Subedar (Retd.) FAZALE RAHIM vs RAB NAWAZ

' MAMOON KAZI, J.---Thse two appeals, by leave of this Court, arise out of the judgment of a learned Judge in the Peshawar High Court dated 13-4-1994, accepting the revision filed by the respondent and dismissing that of the petitioner.

2. The facts of the case are that, an altercation had allegedly taken place between the petitioner and the respondent, whereupon the respondent lodged a report at Police Station Batagram, alleging that he had been fired upon by the petitioner. Consequently, a case under section 506/34, P.P.C. Was registered against the petitioner. The petitioner was arrested by the police and was kept, in confinement for five days, but subsequently, he was discharged under section 169, Cr.P.C. For want of sufficient proof. Later on, the police' instituted prosecution against the respondent under section 182, P.P.C. Before the Illaqa Magistrate which resulted in the respondent's conviction upon confession made by him in the Court. The petitioner then filed a suit against the respondent in a Civil Court for recovery of Rs,24,400 as damages for malicious prosecution.

3. The suit was contested by the respondent upon a plea that owing to the protracted trial before the Magistrate, the respondent confessed his guilt in order to relieve himself of the mental agony.

The learned Civil Court after framing eight issues and recording evidence of witnesses in the case, however, decreed the petitioner's suit for Rs,14,000 being damages granted on account of mental torture.

4. Both the parties feeling aggrieved by the judgment of the trial Court, filed their respective appeals before the District Judge, Charsadda, but the said appeals were dismissed and the judgment of the trial Court was upheld. The parties then filed their respective revisions before the Peshawar High Court, resulting in the impugned judgment dated 13-4-1994.

5. The learned Judge in the High Court took the view that the question, whether the defendant had acted without reasonable and probable cause, was one of the factors to be considered by the Courts while awarding decree to the plaintiff in a case of malicious prosecution. However, according to the, learned Judge, such evidence on the issue was wanting in the present case.

There was also no evidence to establish that the petitioner had suffered any damages on account of the said prosecution. Therefore, while the revision filed by the respondent was allowed-,.The other revision filed by the petitioner was dismissed.

6. Leave was granted in this case on the question, whether the impugned judgment has proceeded on correct principles of law governing grant of compensation in such cases.

7. There appears to be no controversy in regard to the different elements which constitute the test for awarding decree to the plaintiff in a suit for malicious prosecution. As was noticed by this Court in Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) the following factors must be established by the plaintiff before such a decree can be awarded to him

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

(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.

8. The judgment of the learned Judge in the High Court indicates that not only was he fully conscious of the said requirement, as laid down by the Courts, but the same test was applied by him before reaching the said conclusions.

9. The learned counsel in this case have referred to various judgments, starting from the case of Balbhaddar Singh v. Badri Sah (AIR 1926 PC 46) decided by the Privy Council. In this case, it was inter alia observed by the Privy Council. The real question is, whether the plaintiff has proved that the defendant had invented and instigated the whole proceedings for prosecution. It was however, observed in this case that: "In any country, where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if is done and trouble is caused, an action will lie . "

' Support has further been sought from the case of Naber Shaha v. Shamsuddin (PLD 1964 Dacca 111), as in this case it was observed that, in a ' suit for malicious prosecution, it would be incumbent on the plaintiff to prove not only the prosecution, but also that the prosecution was out of malice and without reasonable and probable cause. Similar appears to be the view taken in the case of Muhammad Mantazuddin v. Shamsur Rahman (PLD 1964 Dacca 618). In the Province of East Bengal v. S.M. Faruque (PLD 1959 Dacca 268), "reasonable and probable cause" was interpreted to mean as a genuine belief based on reasonable grounds that the proceedings are justified. It was observed in this case that: "It is an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man to the conclusion that the person charged was probably guilty of the crime imputed."

10. The ratio of the said judgments, of which we approve, therefore, appears to be that, the mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.

11. In the present case the petitioner stepped into the witness-box to give evidence but all that he stated was that the case registered by the Police against him on the report lodged by the respondent was disposed of under section 169, Cr.P.C. And thereafter, a case was instituted against the respondent for malicious prosecution. The respondent was then found guilty by the Magistrate upon his own confession and was convicted. However, as it can be clearly spelt out from the order of the Magistrate itself, such confession had been made by the respondent due to the reason of his protracted trial and delaying tactics employed by the prosecution. Therefore, it was not a confession simpliciter. In such circumstances, the learned Judge in the High Court did not find such evidence sufficient to sustain the said decree against the respondent. The petitioner no doubt, had also relied upon the evidence of one Radi Gul, Moharrar, then posted at Police Station Batagram, but his evidence was not materially different from that given by the petitioner. However, the evidence of the witnesses further indicated that an altercation had taken place between the parties on 10-4-1986 before lodging of the F.I.R. By the respondent. Although, in the F.I.R. Lodged by the respondent, he had accused the petitioner of firing at him, which charge was found to be false by the police, but before the Court the respondent stood by his earlier statement made by him in the F.I.R. Such evidence was therefore, not found sufficient by the learned Judge in the High Court to warrant awarding of the decree against the respondent. Consequently, the revision filed by the respondent was allowed.

12. In our opinion, the view taken by the learned Judge in the High Court does not appear to be unreasonable, as evidently the petitioner appears to have failed to establish that the respondent had invented such prosecution against him or that he had acted with malice or without reasonable or probable cause. The mere fact that the petitioner was discharged in the earlier case under section 169, Cr.P.C. Or that the respondent was, subsequently, prosecuted by the Police under section 182, P.P.C. Is not sufficient, by itself, to establish a case of malicious prosecution against the respondent. The entire onus in such case would be on the plaintiff which the petitioner appears to have failed to discharge in this case.

13. In the light of the foregoing discussion, the appeals are dismissed.