' SYED HAMID ALI SHAH, J.---Mr. Arshad Mehmood Cheema Civil Judge Gujranwala decreed the suit for damages filed by the respondent to the tune of Rs,12,000 vide judgment and decree dated 10-7- 1997. Syed Akhlaq Ahmad, Additional District Judge, Gujranwala while dismissing the appeal upheld the decision vide judgment dated 17-9-1998. This revision petition has been filed against the aforementioned concurrent findings of the Courts below.
2. Facts giving rise to the filing of this petition are that the petitioner lodged F.I.R. No,381 of 1990 dated 16-10-1990 (Exh.P.1), whereby a criminal case under section 379, P.P.C. Was registered against the respondent and others. The F.I.R. Stood cancelled after usual investigation by the Police vide cancellation report dated 29-10-1990 (Exh.P.3) and cancellation order dated 11-4-1991 (Exh.P.2).
3. Respondent was arrested and remained in lock-up for investigation from 17-10-1990 to 29-10- 1990. He was set at liberty on the basis of cancellation report (Exh.P.3).
4. The respondents instituted the suit against the petitioner for recovery of Rs,24,500 (rupees twenty four thousand and five hundred only) as damages for mental torture, loss of reputation and business. The defendant/petitioner contested the suit by way of filing a written statement and raised therein certain preliminary objections. The suit was dismissed but was reminded to the trial Court by the learned District Judge, Gujranwala vide judgment dated 14-7-1996. An issue was added by the learned District Judge, Gujranwala which reads as under:-- "Whether the defendant maliciously prosecuted the plaintiff? OPP"
5. The plaintiff produced three witnesses and adduced in evidence documents Exh.P.1 to Exh.P.6. The defendant, on the other hand, produced three witnesses and also produced copy of order dated 7- 6-1992 passed by Magistrate as Exh.D.1).
6. The learned trial Court decreed the suit in favour of the plaintiff to the extent of Rs,12,000 (rupees twelve thousand only) along with costs. The petitioner preferred an appeal against the said order and the learned appellate Court vide decision dated 17-9-1998 upheld the judgment and decree passed by the learned trial Court. Hence this revision petition.
7. Learned counsel for the petitioner contends that when the case was remanded by the appellate Court in the first round of litigation, a fresh issue was framed and its onus was on the respondent, who failed to lead any evidence to prove the said issue. He further contended that the parties entered into a settlement and as a result of compromise, therefore, the petitioner decided not to pursue the case which resulted into termination of criminal action in favour of the respondent.
Learned counsel has referred to a decision of Hon'ble Supreme Court titled "Barkat Ali v.
Muhammad Nawaz" (PLD 2004 SC 489) to support his contention as to the competence of the revision petition against the concurrent findings of the Courts. He further added that the learned Courts below have misread the evidence and the respondent has deliberately claimed an amount of Rs,24,500 (twenty four thousand and five hundred only) to avoid the payment of court-fee. The learned trial Court has proceeded on wrong assumption of law as the Court passed the decree in favour of the respondent being legal heirs of the deceased plaintiff. Learned counsel for the petitioner contended with vehemence that the plaintiff died during the pendency of the suit and the legal heirs of the deceased plaintiff were brought on record. The learned counsel for the petitioner states that the present suit is for damages with regard to the mental torture, fame and character of the deceased. It is associated and invests in the individuality of the plaintiff, therefore, the right to sue does not survive on the death of the deceased. The learned counsel has placed reliance on "Ali Muhammad Mirza and others v. Mst. Sardaran and others" (PLD 2004 SC 185) wherein the Hon'ble Supreme Court has held that the right to sue does not survive in a suit for damages where the plaintiff dies during the pendency of suit.
8. Learned counsel for the respondents on the other hand, has submitted that the petitioner has failed to show any misreading or non-reading of evidence in the impugned judgments. He further argued that the revision under reference is against the concurrent findings of two Courts below and as such is not competent. Learned counsel for the respondents emphasized that the prosecution was not terminated as a result of compromise as alleged by the petitioner rather the petitioner had been pursuing the investigation at the relevant time vigorously which is proved by statement of D.W.2. He added that the witness of the defendant/petitioner, who was the Investigating Officer denied that the F.I.R. Was cancelled as a result of compromise between the parties and stated that the same was cancelled as it was a false case.
9. I have heard the learned counsel for the parties at length and gone through the record with their assistance.
10. The decision of Hon'ble Supreme Court has the binding force. It has been declared by Hon'ble Supreme Court in case PLD 2004 SC 185 (supra) that right to sue does not survive in a suit for damages where plaintiff dies during the pendency of suit. For this reason the present petition is accepted and the impugned judgments and decree passed by the Courts below are set aside with the result that the suit filed by the plaintiff stands dismissed.