1. ' MUHAMMAD ALI MAZHAR, J.---The plaintiffs have filed this suit for recovery of damages amounting to Rs,10.5 billion with the following prayers:--
(1) Decree for the recovery of rupees ten point five billion against the defendants Nos.1 to 9 individually and collectively may kindly be issued and Bank interest may also be awarded.
(2) Any other relief(s) may also be awarded.
(3) No relief is being claimed against defendants Nos.10 and 11 they being co-accused with the plaintiff are necessary party and are being made pro forma defendants.
2. ' In the plaint it is inter alia contended that the plaintiff No,1 is a British citizen and has been permanently resident and domiciled in England since 1973 and the plaintiff No,2 is a company and is filing this suit through Mr. Lucius Halley a Director of the Managing Directors of the plaintiff No,2.
3. The plaintiff No,1 has high social status gave rise to a number of business opportunities being offered to him. In a direct consequence of malicious prosecution that was brought by the defendants against the plaintiff No,1 had to resign from all the community posts that he held and suffered a substantial loss of reputation which was directly followed by a loss of business opportunity and income. The Habib Bank Ltd. Under instructions from the defendant No,1 and by contract dated 8-4-1990 lent pounds sterling 50,00,000 to Fine English in England. By another contract on 17-5-1990, the Habib Bank Ltd. London, lent pounds sterling 81,00,000 to Fine English in England. On 19th July, 1990, the Habib Bank Ltd. London, lent pounds sterling 40,00,000 to Whites and Whites Ltd. This third loan was initially to be in favour of Fine English but was routed to Whites and Whites at the request of Habib Bank Ltd., London as if it were paid to Fine English this would breach Bank of England asset/security ratio regulations. In the arms-length negotiations of the loans referred to a paragraph above, Habib Bank, London, requested two Directors of Fine English and Whites and Whites to provide personal guarantees. Following discussion between the plaintiff No,1 and the staff of Habib Bank Ltd. London, it was agreed that guarantees would be given for decoration purposes only. The plaintiff No,1 was told that provided he and Mr. Hirji did not abandon the project, the guarantee could not be enforced. While the negotiations for rescheduling were under way, the defendant No,1 never communicated to the plaintiff No,1 who was negotiating on behalf of Fine English and Whites and Whites regarding their loans criminal litigation was in progress in Pakistan. The plaintiffs came to know on 4-9-1990 an F.I.R. Was registered at FIA on the statement of M. Zafar Iqbal, Joint Secretary, Ministry of Finance, Government of Pakistan, Islamabad under sections 420, 468, 471, P.P.C. And section 5 of Prevention of Corruption Act. It was alleged that the State Bank of Pakistan probed in the working of Nationalized Banks through an inspection team.
4. It was alleged that according to the report, the bank officials have abused their position to provide pecuniary gains to some people, beyond consideration of merits and have caused wrongful loss to the Banks. The inspection team prepared a list of 31 cases which were annexed with the complaint.
5. A challan against the plaintiff and defendants Nos.10 and 11 was put before the Special Court (Offences in Banks) at Karachi for criminal proceedings. No notice of criminal proceedings was ever issued to the plaintiff No,
1. By suppressing this fact, the defendants Nos.1 and 2 obtained a declaration that the plaintiff Nos.1 was an absconder and non-bailable warrants of arrest were issued. The plaintiff No,1 was not given notice of the criminal proceedings in Pakistan. The Court's decision that the plaintiff No,1 was an absconder, is a decision that was based upon incorrect, false and misleading statements. After putting the challan by the FIA before the Special Court (Offences in Banks), the learned Presiding Officer was pleased to charge the accused under sections 409 and 109, P.P.C. Read with section 5 of Prevention of Corruption Act. The defendants Nos.3 to 9 who were employees of the defendant No,1 voluntarily appeared as prosecution witnesses. The criminal proceedings against the plaintiff No,1 were initiated maliciously and without probable cause. The defendant No,1 produced its employees i,e, defendants Nos.3 to 9 as witnesses. These witnesses made statements against the plaintiff No,1 and tried to show that a simple business transaction had a criminal mens rea. They tried to prosecute the plaintiff No,1 for an offence which he did not commit. The offence charged was a felony and a misdemeanor. All the defendants, except defendants Nos.10 and 11 voluntarily advised, aided and assisted in the prosecution of the case against plaintiff No,
1. It was at their instance and the plaintiff No,1 malicious prosecution was carried. They are solely and collectively liable. The plaintiff No,1 filed a quashment petition in this court, which was allowed on 20-7-1994.
6. It is well-settled proposition of law that the malicious prosecution is malicious institution against another of unsuccessful criminal, or bankruptcy, or liquidation proceedings, without reasonable or probable cause. In an action for malicious prosecution the plaintiff must prove:--
(1) That he was prosecuted by the defendant.
