1. ' MAQBOOL BAQAR, J.---The instant suit has been filed in forma pauperis, seeking a decree against the defendant for payment of Rs,1,00,00,000 (Rupees One Crore) as damages for maliciously prosecuting the plaintiff by lodging an F.I.R. Bearing No,52 of 2004 with Police Station City Court for offences under section 506-B, P.P.C.
2. ' The brief facts of the plaintiffs case are that the plaintiff, who is a widow, is residing at the address mentioned in 'the plaint, with her family, consisting of four sons and two daughteRs, She is a tenant of one Shamshad Begum in respect of the aforesaid house. It is claimed that the plaintiff is enjoying very good reputation amongst her neighbors and has never indulged in any sort of criminal litigation. The elder son of the plaintiff, namely Rizwan Riaz is serving in Sindh Police, as a Constable and is drawing a monthly salary about Rs,5,900, whereas her other two sons, namely, Irfan and Imran, who are students are bearing their educational expenses by giving tuition to the children in the locality and that the plaintiff is a household lady and has no personal source of income and also does not possess any movable and/or immovable property except for a few household items. It is alleged that the defendant after fabricating title documents of the house, in which, the plaintiff is residing as a tenant, in the name of his nephew, filed Rent proceedings against the plaintiff, in order to usurp the said property. It is further alleged that the defendant and his accomplices committed offence against her, which were punishable under sections 147, 148, 149, 452, 506, 354-A, 34, P.P.C. An F.I.R. To such effect F.I.R. No,77 of 2004 was lodged by the plaintiff at Police Station Chakiwara, Karachi and such case is pending before 1st Additional Sessions Judge, Karachi-South, being Session Case No,541 of 2004, whereas, defendant lodged a false F.I.R. Bearing F.I.R. No,52 of 2004 at Police Station City Court, Karachi under section 506-B, P.P.C. Against the plaintiff on 25-6-2004, however, the investigation officer in the case after recording statement of the plaintiff and the various witnesses, submitted a report in the said crime before the concerned Judicial Magistrate, Karachi South for disposal of the case as "A" Class. It is further alleged that having failed in his attempt to falsely implicate the plaintiff the defendant filed an application under sections 107, 117, 151, Cr.P.C. At Police Station Chakiwara against the plaintiff on false and concocted grounds. However, the concerned Judicial Magistrate, after conducting ' an inquiry under section 117, Cr.P.C., whilst recording the fact that throughout the entire period of one year, for which the parties were bound to maintain peace and tranquility, no report of breach of peace was received from the SHO against the parties, dropped the proceedings under section 119, Cr.P.C. And cancelled the bail bond and discharged the sureties furnished on behalf of the parties. It is submitted that the registration of the F.I.R. And filing an application under sections 107, 117, 151, Cr.P.C.
3. By the defendant was without any just cause and reason and in fact was done with a mala fide intent, as a result of the above two acts of the defendant the plaintiff faced humiliation, defamation and also sustained mental anguish and has suffered physically as well. It is submitted that since the above acts were malicious and without any just cause and reason, the defendant in the circumstances, is liable to pay damages to the plaintiff in the sum of Rs,1,00,00,000 (Rupees One Crore).
