JUDGMENT ZIA-UR-REHMAN KHAN, J. This court intends to dispose of the instant petition and the connected petitions Nos.132 and 133 of 2010 because all the three impugn the judgments and decrees of the learned Appellate Court dated 16-9-2009 and that of the learned Civil Court dated 24-5-2007, whereby through their separate findings of the even dates the appeals and suits of the petitioners filed by them against the respondents have been dismissed.
2. Relevant facts precisely stated of all the three petitions are that respondents on 6-8-1997 filed a private complaint under sections 379/403/406/34, P.P.C. Against the petitioners before the Court of Illaqa Magistrate on the ground that the petitioners being tenants had misappropriated/ stolen certain poplar trees having been cut from the tenanted property. The said complaint was processed and after recording the evidence of the respondent dents, the same was dismissed under section 249-A Cr.P.C. Vide order dated 6-3-2002 on the ground that the evidence so collected was deficient in nature and onward proceedings was a futile exercise, resultantly the petitioners were discharged of the charge levelled against them in the said complaint. Being aggrieved of their prosecution at the hands of the respondents, all the three petitioners filed three separate suits against the respondents for the recovery of damages, having been sustained by them as a result of the said malicious prosecution. Petitioner Ghulam Muhammad claimed one million, while the other two petitioners claimed 24,999 each. On being summoned the respondents opted to contest the claim of the petitioners by filing their written statement, wherein they refuted all the assertions and the learned trial Court after framing proper issues put them on trial, on the conclusion whereof all the three suits through separate judgments were dismissed. The same was the fate of their appeals, thus the instant petitions.
3. Learned counsel for the petitioners while delivering arguments in all the petitions vehemently contended that the petitioners have fully proved through their convincing evidence that they were prosecuted with malicious intention by the respondents, but despite that the Courts below have non-suited them; that it is abundantly clear from the material available on the record that the complaint of the respondents regarding the misappropriation of the cut trees was without probable cause and reason and as due to filing of the said complaint the petitioners were arrested, they were humiliated and in this way their reputation in the society was lowered and damaged, but the Courts below have badly failed to pay any heed to this aspect of the case; that all the petitioners were falsely enrouped in the complaint ease and as the same was baseless, hence, they were acquitted on merits rather than on any technical ground; that the impugned findings are the result of misreading, non-reading and misapplication and non-application of the judicial mind, thus the same are not sustainable in the eyes of law; that the appeal of petitioner Ghulam Muhammad in view of its valuation was filed before the High Court and on its return the same was filed before the court of Sessions, soon thereafter, but the said court has erroneously held the same to be beyond the prescribed period of limitation. He lastly contended that the petitioners arc not the tenants of the respondents of the property upon which the said trees were standing. In order to vigourate his arguments he referred to certain precedent cases including 1999 SCMR 700.
4. Conversely the learned counsel for the respondents while repelling the arguments of the learned counsel for the petitioners argued that the respondents were justified in filing a complaint against the petitioners, because it were they, who misappropriated the trees from the property, which is owned by respondent No.1, but is under cultivation of the petitioners. He further contended that the discharge of the petitioners was on technical ground i.e. Under section 249-A Cr.P.C. And not on merits and as such the prosecution of the petitioners was not without reasonable and probable cause, thus they are not entitled to recover any amount as damages. He supported the concurrent findings having been recorded by the two courts below.
5. Arguments heard and record perused.
6. This court would like to take combined effect of the submissions and arguments made by learned counsel for the parties.
7. Perusal of the record shows that certain facts are undisputed between the parties. For example the respondents are not denying that they did not file a complaint against the petitioners and as a result of the same they were not arrested, prosecuted and discharged.
8. The only questions needing resolution by this Court are as to whether due to the implication of the petitioners in a criminal case through private complaint and their subsequent acquittal or discharge was the result of "malice" and the prosecution was full of spite or hatred and the respondents were bent upon to seek the prosecution of the petitioners swayed by their personal feelings. It is also to be seen and examined in the instant cases, whether the petitioners through cogent and convincing evidence have proved the said malice affirmatively and there was no reasonable and probable cause for lodging the said complaint. Although the learned trial Court while deriving guidance from the judgment of the august apex Court reported as 1999 SCMR 700 titled "Subedar (Retd.) Fazle Rahim v. Rab Nawaz" did formulate and analyze the prerequisite conditions one by one contained in the said judgment and thereafter dismissed the suit of the petitioners, yet once again in the light of the said parameters enunciated in the said judgment referred to by making the same a yardstick for gauging the assertions of the petitioners while claiming special damages against the respondents, it becomes more than crystal clear upon this Court that they are not entitled to the receipt of any special damages. Because the apex court in the supra judgment in categorical terms has observed as under:-- "(b) Malicious prosecution--- ---Mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."
9. Earlier too the august apex Court reported as PLD 1994 SC 476 titled "Abdur Rauf v. Abdur Razzaq and another" while laying down the same principles has held as under:-- "(d) Malicious prosecution- ---Suit for---Proof of existence of malice itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause.
(f) Malicious prosecution--- Damages---" Special Damages" could be awarded only on strict proof thereof.
