MOHAMMAD AZAM KHAN, CJ. --- The captioned appeal with leave of the Courts arises out of a judgment of the High Court dated 3.11.2006 whereby second appeal filed by the appellant, herein, has been dismissed.
2. The appellants filed a suit for recoverY of Rs. 100,000/- in the Court of Civil Judge Pallandari on 23.12.1999 on the ground of malicious prosecution against the defendant-respondent, herein. The Trial Court dismissed the suit for want of proof An appeal filed before the District Judge was dismissed. Second appeal filed by the plaintiff- appellant was also dismissed, hence this appeal with leave.
3. Mr. Asghar Ali Malik, counsel for the appellant, argued that the judgment of the High Court is not maintainable on the ground that plaintiff has specifically alleged the fact of malicious, prosecution which was not denied. There is no specific denial on part of the defendant. It is settled law that evasive denial is no denial in the eye of law. The learned counsel referred to the case reported as Qurban Hussain v. Mst. Bashir Begum & 6 others [PLD 1986 SC (A J&K) 109].
The rule of law laid down in referred case titled Qurban Hussain v. Mst. Bashir Begum & 6 others and reported as PLD 1986 SC (AJ&K) 109 lays down that there must be specific denial on part of the defendant. The denial must be specific or by necessary implication in the written statement. If the allegation is not denied specifically, then it shall be deemed to be admitted by the defendant. The defendant must deal specifically with allegation of fact, to which he doesn't admit true.
The learned counsel further argued that the High Court and the Courts below have committed misreading and non-reading of evidence, therefore, the impugned judgment is not maintainable.
He argued that the plaintiff-appellant in his Court's statement alleged specifically the details of malicious prosecution. The defendant-respondent failed to cross-examine the plaintiff. It is settled law that if a party fails to cross-examine a witness on material point, which goes against the party, then the fact shall be deemed to be admitted. He referred to the case reported as Islamuddin & others v. Ghulam Muhammad & others [PLD 2004 SC 633].
The case reported as Islamuddin & others v. Ghulam Muhammad & others [PLD 2004 SC 633] lays correct law that under Article 133 of the Qanoon-e-Shahadat Order, 1984, if a defendant fails to challenge the statement of plaintiff on material point relating to the controversy between the parties, the presumption shall be that statement of witness to such extent was proved against the defendant. Same principle of law has been enunciated by this Court in a number of cases.
Lastly the learned counsel argued that the plaintiff-appellant, herein, has proved the fact that defendant-respondent, herein, filed a baseless complaint of criminal charges in the Court of Magistrate, which was dismissed and appeal before the Sessions Judge was also dismissed, therefore-, it was enjoined upon the Courts below to award a decree on the basis of malicious prosecution in favour of the plaintiff. He referred to the case reported as Muhammad Akram v. Mst.
Farman [PLD 1990 Supreme Court 28).
The case reported as Muhammad Akram v. Mst. Faman [PLD 1990 Supreme Court 28] contains general principles for awarding damages on the ground of malicious prosecution. We will apply the general principles laid down in this authority while deciding the question.
4. While controverting the arguments of the counsel for the appellant, Syed Nazir Hussain Shah Kazmi, counsel for the respondent, argued that there are concurrent findings of two Courts below, which are affirmed by the High Court. The concurrent findings of facts based on evidence, recorded by the two Courts below and affirmed by the High Court are immune from interference by this Court. He also submitted that there is no misreading or non- reading of evidence. The learned counsel referred to and relied upon the cases reported as Haji Muhammad Latif Khan v.
Muhammad Hanif [2007 SCR 125] and Muhammad Arif v. Muhammad Boota & 4 others [2007 SCR 363].
In the case reported as Haji Muhammad Latif Khan v. Muhammad Hanif [2007 SCR 125] this Court held that concurrent findings on the question of facts shall not be disturbed unless the same are based on some misreading or non-reading of evidence.