4. ' The brief facts of the case pertaining to F.I.R. No,52 of 2004, as contained in the report, submitted by the I.O. Before the concerned Magistrate are that the F.I.R. Was registered upon an application made by the defendant, who is an Advocate by profession. It was stated that on 20-4-2004, the complainant appeared before the VIIth Additional District Judge, Karachi South in F.R.A. No,18 of 2004, however, the learned Judge at the request of one Ghulam Qasim, who claimed himself to be the Munshi of Makhdoom Azam, Advocate, deferred the hearing till 12-00 noon and as the complainant came out of the Court Room Ghulam Qasim along with the plaintiff used intemperate language against the complainant. The complainant, however, ignored their conduct but when at 12-00 noon he again appeared before the Court as directed, Ghulam Qasim along with the lady requested for an adjournment and the hearing was thus adjourned and as soon as the complainant came out to the Court Room along with Advocates Nasir and Ibrahim, Ghulam Qasim and Mst. Shamim started abusing him and threatened that since the applicant has spoiled their case they shall not leave him unharmed. However, the advocates present at the spot saved the complainant. Mst. Shamim ran away, however, advocates Nasir caught hold of Ghulam Qasim and brought him to the Police Station. Ghulam Qasim, failed to produce any identity card to verify as to whether he in fact is a registered Munshi or not. The complainant in his application has submitted that since Mst. Shamim and Ghulam Qasim have extended threats of dire consequences to the applicant, action may be taken against them. It is further stated that the complainant has also obtained a written "Mafinama" from Ghulam Qasim and has stated that he has forgiven Ghulam Qasim. Investigation of the case was entrusted to S.I. Muhammad Aslam, who inter alia, recorded further statement of the applicant and also recorded statements of the witnesses. P.W. Nasir Abbas in his statement disclosed that the names of the accused were disclosed to him by the complainant as he did not know the accused prior to the incident. The I.O. Also obtained the original "Mafinama" from the duty officer. The I.O. Also recorded statement of the duty officer, who stated that some advocates brought Ghulam Qasim to the Police Station and complained that he has quarrelled with, the complainant, Ghulam Qasim was then produced before the SHO, who interrogated him and said that why would Ghulam Qasim, a poor person, would quarrel with the complainant. He, however, asked the complainant to file a written complaint in that regard. Upon such application F.I.R. Was registered. Upon persuasion by the advocates, who accompanied the complainant, the complainant forgave Ghulam Qasim and made such endorsement in his handwriting, he, however, did not forgive Mst. Shamim. He, however, despite request, did not produce any witnesses for recording their statements. It is further stated that the I.O. Examined one of the witnesses of the alleged incident being Ibrahim Moin, Advocate, who stated that on the date of the incident i,e, 2-4-2004 he was present in the Bar Room when Munshi of the complainant Advocate came there and informed him that a man and a woman are misbehaving in the Court of Mr. Ibrahim Memon, whereupon Ibrahim Moin, Advocate along with Advocate Nasir went to the Court, where he found a woman, who was with a man, who claimed to be a Court clerk, was holding the complainant from his collar, she was also abusing the complainant. Naseer Shah, another witness stated that he also was present in the Court Room along with the complainant as a counsel for the appellant in the aforementioned FRA when a lady held the complainant's tie, and both were exchanging hot words and two other persons, one of them having a beard, also came there, the two also gave threats of dire consequences to the complainant. He further stated that the said two persons and the lady ran away and that the complainant informed him that the names of the persons, who have run away are Riaz and Fayyaz and further that Riaz is the husband of the lady and Fayyaz is her son. In her statement recorded by the I.O. Mst. Shamim denied the allegation, she stated that the actual dispute is in respect of the house in her possession and where she is residing since long and further that the house was got vacated on 27-7-2007 through a case filed by one Mst. Shamshad Begum. However, subsequently her possession was restored by the Court and the appeal filed against such restoration has also been rejected and further that the complainant advocate produced the sale agreement in the Court but such plea was rejected by the Court and further that the case has been decided in her favour by all the Courts. She further stated that she has already lodged an F.I.R. Bearing No,77 of 2004 against the complainant, his nephew Muhammad Younus and one Ali Zaman, the husband of Shamshad Begum and that challan has been submitted in the said case.
5. ' The I.O. In his report submitted that upon investigation it appears that there is no son of Mst.
