' UMAR ATA BANDIAL, J.---This revision petition is filed against the decision of the learned Additional District Judge, dated 29-4-2004 accepting the appeal by the plaintiff/respondent against the judgment of the learned trial Court, dated 17-4-2003 that dismissed his suit for damages for malicious prosecution in the amount of Rs,24,500. The respondent was issued notice in this petition but having been served, he did not enter appearance and was, therefore, proceeded against ex parte on 27-10-2005.
2. The respondent's suit claims damages of Rs,15,000 for loss of earnings, Rs,4,500 for counsel fee and Rs,5,000 for loss of reputation. It is alleged that the respondent/plaintiff was maliciously prosecuted by the petitioners, who lodged F.I.R. No,210 of 1998, dated 25-4-1998 for the offence under section 10(4) Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with section 7 of the Anti-Terrorist Act, 1997 along with other accused. The plaintiff and two others were challaned, tried by the learned ATA Court for the aforesaid offences and acquitted by judgment, dated 6-2- 2001.
3. Thereafter, the plaintiff/respondent herein filed his suit on28-3-2001 claiming the aforesaid damages based on the judgment ofacquittal given in his favor. The underlying occurrence giving rise to the offences for which the respondent herein/plaintiff was prosecuted is the physical taking away of the petitioner herein/defendant No,l. The petitioner alleges that she was abducted and compelled to sexual act by, inter-alia, the respondent herein whereas the defence version is that the petitioner eloped voluntarily to marry one of the co-accused, Shafique, a cousin of the respondent herein. The respondent was challaned in the police investigation and the petitioner and two others witnesses testified in Court in support of their allegation. However, the learned ATA Court acquitted the accused from the criminal charge.
4. The learned trial Court observed that a judgment of acquittal simpliciter is not sufficient to sustain a claim of malicious prosecution. He relied on two judgments in this behalf namely, Mst.
Afroz Qureshi and another v. Muhammad Ikram Sididqui (1995 CLC 735), Sher Muhammad v. Moula Bux (1995 CLC 1134). On that reasoning, the learned trial Court dismissed the suit. The learned appellate Court however, reversed the said decision in a belaboured judgment that proceeds on minor evidentiary inconsistencies but altogether fails to consider the presence of ingredients essential for establishing a claim of malicious prosecution. For present purposes, essential and relevant ingredient, namely, that the petitioner herein/defendant acted without reasonable and probable cause in launching her criminal prosecution has been completely ignored by the learned appellate Court whilst reversing the finding of the learned trial Court. The Hon'ble Supreme Court has observed in Subedar (Retd.) Fazale Rahim v. Rab Nawaz (1999 SCM R 700) that the charge of malicious prosecution cannot be laid unless it is proved firstly, that the prosecution was instituted without reasonable or A probable cause and secondly, that such prosecution was launched due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.
The learned appellate Court has not applied its mind to either of the foregoing crucial considerations for sustaining the claim. Likewise damages in the amount of Rs,24,500 have been awarded without any proof of loss. No evidence whatsoever about earning capacity, reputation or injured feelings of the respondent herein/plaintiff was brought on record. Therefore, the learned appellate Court had no material available to uphold the claim made in the suit and acted on assumptions. As such the appellate judgment is grossly deficient and suffers from wrongful exercise of jurisdiction.
5. In view of the foregoing, the impugned appellate judgment is set aside and the judgment of the learned trial Court is restored. Revision petition is allowed.