ATTAULLAH KHAN, J.---This judgment shall dispose of two Civil Revision Petitions bearing Nos.239 and 240 of 2006, titled Abdul Khaliq v. Gul Faraz Khan and Amir Khan v. Gul Faraz respectively, because both these petitions are the outcome of one and the same judgment, dated 14-6-2006 passed by the learned Additional District Judge-II, Lakki Marwat.
2. Facts of the cases are that the respondent Gul Faraz Khan had prosecuted the petitioners in F.I.R.
No,21, dated 21-1-2001 under sections 436/34, P.P.C. Which ultimately ended in their acquittal.
Thereafter, the petitioners sued the respondent for damages of Rs,24,500 and mental torture in two different Suits Nos. 240/1 and 241/1 which were decreed to the extent of Rs, 12,000 each vide judgment and decree dated 28-4-2005 passed by the learned Civil Judge, Lakki Marwat. But on appeal, the said judgment and decree were set aside by the learned Additional District Judge-II, Lakki Marwat vide her judgment and decree dated 14-6-2006. Hence these revision petitions.
3. Learned counsel for the petitioners argued that the respondent had failed to prove his cases against the petitioners due to which they were acquitted by the trial Court in the case mentioned above, therefore, their suits for damages and malicious prosecution were rightly decreed by the Civil Court. He urged that the appellate Court has wrongly set aside the same and its findings are thus based on surmises, conjecturers, misreading, and non-reading of material evidence brought on record which are liable to be set aside.
4. On the other hand, learned counsel for the respondent supported the impugned findings of the lower appellate Court. He urged that the trial Court has acted without jurisdiction because the case of the petitioner falls under the domain of Defamation Ordinance, 2002 and according to section 13 thereof, only the District Judge is competent to try cases of such like nature. He next submitted that notice as required under section 8 of the Ordinance ibid has also not been given to the respondent, therefore, the suits were otherwise time-barred.
5. I have carefully examined record of the cases and considered the arguments of the learned counsel for the petitioners.
6. Two points for determination have emerged. The first is proof of allegations levelled against the petitioners and the second is jurisdiction of the Civil Judge.
7. As far as the first point is concerned, the plaintiff/respondent had sued the petitioners for damages, therefore, the burden lies upon him to establish that the criminal case against him is false and frivolous. It means that the plaintiff is required to prove his malicious prosecution. The evidence on record discloses no such malicious prosecution. Mere acquittal is no _ground for claiming damages for malicious prosecution. Acquittal may be for the reason of doubtful involvement of the accused and may be based on benefit of doubt. In such circumstances, no clear cut case could be made for damages. The judgment of the Magistrate acquitting the plaintiff is on file as Exh.P.W.1/1 and its last paragraph reveals that the plaintiff/petitioners were acquitted of the charge because they stated on oath that they did not indulge in malicious prosecution and the complainant party failed to establish the charge on the strength of evidence. Since the innocence of accused was supported by oath, therefore, they were acquitted which is unrebuttable.
8. In the case in hand, Article 163 of Qanun-Shahadat Order, 1984 is relevant and not sections 8 to 11 of the Oath Act, 1873. The oath prescribed in Oath Act is binding, upon the parties, while oath under Article 163 of Qanun-e-Shahadat Order 1984 is not binding. In case of rebuttal of oath by the other side, the Court would proceed by recording c evidence. The Magistrate seems to have influenced from Oath Act, 1873 and last sight of Article 163 of Qanun-e-Shahadat Order 1984.
9. In this respect, I may refer to PLD 1993 Peshawar 72 and in paragraph-5 thereof, it has been held as under:-- "The first contention raised by the learned counsel for the petitioner is misconceived, as the oath taken by the respondent having emanated from the offer made by the petitioner of his own free will and accord is governed by sections 8 to 11 of the Oaths Act, 1873 and not by Article 163 of Qanun-e-Shahadat 1984. The oath within the contemplation of sections 8 to 11 of the Oath Act, 1873 stems from a voluntary agreement between the parties and when taken has a binding effect leaving the party , making the offer with no choice to turn around and strike a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad Ismail (1982 SCM R 908), Firm Chiragh Hussain v. Khawaja Habib (PLD 1983 SC (AJ&K) 86, Khan Sher v. Mst. Kabla and another Jooer (PLD 1988 Peshawar 86) and Muzaffer Ali and 2 others v. Ch. Asghar Ali (1991 CLC 2110), while the oath, envisaged by Article 163 of the Qanun-e-Shahadat 1984, is entailed by the initiative taken by the plaintiff who takes an oath in support of his claim first and then on his application the Court calls upon the defendant to deny the claim on oath and in any event the Court is not precluded and deciding the case on merits as observed in Rahmatullah v. Nasir Khan and 7 others (1991 MLD Peshawar 101, Nazir Ahmad v. District Judge Liayah (PLD 1986 Lahore 137) and Muhammad Shahbaz v. Ghulam Rasool (1987 CLC 1512). In technical terms, the oath referred to in Article 163 of the Qanun-e-Shahadat 1984 is a general oath and the oath provided by Oaths Act, 1873 is a special oath and both are diametrically opposed to each other".
10. In view of the above dictum, it is clear that the acquittal of the plaintiffs would not entitle them to any damages for malicious prosecution, because of decision on oath of accused.
11. Even otherwise, the plaintiffs have failed to prove their cases for malicious prosecution, because the ingredients thereof are not available. The plaintiffs were required to prove that their prosecution was malicious but they have failed to show that their acquittal would make the case for damages and it is necessary to prove that the prosecution of the petitioners was because of some motive. So the basic ingredients for damages were missing, therefore, on this count too, the petitioners were not entitled to any damages.
12. As far as the question of jurisdiction of Civil Judge is concerned, it is also doubtful. The plaints of the plaintiffs reveal that the suits were for damages caused to the plaintiffs on account of mental torture. In this respect, Issue No,2 has been framed which is regarding false and frivolous litigation.
So in my view, this is a case covered under Defamation Ordinance, 2002 and according to section 13 thereof, only the District Judge has jurisdiction to try such cases and the jurisdiction of Civil Judge has been excluded. In such like cases, the dismissal of suit under Order VII Rule 11, C.P.C. Was approved by this Court in the case reported in PLD 2006 Peshawar 206.
13. In short, even on merits, the petitioners have failed to prove their cases for damages as prayed for. Even the jurisdiction of Civil judge for granting decree is also doubtful.
14. As a corollary to what has been discussed above, I find no merit in either of the two revision petitions which are accordingly dismissed leaving the parties to bear their own costs..