1. ' MUHAMMAD SAYEED AKHTAR, J.---The plaintiff/respondent filed a suit on 8-11-2001 for recovery of Rs,25,000 as damages for defamation. It was averred in the plaint that the plaintiff belongs to Syed Family. He was appointed as "Khateeb" by the Collector Okara with the contest of the residents of the village. The entire family was educated. The defendant filed a baseless W.P.No,19981 of 2000 in the High Court. The plaintiff had to defend the said writ petition and he spent about RS.25,000 in defending the same. After the disposal of the writ petition the plaintiff asked the defendant to pay him Rs,25,000 as expenses incurred in defending the writ petition.
2. The suit was resisted. Out of the pleadings of the parties following issues were framed:---
(1) Whether the plaintiff has not come in this. Court with clean hands? OPD.
(2) Whether the plaintiff has no cause of action to file the present suit? OPD.
(3) Whether the suit is based on mala fide intention which is liable to be dismissed under O.VII, Rule 11 C.P.C. ? OPD.
(4) Whether the plaintiff is entitled to get decree for recovery of Rs,25,000 as defemation? OPP.
(5) Relief.
2. ' After recording the evidence of the parties the learned trial Court vide its judgment, dated 20-12- 2002 dismissed the suit of the plaintiffs. On appeal the learned Additional District Judge, Okara allowed the same set aside the judgment of the learned trial B Court and decreed the suit of the plaintiff/respondent to the extent of Rs,15,000.
3. 2-A. Learned counsel for the petitioner contended that there was no reasonable and probable cause or that the petitioner was actuated by malice. He argued that nothing has been brought on the record to prove the malicious prosecution or the defamation suffered by the respondent.
4. ' Conversely the learned counsel for the respondent defended the impugned judgment.
3. I have considered the arguments of the learned counsel for the parties, gone through the judgments of the Courts below and perused the record. The, order passed on W. P. No, 19981 of 2000 Exh. P. 1 is reproduced as under:-- ' "The petitioner states that he is peacefully performing his duties as Imam and Police as well as Nazir Shah, respondent No,4, are not interfering in his work. The. Additional A-G. States that Majeed, S.-I., respondent No,2 has since been transferred. Riffat Hameed, A.S-I., PS Renala Khurd is present.
5. He has submitted ,his written reply stating therein that the things are peaceful at the spot; and that he has not interfered in the matter nor will he do so in future.
(2) In this view of the matter, the petitioner does not press the petition at this stage. Nazir Shah, respondent No,4, urged that he was legitimately appointed as Imam of the mosque and that the petitioner is a usurper. For this purpose, respondent No,4, may file a suit before the competent Civil Court."
6. ' The order shows that the writ petition was not pressed on the statement of A.S-I., P.S. Renala Khurd stating that he has not interfered in the matter nor will he do so in future." However, Nazir Shah (respondent) urged that he was legally appointed Imam of the mosque and the petitioner is a usurper. He was directed to file a suit before the Civil Court. In the case of Muhammad Akram Mst.
7. Farman Bi PLD 1990 SC 28 the Honourable Supreme Court of Pakistan laid down that the following elements of tests for malicious prosecution must be present:---
(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 has also affected her reputation; and finally;
(vi) That the plaintiff had suffered damage."
8. ' None of the essentials is present in the instant case. The writ petition was disposed of on the statement of A.S-I. That he did not interfere in the matter nor he intends to do so. As far as the office of "KOhateeb" is concerned, the respondent was directed to approach the civil Court. Nothing cogent has been brought on the record to show that the respondent was defamed which lowered him in the estimation of the right thinking members of the society. Similarly there is no documentary evidence to show that he C incurred Rs,25,000 as expenses for defending the aforementioned writ petition nor has he stated a word about the same in his testimony before the trial Court. The finding of the learned Additional District Judge on issue No,4 is perverse and unsustainable in law. I, therefore, allow this petition, set aside the judgment, dated 26-3-2003 passed by the learned Additional District Judge, Okara and restore that of the learned trial Court, dated 20-12-2002.