(2) That the proceedings complained of terminated, in favour of the plaintiff from their nature they were capable of so terminating.
(3) That the prosecution was instituted against him without any reasonable or probable cause.
(4) That the prosecution was instituted with a malicious intention that is not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact.
(5) That he has suffered special damage, when the proceedings are other than criminal proceedings, unless the proceedings are such as from their very nature are calculated to injure the credit of the plaintiff.
7. ' According to II ASIL (1996)147; Fleming: Torts 1977, Edn.5, P.597. The law of malicious prosecution tries to balance two conflicting interests of high social importance: one, the privilege of every citizen to put the machinery of law in motion 'for the purpose of assisting and aiding law enforcement, and the other, the desire to safeguard an individual from being harassed by unjustifiable litigation. The law desires, expects and encourages a citizen to assist the law enforcement by bringing anti-social elements in society to the bar of justice and grants him immunity for his bona fide efforts in so doing, but when such cases result in favour of the deceased the law is eager to protect the complainant from the inborn wrath and prejudice of the offender and it thus does not allow scandalous litigation to grow because to allow it is to expose a citizen to a serious injury to his self-respect, honour, credit and reputation. The law, therefore, is ultimately concerned with a proper adjustment between two interests and the principle of social policy. This is so important that the action for malicious prosecution is more carefully guarded than any other in the law of torts.
8. ' The Halsbury's Laws of England, Vol.22 (2nd Ed. By Hailsham) at page 3, defines the word prosecution as under:- "A prosecution exists where a criminal charge is made before a judicial officer or tribunal and any person who makes or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it, and is called the prosecutor. Thus a person who lays before a Magistrate an information stating that he suspects and has good reasons to suspect another, or who prefers a bill of indictment, is engaged in a prosecution; and he may responsible for the prosecution, even though the charge made before the Magistrate is an oral one."
9. ' According to the Corpus Juris Secundum sets out in Sec.35 (Pages 405-06), the requisite knowledge of prosecutor as follows:-- "The facts relied upon to constitute probable cause may be those which are within the personal knowledge of the prosecutor, or those of which he learns from proper information derived from others or both. Probable cause is wanting where he acts on facts within his own knowledge which, to his knowledge, do not constitute a crime, or where notwithstanding the sufficiency of the facts on which he makes this accusation, he has knowledge of other facts which satisfactorily show accused's innocence. If he acts on information derived from others making an accusation, these facts to operate as a defence by way of probable cause must relate to the question of guilt. And the test of the sufficiency of the resulting knowledge is whether it would have justified a prudent, honest and strong suspicion of the guilt of accused. Obviously mere rumor or information which the party making the accusation knows to be false, or which does not tend to establish the guilt of accused, or a mere statement by third parties that they believe that accused had committed a crime, does not establish probable cause for the prosecution."
10. ' The plaintiffs have shown the cause of action in paragraph 31 of the plaint which reads as under:- "The cause of action arose to plaintiff on 20-7-1994 when this Court quashed/acquitted them in the original proceedings initiated against them."
11. ' Vide order dated 24-11-2008, this Court took a judicial notice that suit appears to be time bared under Article 23 of the Limitation Act. ' Therefore, in presence of the counsel for the plaintiffs and defendants Nos.1 to 9, a preliminary issue was settled:-- "Whether the suit filed by the plaintiff is time-barred."
12. ' After settlement of aforesaid preliminary issue, the office was directed to fix the same for hearing after notice to the parties. Since 19-4-2010, nobody appeared for the plaintiff to argue the preliminary issue framed by this Court . On 23-8-2010, I had partly heard Mr. Ghulam Murtaza, counsel for the defendant and since nobody was present for the plaintiff again in the interest of justice, I directed the office to issue notice to the plaintiffs for 31-8-2010 but nobody appeared for the plaintiffs to address the preliminary issue. It is well settled and golden age principle that for the purpose of rejection, only the averments of the plaint are to be considered. In paragraph 31 of the plaint, the plaintiffs have clearly mentioned that cause of action for the present suit was arisen to them on 20-7-1994, when this Court quashed/acquitted the plaintiffs. In paragraph 30 of the plaint it has been mentioned that the malicious prosecution of the plaintiffs was done at Karachi, therefore, this Court has territorial jurisdiction to proceed the matter.
13. ' According to Article 23 of the Limitation Act, the limitation for filing suit for compensation for a malicious prosecution is one year and %the limitation starts to run from the date of acquittal of the plaintiff or the prosecution is otherwise terminated:-- Limitation Act Description of Suit Period of Limitation Time from which period begins to run
23. For compensation for a malicious prosecutionOne year When the plaintiff is acquitted, or the prosecution is otherwise terminated.
