' SYED ASGHAR HAIDER, J.---The petitioner filed a suit for damages against the respondent stating that the respondent lodged F.I.R. No.333 of 2003, under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Sadar Okara, he was arrested and later granted post-arrest bail, he remained in confinement, after investigation the case was found false and cancelled. The petitioner's liberty was illegally interfered into with, he suffered mental torture, agony and irreparable loss to his reputation and honour for vindication he claimed damages in the sum of Rs.25,000. The respondent contested the suit by filing written statement, of the divergent pleadings of the parties issues were framed the parties were put to trial and thereafter, the suit dismissed. Aggrieved thereof the plaintiff-petitioner filed appeal, which too was dismissed. Hence the present petition.
2. Learned counsel for the petitioner contended that he produced quality evidence and proved his cause both the Courts below concurrently ignored material evidence on record misapplied the law did not advert at all to his evidence, therefore, the judgments are not tenable in law. Learned counsel for the respondent vigorously defended the impugned judgment and submitted that there was no malice on the part of the respondent, the F.I.R., was lodged in accordance with law and concurrent findings of fact cannot be interfered within the present jurisdiction.
3. I have heard the learned counsel for the parties and perused the impugned judgment as well as judgment of the trial Court. The petitioner appeared as P.W.1 and stated in categorical, clear and unequivocal terms that the F.I.R., was falsely lodged against him, he remained in jail for 5/6 months and had to suffer loss in the sum of Rs.25,000, the F.I.R. Was found false and therefore, he is entitled to recover damages. He adverted to monetary losses in the sum of Rs.1,75,000, but was not put to cross-examination qua his assertion, thus the assertion stands proved. It stands admitted on record, that F.I.R., was lodged, the petitioner was arrested, he remained confined, the F.I.R., was found false and he was exonerated. The lower appellate Court adverted to these points but dismissed the appeal holding that there was no malice on part of the respondent/ defendant.
"According to Stroud's Judicial .Dictionary, Malice, in common, means ill-will against a person, but in its legal sense, it means wrongful act done intentionally without just cause or excuse. Webster terms it as the state of mind manifested by an intent to commit an unlawful act' a deliberate intention to commit the act. The F.I.R., was lodged out of venom and vengeance to avenge from the petitioner, the fall out of choice marriage of respondent Inayat Bibi's daughter with Muhammad Rafique, who purportedly was a relative of the petitioner. The respondent while appearing as D.W.1 affirmed the marriage of her daughter with Muhammad Rafique and also averred a specific role to the petitioner which later was found false and he was exonerated, therefore, malice is evident from the contents of the F.I.R. This has been further affirmed by the petitioner while appearing as P.W.1. All this vital, significant and precious evidence was concurrently not considered by the Courts 'below.
Further they also failed to note the B effect of agony and trauma the petitioner suffered, right to unrestricted movement and liberty is the most precious right an individual has, the petitioner was incarcerated and kept in confinement for no fault of this alone entitles him to compensation. Both Courts below ignored all material evidence in his context thus there is misreading of evidence and thereby both the Courts failed to exercise jurisdiction vested in them. Resultantly, this petition is allowed, judgment and decree of the trial Court dated 2-2-2006 and the judgment and decree of the lower appellate Court dated 22-5-2006 are set aside and the suit decreed as prayed for the B parties to bear their own costs.