Precisely stated the facts of the case are that the petitioner got a criminal case registered, vide F.I.R. No.224 dated 15-6-1984, against the respondent, his father, Shah Nawaz and three others with the Police Station, Ferozwala District Sheikhupura, wherein the Police investigated the case and the respondent was arrested. According to the petitioner, thereafter, as the matter was amicably settled through the intervention of the "Punchayat", therefore, he did not pursue the investigation and consequently, the respondent and his father were discharged from the case by the Police on 3-7-1984. The respondent, then filed a suit for recovery of Rs.24,500, as damages, against the petitioner, which was contested by him and ultimately, the learned trial Court, after framing the issues and recording the evidence of the parties, decreed respondent's suit for the amount of Rs.14,500, vide judgment and decree dated 13-11-1991. Petitioner's appeal was dismissed by the learned Additional District Judge, vide judgment and decree dated 3-5-1994, hence the present revision petition.
2. The learned counsel for the petitioner has contended that under the similar facts and on the basis of same F.I.R., father of the respondent instituted a separate suit against the petitioner, which was although decreed by the learned Additional District Judge, to the extent of Rs.18,500, yet the said decree was set aside by this Court, while accepting petitioner's revision petition (C.R. No.1221 of 1991). He has further submitted that in view of the evidence on record no case for malicious prosecution, entitled the respondent for a decree of Rs.14,500, has been made out, therefore, the impugned judgment/decree are not sustainable in law. Conversely, the learned counsel for the respondent has submitted that both the Courts have concurrently held that the respondent is entitled for the decretal amount, therefore, the concurrent findings are not to be interfered with by this Court in exercise of its revisional jurisdiction.
3. The Honourable Supreme Court of Pakistan in the case of Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCM R 700 has laid down certain factors, which must be established by the plaintiff before a decree could be awarded to him for damages on account of malicious prosecution. One of the major ingredients is as to whether the action of the petitioner was without reasonable and probable cause and the malice on the part of the petitioner. It is evident from the record that there was no previous enmity between the parties and the petitioner lodged the F.I.R. With the police station against the respondent about the theft of his Tractor. The ratio of different judgments is that the mere fact that the prosecution instituted by a defendant against a plaintiff ultimately failed cannot expose the defendant to charge him of malicious prosecution, unless it is proved by the plaintiff that the prosecution was instituted without reasonable or probable cause and it was due to malice.
4. Although this Court, in exercise of its revisional jurisdiction, is not called upon to reappraise the evidence on record, yet in the interest of justice, I have examined the evidence, produced by both the parties. The plaintiff failed to prove that he was either defamed or a case of malicious prosecution is made out. Additionally, the respondent failed to prove that the case, lodged against him, was totally false and that on account of registration of the case, he has suffered any loss and what is the quantum of the loss. In the plaint, some details of alleged damages have been narrated, however, the same have not been proved through the evidence on record, inasmuch as respondent's version about the loss of crops was also not proved. I am of the considered view that said evidence is not sufficient to warrant the awarding of decree against the petitioner.
Additionally, the respondent failed to establish that the petitioner acted with malice or with reasonable or probable cause. The mere fact that the case was registered by the petitioner against the respondent, in which he was subsequently discharged, will not automatically entitle the respondent to claim damages on account of malicious prosecution. It is settled law that in such- like cases, the onus to prove the malicious prosecution, entitlement of damages and quantum of damages, always lies upon the plaintiff, which in the instant case, the respondent failed to prove. It would be appropriate to refer the judgment of Subedar (Retd.) Fazale Rahim (supra), the principle laid therein, are completely attracted to the facts and circumstances of the case.
5. So far as the contention of the learned counsel, regarding the concurrent findings of facts, suffice it to say that both the Courts have grossly misread the evidence on record and both the judgments were passed in complete oblivion of the law on the subject, therefore, the concurrent findings of facts would be of no avail to the petitioner. The contention of the learned counsel is repelled.
6. Upshot of the above discussion is that the revision petition is allowed and both the impugned judgments and decrees are set aside with no order as to costs. Resultantly, respondent's suit stands dismissed.