police Officers) encircled the house of the applicant at about 8-45 a.m. On 25-8-1980. He was arrested, handcuffed and insulted in front of people who had gathered there and was ultimately sent up for trial in the Court of Additional City Magistrate, Jamshed Quarters, Karachi (East). On an application filed by the applicant under section 249-A, Criminal Procedure Code he was acquitted by the Magistrate.

2. ' The applicant after obtaining acquittal in the case, as stated above, filed a suit in the Court of Ist Senior Civil Judge, Karachi, for recovery of damages of Rs,25,000 for his arrest, malicious prosecution and defamation. Out of the 3 defendants impleaded in the suit, Choudhry Muhammad Ashraf, defendant No,3, contested the suit by filing his written statement while the other two defendants remained absent . The Trial Judge (Vth Senior Civil Judge, Karachi (East), by her judgment passed on 4-6-1986 dismissed the suit. The application then filed an appeal before the District Judge, Karachi (East), which was ultimately decided on 4-11-1988 by the IIIrd Additional District Judge, Karachi (East). The appeal filed by him was dismissed. It is against the concurrent findings referred to hereinabove that the present application under section 115, Civil Procedure Code has been filed by the applicant.

3. ' Mr. B.M. Banghash, Advocate for the applicant, has mainly contended that the contesting Defendant after filing written statement did not examine himself in the suit and as such he had in fact laid no defence in the suit and the suit on the basis of evidence of the applicant ought to have been decreed. In support of his such contention he referred to the cases reported in PLD 1972 SC 25 and 1983 CLC 3441.

4. ' Out of the 3 respondents it is pointed out by Mr. M.A. Kazi, Advocate, that respondent No,1 has since died, and respondent No,2 had appeared in Court while he represents respondent No,3 only. The main contention put forth by Mr. MA. Kazi is that the applicant is seeking relief for his malicious prosecution. The respondents were merely public servants who had investigated the complaint filed by the Moezzan, Mehboobur Rehman and after performing their duty under the Code of Criminal Procedure had put up a final report before the Additional City Magistrate, Jamshed Quarters, Karachi and the applicant was acquitted under section 249-A, Criminal Procedure Code.

5. According to him, mere acquittal of a criminal case will not render Police Officers liable for malicious prosecution. He further pointed out that no mala fides had been imputed to the respondents for the purpose of initiating investigation of finally submitting the report, and, therefore, no cause of action accrued against them.

6. ' On a question by Court. Mr. B. M. Banghash, Advocate for the applicant, states that a separate suit for malicious prosecution and damages was also filed against the complainant and the suit has since been decreed.

7. ' There can be no cavil to the proposition laid down in the two cases referred to by Mr. B.M.

8. Banghash, Advocate for the applicant. But at the same time but in such circumstances the plaintiff on the basis of his plaint and evidence laid in the Court has to establish that a cause had accrued to him and he has led evidence to prove his cause . In the present case, the respondents are merely Investigating OfficeRs, No motive to falsely implicate him has been shown against them and they had discharged their function and performed public duties under the Code of Criminal Procedure. There appears to be no allegation and evidence against them directly involving them for the wrongful acts alleged in the suit. Mr. B.M. Banghash, advocate for the applicant, has also not been able to show that the conclusions concurrently reached by the two Courts are in any way perverse to enable this Court to exercise its jurisdiction under section 115, Civil Procedure Code. For such reasons I find no force in this application which is dismissed with costs.