Similarly in the case reported as Muhammad Arif v. Muhammad Boota & 4 others [2007 SCR 3631 the same view is reiterated that where there are concurrent findings on the question of fact then this Court shall not embark upon fresh appreciation of evidence in second appeal even if erroneous view has been drawn by both the Courts below.
The leamed counsel further argued that the appellant failed to prove the case that he was maliciously prosecuted, therefore, all the three Courts after analysis of evidence correctly dismissed the suit. The learned counsel referred to and relied upon the case reported as Muhammad Latif Khan & 2 others v. Muhammad Afsar Khan (PLJ 2000 SC (AJ&K) 83].
In the case reported as Muhammad Latif Khan & 2 others v. Muhammad Afsar Khan (PLJ 2000 SC (AJ&K) 83] it was held by this Court that plaintiffs were also required to prove that the defendant prosecuted them without any reasonable or probable cause. The plaintiffs have failed to prove such fact, therefore, the suit for damages was rightly dismissed by the High Court.
5. We have heard the learned counsel for the parties and perused the record. The appellant filed a suit for recovery of Rs. 100,000/- on the ground that the defendant instituted a false and baseless private compliant under Sections 148, 149, 427, 447, 504, 506 and 452 are in the Court of SDM, Magistrate First Class, on the ground that the plaintiff, on 26.8.1993, has damaged his crops and grass while letting his cattle for grazing in his fields and on his protest he attacked him with a pistol and tried to murder his wife and children. The complaint was dismissed by the Trial Magistrate on 12.12.1998. The appeal before District & Sessions Judge Pallandari was also dismissed on 25.6.1999.
The plaintiff claimed that due to false complaint he is entitled for recovery of Rs. 100,000/- because the prosecution was malicious. The record reveals that in the written statement the defendant categorically denied all the allegations and stated that he has correctly filed the complaint. A perusal of the judgment of the Trial Court shows that the Trial Court has considered the contents of plaint, written statement and evidence produced by the parties and after detailed examination of evidence concluded that the plaintiff failed to prove his case. There are concurrent findings of facts on the record. It is well- settled law that concurrent findings of facts based on record cannot be disturbed in second appeal. The High Court also observed that there is no misreading or non- reading of evidence. Although it is not the duty of this Court to analyze the evidence but we, for our own satisfaction, have perused the evidence and reached to the conclusion that no portion of the record was left out of the consideration by the Courts below.
6. The moot point in the case is that whether there is any evidence in support of the allegation that prosecution of appellant was without any reasonable ground and it was malicious or not. From the statement of witnesses we have reached to the conclusion that there is nothing in the statement of witnesses wherefrom it could be ascertained that the prosecution of the plaintiff-appellant was malicious. The only evidence which was produced by the plaintiff was that he was acquitted in the private complaint filed against him. From mere acquittal it cannot be said that prosecution of the plaintiff was malicious one. It is necessary for the plaintiff to prove in a suit for damages that his prosecution was without reasonable .Cause, and malicious. If a person has got reasonable and probable cause, the prosecution cannot be described as malicious because he has got enmity. In the case reported as Muhammad Akram v. Mst. Farman Bi [PLD 1990 Supreme Court 28] the Supreme Court of Pakistan observed that for grant of a decree of damages following have to be proved:- "(i) That the plaintiff was prosecuted by the defendant;
(ii) That the prosecution ended in plaintiffs favour.
(iii) That the defendant acted without reasonable and probable cause.
(iv) That the defendant was actuated by malice.
(v) That the proceedings had interfered with the plaintiffs liberty and had also affected her reputation; and finally
(vi) That the plaintiff had suffered damage."
In the case reported as Naber Shaha v. Shamsuddin & others [PLD 1964 Dacca 11] it was observed as under:--- "......... Plaintiff's respectability and prestige may be the basis for determining the amount of compensation to be awarded to the plaintiff in a suit for malicious prosecution, but that prestige and respect are not very much material for the purpose of finding that the prosecution was malicious and without reasonable and probable cause. Bare malice also is not enough to pass a decree in a suit for damages for malicious prosecution, but there must be absence of reasonable and probable cause. If a person has got reasonable and probable cause, the prosecution cannot be described as malicious simply because he has got enmity...."