10. In the said judgment there is much stress and emphasis upon strict proof and non-existence of probable and reasonable cause. In the case in hand although all the petitioners have claimed that there liberty was illegally interfered into with, they suffered mental torture, agony and irreparable loss to their good reputation and honour in the society due to the vindication and humiliation at the hands of the respondents. But all these assertions so asserted by them do not stand proved with the help of any degree of evidence of a predominant nature. Rather the same stand falsified in view of the available record, the perusal of which also indicates that the petitioner Sher Muhammad (father of the petitioners) is adjudged to be the tenant of respondent No.1 pertaining to the property "upon which the said trees were standing" by the Revenue hierarchy up to the Board of Revenue, and even confirmed by the High Court in Writ Petition No.717 of 2006. The said decisions in favour of the respondents are indicative of the fact that their complaint regarding the misappropriation of the trees was not without probable and reasonable cause and their intention to seek the prosecution of the petitioners was not tainted with any malice.
11. Similarly the observations of the two Courts below that the acquittal of the petitioners in the complaint was not on merits, rather it was on technical ground, due to insufficiency of evidence, under section 249-A, Cr.P.C. And as such they are not entitled to any damages, are also not without force. Because a cursory glance on the contents of the decision of the concerned Court makes it explicitly clear that the said Court was exercising its power and jurisdiction under section 249-A Cr.P.C. For which no stage is fixed. Meaning thereby that the trial of the said complaint was not completed and certain proceedings were yet to be carried out. The said decision further reveals that the petitioners were not acquitted, rather discharged. At this juncture another legal question crops up for consideration is whether the termination of further proceedings and its ultimate culmination into the discharge of the petitioners was legally tantamount to their acquittal as well and can be made a valid base for claiming damages, or the same embody two different meanings. The definite answer to the said question is that acquittal and discharge are two different terminologies and are diametrically not synonymous. According to Chambers 21st Century Dictionary acquittal: "means to declare a person accused of a crime to be innocent". On the contrary discharge means: "to release someone from custody" or allow someone to leave, or "to pay of". What can irresistibly be derived from the aforesaid definition is that it was not an acquittal rather it was tantamount to their discharge under section 249-A, Cr.P.C. For which no special damages can be claimed. Reliance in this regard can well be placed upon a judgment reported as PLD 2003 (AJ&K) 1 titled "Khurshid Iqbal v. Allied Bank of Pakistan", relevant citation whereof is reproduced as under:-- "(b) Tort--- ----Malicious prosecution---Suit for damages--Proof---Mere dismissal of criminal case under.
Section 249-A, Cr.P.C. By itself would not be sufficient under law to claim damages from defendant."
12. Another worth consideration aspect of the case, which shall also not lose sight of this Court is that ail the petitioners in their separate suits have claimed damages in pursuance of the criminal case as mental torture, reputation loss, but they failed to claim such damages in their plaints or in their Court depositions on each score, nonetheless, they were required to have specified the claimed amount. Reliance in this regard can well be placed upon a judgment reported as 2007 MLD 1657 titled "Ghulam Ali v. Ranjho Khan", the relevant citation is quoted as below:- "(a) Malicious prosecution--- ---Damages, suit for---Acquittal of plaintiff in criminal case after giving him benefit of doubt--- Claim of damages pertained to expenses incurred on pursuing criminal case, suffering of mental torture, material and reputation loss---Damages neither claimed in plaint separately on each score nor proved by evidence on each point evidence adduced by plaintiff being general, vague and scanty could not be relied upon---Mere filing of criminal complaint and acquittal of plaintiff by extending him benefit of doubt, would not be sufficient by itself to establish case for malicious prosecution against him---Suit was dismissed in circumstances".
(b) Tort-- ---Damages, suit for---Such suit could be decreed only when damages suffered were mentioned in plaint on each score separately and proved by evidence on each point."
13. The facts of the supra case amply fulfill the requirements of the instant cases, wherein all the said details are badly lacking.
14. Although petitioner Ghulam Muhammad, who is the son of petitioner Sher Muhammad and brother of petitioner Mir Afzal, in his petition has claimed that he is a Government Servant and enjoys a stainless and unblemished reputation in the eyes of his colleagues and high ups, but due to his involvement in a criminal case his reputation and honour was besmirched, tarnished and he has had a smudge and scar on his reputation, is also not tenable because in this regard he has not produced an iota of evidence. Moreover, he first filed an appeal before the High Court in view of the valuation of his suit, but later on its being returned on 9-8-2007 the same was submitted before the Court of Sessions on 20-8-2007 i.e. After eleven days and as by then his appeal had become barred by limitation, thus the Appellate Court has rightly held the same to be beyond the prescribed period of limitation, which is 30 days. Likewise the other petitioners have also miserably failed to substantiate their claim through corroborative evidence regarding the alleged loss of reputation Land mental torture.
15. In view of the above backdrop this Court has come to an irreversible conclusion that both the Courts below after scanning and subjective examination of the entire material available on the record have rightly non-suited the petitioners by dismissing their suits and appeals through their concurrent findings. Since they have not committed any irregularity or palpable illegality in recording the said judgments, nor the same are the product of any non-reading or misreading or any other legal infirmity, as such the same are impenetrable to any attack and exception. As the petitioners have not been able to persuade this Court by making out a case of indulgence in view its supervisory jurisdiction under section 115 C.P.C., resultantly petitions in hand being devoid of substance and merits are hereby dismissed, leaving the parties to bear their on costs.