14. ' Article 23 of the Limitation Act applies where the suit for damages claiming compensation for malicious proceedings. Suit for malicious prosecution must be filed within one year from the date of acquittal of plaintiffs. The foundation of an action for malicious prosecution lies in the abuse of the process of the Court by wrongfully setting the law into motion and it is designed to discourage the provision of the machinery of justice for an improper purpose.
15. Section 3 of the Limitation Act provides as under:-- "Dismissal of suit, etc., instituted etc., after period of limitation. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.
16. Explanation. A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator. The learned counsel for the defendant argued that the suit is time barred and he relied upon the following judgment: --
(1) Nasir Raza Jafery v. Messrs Macter Pharmaceutical (Pvt.) Ltd. PLD 1998 Kar.250. In this judgment, the learned Single Judge of this Court has held that under section 3 of the Limitation Act, Court would be duty bound to determine question of limitation irrespective of the fact whether such plea was raised or not. Article 23 of the Limitation Act, 1908 would be applicable where suit for damages had been filed claiming compensation for malicious prosecution.
(2) Abdul Aleem Butt v. Messrs Behria Foundation PLD 2008 Kar.25. In this case, the learned single Judge has held that plaintiff was acquitted from criminal case, which was got registered against him by defendant, suit was filed by plaintiff for damages for malicious prosecution but defendant raised objection that suit was barred by limitation. Plea raised by plaintiff was that . After excluding time consumed for getting attested copy of judgment, the suit was within time. Exclusion of time consumed in obtaining certified copy of orders for the purpose of filing of suit was not provided in section 12 of Limitation Act, 1908. Benefit of section 12 of Limitation Act, 1908, was not available to plaintiff for the purpose of filing the suit and it was barred by Article 23 of Limitation Act, 1908. Suit was dismissed in circumstances.
(3) Muhammad Zuabir Qureshi v. Munir Hussain Zubair Qureshi PLD 1991 Kar.214. In this case, the learned single Judge of this Court has held that the suit for compensation/damages on account of wrongful imprisonment. Such suit to be filed within one year when imprisonment had ended.
17. Plaintiff having filed suit beyond one year, same would be time-barred.
18. ' The case-law relied upon by the learned counsel for the defendants are attracted to resolve the present controversy and in addition thereto, I would like to rely myself on a judgment reported in 19 DLR 514 in which it was held that the law of limitation is a law which is designed to impose a quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. The main purpose of the Limitation Act is to guillotine cases which seek reliefs at a point of time which is beyond the period specified thereunder. In another judgment reported in Hakman and others v. Mst. Satto PLD 1958(W.P.) Lahore 936, the learned Divisional Bench of Lahore High Court held that provisions of the statutes of limitation must be applied without regard to equitable considerations. Those provisions are founded on the policy of law which, in the interests of the community as a whole, requires that there should be some point after which old and ancient disputes should not be agitated. The periods of limitation prescribed in pursuance of such a policy must necessarily, at least in some cases, be artificial and arbitrarily and must be applied regardless of hardship in individual cases. These considerations, however, cannot apply to a case where a particular provision in a statute of limitation is not clear and definite. In construing such provisions considerations of justice and equity cannot be ignored. When more than one interpretation is fairly and reasonably possible, that which leads to manifest absurdity or injustice must be avoided. It would be a lamentable and intolerable state of law if it were not so.
19. The bottom line of this discussion is that the cause of action was accrued to the plaintiffs on 20-7- 1994 and the suit was filed on 6-8-1995, which is clearly time-barred under Article 23 of the Limitation Act. According to a judgment reported in Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153, the honourable Supreme Court held that matter of limitation not left to pleadings of parties but it was imposed on court itself in this regard-Limitation being matter of statute and provisions being mandatory, same could not be waived and even if waived could be taken up by party waiving it and by court itself. Defendant, however, in exceptional cases, was debarred from raising plea of limitation on general principle of estoppel arising from his conduct particularly if plea belatedly taken involved an inquiry on facts. Suit instituted after period.
20. Of limitation subject to provisions of Ss.4 to 25, Limitation Act, 1908, to be dismissed although limitation had not been set up as a defence. Waiver by parties would not relieve court itself of its duty under S.3. Duty of court to notice point of limitation, whether plea of limitation was raised or not. Waiver of question of limitation was not permissible, even where period of limitation was prescribed by special or a local law.
21. For the foregoing reasons, the suit is dismissed. Learned counsel for the defendants further submitted that in the written statement, the defendant No,1 has claimed set off and judgment and decree against the plaintiff No,1 for a sum of 20,029,863 and 117,580.95 with profit, mark up/cost of funds which is payable by the plaintiff No,1 to the defendant No,1 under the guarantee. Office is directed to fix the defendant No, l's claim of set off for settlement of issues and further proceedings.