Similarly in the case reported as Muhammad Mantazuddin v. Shamsur Rahman [PLD 1964 Dacca 618] it was held as under:-- "18. However, wrong-headed a prosecutor may be, if he honestly thinks that the accused has committed a criminal offence, he cannot be considered as the initiator of malicious prosecution.
For action for malicious prosecution, the prosecution must be initiated with malicious spirits, that is, from an indirect and improper motive and not in furtherance of justice. In initiating a prosecution, the intention must be to injure the party rather than vindicate the law. Malice has been described as any wrong or indirect motive. Even malice alone is not enough. Absence of reasonable probable cause must be shown."
This Court in the case reported as Muhammad Latif Khan & 2 others v. Muhammad Afsar Khan (PLJ 2000 SC (AJ&K) 83] observed as under:- "5. We have given due consideration to the matter. The moot point in the case is that whether there is any evidence in support of the allegation that the prosecution of the appellants was without any reasonable ground. It may be stated that the learned counsel for the appellants could not point out any such evidence; he only stressed that, as the appellants were acquitted by the Tehsil Criminal Court they were entitled to the compensation. It may be stated that as is evident even from the case reported as Jogendra Garabadu and others v. Lingeraj Patra and others (AIR 1970 Orissa 91), relied upon by the learned counsel for the appellants, it is necessary for the plaintiff to prove in a suit for damages that his prosecution was without any reasonable ground. The mere fact that the accused-appellants were acquitted would not justify to award them compensation for malicious prosecution without proving the aforesaid fact. A reference may be made to the cases reported as Khawaja Muhammad Naseem v. Shafiqur Rehman (NLR 1996 Civil 485) and Muhammad Ahram v. Mst. Farman Bi (PLD 1990 SC 28) in support of the view that it is also necessary for the plaintiff to prove that the defendant prosecuted him without a reasonable or probable case."
7. We have considered the argument of the counsel for the appellant that defendant has not denied the fact of malicious prosecution, therefore, it is deemed to be admitted. The law on the point is settled that Rule 5 of Order VIH, CPC, provides that if the allegation in the plaint is not denied by the defendant in clear terms or by necessary implication and if there is evasive denial, such denial cannot be considered and allegation in the plaint is considered to be correct. A perusal of the plaint and written statement shows that the defendant-respondent herein, categorically denied the allegation in the plaint. The argument of the learned counsel for the appellant is without any foundation.
8. Another argument of the counsel for the appellant is that if a part of the statement of plaintiff or the witness goes against a party and the party fails to cross-examine the witness on such point, that part of the statement is deemed to be admitted by such party. Under Article 133 of the Qanoon-e- Shahadat Order, 1984, cross-examination of witness is a right of adverse party and if a particular portion of the statement of a witness is not cross-examined, that is deemed to be admitted true. The rule of law laid down in the case reported as Islamuddin & others v. Ghulam Muhammad & others [PLD 2004 SC 633] is correct.. Similar view has been expressed by this Court in number of cases that if the statement of any witness goes against the defendant and he fails to cross-examine on that point, then the point will be deemed to be admitted but there is nothing stated in the statement of plaintiff which was not cross- examined. A perusal of the statement of the witnesses shows that whatever was stated by the plaintiff or his witness, the defendant cross- examined the witnesses and no material point was left un-cross-examined.
9. On the principle of law laid down in the above-referred cases we have examined the record. The plaintiff proved that he was prosecuted by the defendant and prosecution ended in plaintiff s favour but he failed to prove that defendant acted without reasonable and probable cause and the prosecution was actuated by malice rather defendant has a reasonable cause to prosecute the plaintiff. The plaintiff also failed to prove that he had suffered damages due to prosecution and the proceedings had interfered with his liberty and affected his reputation.
The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to the costs.