6. Shamim by the name of Fayyaz, as the two birth certificates obtained by him from Mst. Shamim and the two respectable from the neighborhood of Mst. Shamim, namely, Malla Noor Zaman and Khawaja Gular Nadeem have, in their statements, confirmed that Mst. Shamim has no son by the name of Fayyaz. The I.O. Submitted that there are vital contradictions in the statements of the witnesses and therefore, it will not be justified to submit challan against the accused in the above case. The I.O. Submitted that the case may be disposed of as "A" class.
7. ' The report, according to the plaintiff, was, by order dated 13-7-2005, accepted by the concerned Magistrate and the case was disposed of accordingly.
8. ' Since despite service neither the defendant filed his written statement nor any application and also failed to appear before this Court. A learned single Judge of this Court, by order dated 6-4- 2004 ordered ex parte proceedings in the case.
9. ' The plaintiff on 21-10-2004, filed an affidavit in ex parte proof, in support of her case.
10. ' In a suit for malicious prosecution, the plaintiff must prove that:--
(i) The plaintiff was prosecuted by the defendant;
(ii) The prosecution terminated in favour of the plaintiff;
(iii) The prosecution was initiated against the plaintiff without reasonable and probable cause;
(iv) That the defendant must have acted maliciously.
11. ' According to the plaintiff upon his failure in the prosecution of the plaintiff in respect of the above F.I.R., the defendant filed an application under sections 107, 117, 151, Cr.P.C. And upon submission of report, an order under section 112 Cr.P.C. Was passed by the concerned Magistrate. It appears that the bail bond was obtained on behalf of the plaintiff, however, by order dated 19-7-2005 the concerned Magistrate, in view of the fact that during the whole period of one year, for which, the parties were bound to maintain peace and tranquility, no report of breach of peace by any of the parties was submitted by the SHO, dropped the proceedings under section 119, Cr.P.C. And the ,bail bond was cancelled, discharging the surety.
12. ' The case of the plaintiff was admittedly not challaned. She has also not alleged that she was ever arrested in respect of the above two complaints. As noted above, for maintaining a suit for malicious prosecution, it is absolutely necessary that the plaintiff should have been prosecuted by the defendant. Even in a case where police prepare a, charge sheet against the plaintiff but do not send him up for trial, he cannot be said to have been prosecuted, so also where the police arrests a person on a complaint of somebody, but itself lets him off on bail, and subsequently he is discharged on the submission of the final report, there is no prosecution as to find an action for malicious prosecution. Merely setting the law in motion by making an appeal to some person clothed with judicial authority in regard to any matter or merely giving information to the police which induces the latter to launch an investigation would not constitute prosecution.
13. ' However, as noted earlier, neither the plaintiff has claimed that she was ever arrested in respect of the two above complaints nor that any warrants were issued against her. It cannot therefore be said that the plaintiff was prosecuted in the above two complaints. Furthermore, in the facts and circumstances of the case, it cannot be said conclusively that the two complaints were lodged by the defendant without reasonable and probable cause. It is now well settled that in an action for damages on account of malicious prosecution, a judgment of the Criminal Court is not admissible in evidence except for the purpose of finding out whether or not the decision in the criminal case was in favour of the plaintiff. It is not that the judgment of the Criminal Court has to be ignored altogether. It is not to be relied upon as conclusive for deciding the civil suit for malicious prosecution. The Civil Court has to go into the matter on the basis of evidence adduced before it in the civil suit independently, of the view expressed by the Criminal Court. The observations of the Criminal Court or the reasons on which the acquittal is based is not to be accepted as conclusive.
14. Whereas in the present case, neither can it be concluded on the basis of the final report submitted by the I.O. And/or the order passed by the Magistrate in F.I.R. No,52 of 2004 nor from the order dated 19-7-2005 passed in Case No,28 of 2004, that the complaints were lodged by the defendant without any reasonable and probable cause nor has plaintiff narrated any facts and/or produced any material to establish that the same were without any probable or reasonable cause. In the circumstances, the plaintiff has failed to make out a case for damages against the defendant. The suit is, therefore, dismissed.