' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Master Abbas Khan son of Karam Dad caste Awan Rajpoot, resident of Thaneel Fatohi, Tehsil and District Chakwal being involved in case F.I.R. No, 175 of 1992, dated 2-8-1992, offence under sections 302, 324, 34, P.P.C., registered with Police Station, Saddar, Chakwal was tried by learned Additional Sessions Judge, Chakwal, who vide judgment dated 30-4-1994, acquitted the appellant by extending him the benefit of doubt. The allegation against the appellant as per F.I.R. Was that on his abetment the aforesaid occurrence took place, in which two persons from one side and one from the other side lost their lives.
2. After acquittal from the above said case, the appellant filed a suit for damages seeking recovery of rupees sixty lacs for malicious prosecution as compensation for mental torture, as well as causing irreparable loss to the dignity and respect of the appellant and also loss caused to his business and the expenses borne by him for pursuing the matter. The suit for recovery of damages was resisted by the respondents by way of filing written statement, whereupon following issues were framed by the learned trial Court:-- ISSUES:--
(1) Whether the suit is pre-mature, if so, its effect? OPD.
(2) Whether the plaintiff has no cause of action in view of preliminary objection No,2 of the written statement? OPD.
(3) Whether the suit is bad for non-joinder of necessary parties? OPD.
(4) Whether the suit is mala fide, if so, its effect? OPD.
(5) Whether the defendants are entitled to special costs, if so, to what tune? OPD.
(6) Whether the defendants maliciously prosecuted the plaintiff and thus caused mental as well as physical torture to him? OPD.
(7) Whether the plaintiff is entitled to the damages? OPD.
(8) If the above two issues are proved, then to what quantum of damages the plaintiff is entitled to? OPD.
(9) Relief.
3. After recording the evidence of both the parties, the learned trial Court vide judgment dated 22- 12-2000 dismissed the suit leaving the parties to bear their own costs. The learned trial Court held that as the appellant was acquitted of the charges by extending benefit of doubt; therefore, he was not entitled to recover the damages from the respondents.
4. Feeling aggrieved by the judgment rendered by the learned trial Court, the appellant has brought the instant Regular First Appeal before this court calling in question the vires of judgment dated 22-12-2000 due to peculiar monetary jurisdiction. As Subedar Sikandar Khan/respondent No,1 died during pendency of the instant Regular First Appeal, therefore, C.M. No, 873-C of 2010 was brought by the appellant for impleading his legal heirs which was allowed and resultantly amended memo of parties was filed by the appellant.
5. Learned counsel for the appellant submitted that the judgment of the learned trial Court is against the law and facts, which is result of mis-reading, non-reading and erroneous appreciation of evidence on the record. Learned counsel next submitted that it was categorically proved that the appellant was not present at the place where the factum of conspiracy was shown to have been hatched. It was next argued that though the prosecution has produced two witnesses namely Khalid Abbas and Fateh Muhammad regarding the conspiracy, but still the learned trial Court while acquitting the appellant gave the reasoning, which is reproduced as under:-- "To constitute conspiracy, some conversation inter se the accused persons regarding the commission of any offence is required and to constitute abetment, the prosecution has to prove that certain persons have committed an offence on the asking of any other person. In the instant case the prosecution's allegation is that Abbas Khan accused has conspired and abetted the other accused persons for the murder of Abdul Rehman, Muhammad Iftikhar and for the murderous assault upon Muhammad Iqbal P.W. The prosecution has not produced any evidence about conspiracy inter se the accused persons or that Abbas Khan accused has abetted his co-accused.
The prosecution has only produced the above said two witnesses who have allegedly over heard two sentences from Abbas Khan accused which he has said to Sher Muhammad. P.W.14 Khalid Abbas and P.W.15 Fateh Muhammad have admitted their close relationship with the deceased as well as with Sher Zaman P.W. It is not possible for a person who is so closely related to the complainant party to remain silent after hearing the decision of death of their relatives. At the same time it was also not possible for Abbas Khan to declare his intention to kill complainant party in the presence of two persons who were closely related to them. Besides this the statements of these two P.Ws. Are not trustworthy in the light of statement of Muhammad Iqbal injured/P.W. Who has stated it correct that Abbas Khan and Aurangzeb accused were arrested by the police on 26- 7-1992 and according to Exh.DJ, copy of Rapt No, 45 Roznamcha Waqiati Police Station Saddar, Chakwal, the said two accused persons were released on bail on 27-7-1992 at about 6:55.
' Learned counsel submitted that as the prosecution remained unable to prove the role ascribed to the appellant i.e., abetment, and as such he was acquitted by the learned Additional Sessions Judge, Chakwal, honourably, therefore, he is fully entitled to claim damages prayed for. Learned counsel for the appellant while referring reported cases Altaf Gohar v. Walid Shams ul Hassan (PLD 1981 Karachi 515), Muhammad Akram v. Mst. Farman B (PLD 1990 SC 28), Syed Ahmed Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. Islamabad (1993 SCMR 441), Muhammad Yousaf v.
Sved Gavur Hussain Shah (1993 SCMR 1185), Sufi Muhammad Ishaque v. Metropolitan Corporation Lahore through its Mayor (PLD 1996 SC 737), Sub (Retd.) Fazale Rahim v. Rub Nawaz (1999 SCMR 700), United Bank Ltd. v. Raja Ghulam Hussain and others (1999 SCMR 734) has prayed for awarding damages to the tune of sixty lacs to the appellant.
6. On the other hand, learned counsel for the respondents has vehemently opposed the contentions advanced by the learned counsel for the appellant. It is submitted that the judgment rendered by the learned trial Court in the suit for recovery of damages is well versed, well reasoned and quite in accordance with law and calls for no interference by this court. It was submitted that the appellant was acquitted of the charges by the learned Additional Sessions Judge while extending him benefit of doubt and as such the learned trial Court has rightly dismissed the suit for damages and ultimately prayed for dismissal of the RFA in hand.
7. We have heard arguments advanced pro and contra by learned counsel for both the parties and gone through the record.
8. There is no denial to this factum that the appellant was involved in case F.I.R. No, 175 of 1992, dated 2-8-1992, offences under sections 302, 324, 34, P.P.C. Registered with Police Station, Saddar, with the allegation of abetment and in the unfortunate occurrence, two persons from the side of the respondents and one person from the appellant's side was murdered and one person from each side was injured. It is also an admitted fact on the record that the appellant was acquitted by the learned Additional Sessions Judge by holding as under:- "So by giving the benefit of doubt, I acquit Abbas Khan accused from the charges".
' It is an admitted fact that in the instant case the appellant was charged for hatching conspiracy and in pursuance of the same, instant occurrence has taken place. During the course of investigation, the appellant was found guilty and thereafter he was placed in column No,3 of the challan. During the trial, the appellant was acquitted by extending benefit of doubt. It is a settled principle of law that if the accused is acquitted of the charges while extending benefit of doubt, he cannot claim damages. Position in the case in hand is also the same. The rationale behind the same is that it is cardinal principle of administration of criminal justice which is basic norm of Criminal Jurisprudence that:- You can acquit one hundred guilty, but cannot convict one innocent person.
' The same principle was also given much credence in Islamic Jurisprudence as well. As far as Islamic Jurisprudence is concerned, the word of benefit of doubt has been entrusted with more force as compared to one as stated above. In the verse of Holy Quran: {{ ARAB TEXT }} ' Despite of the fact that the word 'Mal' has been used which is more comprehensive in its composition, but still the word "Ihsan" has been added which clearly depicts that in Islam the element of mercy has attained very high value and the same on its analogical interpretation be termed as what has been stated above and which is cardinal principle of English and Latin jurisprudence.
' In the case of Government of the Punjab through Secretary, Health Department, Lahore v. Slamat All Khan (PLD 1991 SC 699), the august Supreme Court of Pakistan has held as under:-- "Damages---Held, one of the procedural consequences amongst others i.e., extension of benefit of doubt was that neither of the two alternatives would be deemed to have been established and further that either of those conflicting positions could be deemed to have existed---Hospital thus was given only the benefit of jurisprudential effect of benefit of doubt---".
' The august Supreme Court in a reported case Sher Hassan v. The State (PLD 1959 SC (Pak) 480) has held as under:-- "Benefit of Doubt---Whether one of two possibilities represents the truth---One possibility going in favour of one accused--- High Court acquitting such accused---Other possibility going in favour of ,other accused---Supreme Court gave due legal effect to other possibility in relation to other accused and altered sentence of death to one of transportation for life".
' Following dictum of law has been laid down by the august Supreme Court of Pakistan in the case of Sadaruz Zaman v. State (1990 SCMR 1277):-- "Benefit of doubt---Acquittal on extension of benefit of doubt does not mean that accused were falsely implicated and possibility would not be excluded that accused might also have been involved in the matter---Eye-witnesses in such like cases accordingly do not suffer any serious discredit".
' In the case of Feroze Khan v. Fateh Khan and 2 others (1991 SCMR 2220), the august Supreme Court of Pakistan has held the following question of law:- "Appeal against acquittal--- Benefit of doubt--- Acquittal of accused on the extension of benefit of doubt does not necessarily mean that the eyewitnesses had either not seen the occurrence or that they had deliberately and falsely implicated the acquitted accused---In such like cases, however, care is taken that for convicting the remaining accused, the witnesses were put to hardest test of scrutiny and depending upon the circumstances of each case attempt has to be made to see ir their testimony was corroborated by independent circumstances".
' In another case Mahmood Akhtar v. The Muslim Commercial Bank Ltd. And another (PLD 1992 SC 240), the august Supreme Court has held:-- "Acquitted accused whose acquittal was by extension of benefit of doubt, failed in his subsequent case for malicious prosecution against the respondent---Prosecution witnesses in the case who had no malice against the said acquitted accused could not be said to have perjured themselves simply because the acquitted accused has been extended benefit of doubt-Petition for leave to appeal against order of High Court resulting in failure of case of malicious prosecution was dismissed".
' From the aforesaid dictum of law, it can easily be assumed that if a person is acquitted of the charges by extending the benefit of doubt, it does not mean that involvement of the petitioner was an outcome of malice at the part of the complainant; rather the same would be deficient to convict an abundant caution because liberty of a person is an inalienable right which cannot be snatched and if anything comes in favour of the accused, that is to be extended in his favour and matter of right, therefore, mere acquittal of the appellant from the aforesaid case does not bring the case within the ambit of malicious prosecution. Moreover, it cannot be said that the appellant was maliciously prosecuted by the respondents as the occurrence is admitted, in which the appellant was held to be responsible for abetment. As far as case laws referred to above by the learned counsel for the appellant are concerned, suffice it to say that facts of the said cases are distinguishable from the case in hand and it is a settled principle of law that each and every case has its own facts and the same has to be dealt with keeping in view the said facts independently.
Moreover, when confronted, that if the accused is acquitted by extending benefit of doubt, whether the accused entitled to recover damages, learned counsel for the appellant remained unable to satisfy this court. Therefore, we find no illegality or material irregularity in the impugned judgment passed by the learned trial Court, and as such the same calls for no interference by this court.
Resultantly, the instant RFA being devoid of any force is dismissed and judgment impugned dated 22-12-2000 is upheld. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.