' MUHAMMAD SHAFI SIDDIQUI, J.---This revision application is arising out of the proceedings initiated by the respondent before the trial Court by filing suit for damages for malicious prosecution which has been claimed on account of filing criminal miscellaneous application by the applicant pursuant to the Illegal Dispossession Act, 2005. Per learned counsel for the applicant the proceedings under the said criminal miscellaneous application were withdrawn as the respondent vacated the portion occupied by them illegally and unlawfully and hence the application was withdrawn. Subsequent fo the withdrawal of said criminal miscellaneous application, the respondent filed the subject suit for malicious prosecution on the cause that claimed to have been accrued to the respondent initially when the said criminal miscellaneous application was filed and subsequently on 9-10-2007 when the criminal prosecution allegedly terminated in respondent's favour. Per learned counsel for applicant the proceedings under the said criminal miscellaneous application were in fact withdrawn on 9-10-2007 on account of vacation of the subject premises/portion by the respondents.
2. The applicant contested the said suit and filed written statement and issues were framed by the trial Court. Pursuant to the issues framed the parties led evidence. Respondent examined herself and was also cross-examined by the applicant counsel. Similarly the applicant also examined himself and was also subjected to cross-examination. No other witness was examined either by applicant or respondent. The learned Trial Court while disposing of the said suit has framed and gave findings on the three issues ice, "(1) Whether the plaintiff suffered monetary loss, physical discomfort, indignity, dis-reputation in society by the defendant during trial of the Criminal Miscellaneous Application No,17 of 2006 under sections 3 and 4 of Illegal Dispossession Act, 2005 before the Court of honorable Ist Additional Session Judge, Mirpurkhas?
(2) Whether the plaintiff is entitled for the relief claimed?
(3) What should the decree be?"
3. The trial Court in this suit for malicious prosecution held that the respondent had suffered monetary losses and physical discomfort etc. At the hands of the applicant during the trial of criminal miscellaneous application filed under sections 3 and 4 of the Illegal Dispossession Act 2005. Aggrieved with judgment and decree of the trial Court, the applicant preferred the appeal before the District Judge Mirpurkhas which also met the same fate and the appeal was dismissed by judgment dated 22-4-2010. Aggrieved with the said judgment the applicant preferred this civil revision application
4. Precisely, the applicant in this revision has raised legal points i,e,, the courts below did not appreciate that the onus to prove "malicious prosecution" is upon the respondent and that it is required to be proved affirmatively. Learned counsel further submits that the proof of existence of "malice" itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause. Learned counsel also submits that the damages could be awarded only on strict proof thereof. In support of his contention learned counsel for plaintiff has relied upon the case of Abdul Rauf v. Abdul Razaq and another reported in (PLD 1994 SC 476). He submitted that there was a reasonable and probable cause in filing criminal miscellaneous application against the respondent and hence the trial Court as well as Appellate Court ought to have framed the issue regarding the existence and non-existence of reasonable and probable cause in filing criminal miscellaneous application by the applicant. In the absence of the framing of such issue and in the absence of evidence and findings thereon, the fate of the suit should result in its dismissal rather than otherwise.
5. He further submitted that even the Appellate Court failed to determine the points for determination and the above referred points are few of those which have been raised in the appeal. Thus he submitted that the two courts below have not only misread the evidence but the judgment and decrees are based on no evidence and inadmissible evidence which attracts the jurisdiction of this court and which rendered the judgments of the trial Court and that of the Appellate Court as judgments and decrees with illegality and with material irregularity and hence while rendering such judgments they exceeded from their jurisdiction. In support of this contention learned counsel has relied upon the case of Sheikh Muhammad v. Mst. Hashmat Sultana reported in 1989 SCMR 34 and the case of Muhammad Bakhsh v. Province of Punjab through District Collector, Multan (now Lodhran) and 2 others reported in 1994 SCMR 1836.
6. In reply to the above arguments the learned counsel for respondent submitted that since there are concurrent findings of two courts below therefore, this court has no power to interfere with the judgments and decrees of two courts below in exercise of the powers under section 115, C.P.C.
Learned counsel submits that the erroneous conclusion of law or fact is liable to be corrected in appeal but revision will not be competent on such ground, unless arriving at such conclusion, an error of law is manifestly shown to have been committed. He submitted that the two courts below gave strong reasons in support of their judgments and decrees and hence such findings could not be legally interfered with under section 115, C.P.C. In support of his contention the learned counsel has relied upon the case of Anwar Zaman and 5 others v. Bahadur Sher and others reported in 2000 SCMR 431 and the case of Muhammad Ashraf v. Municipal Corporation Gujranwala through Mayor/Administrator reported in 2000 MLD 514. Learned counsel for the respondent further submits that the basic element on the basis of which suit for malicious prosecution could be decided are:--
(a) prosecution of the plaintiff/respondent by the defendant/applicant.
(b) there must be a want of reasonable and probable cause for that prosecution.
(c) the defendant must have acted maliciously i,e, with improbable motive.
(d) the prosecution must have ended in favour of the person proceeded against.
(e) it must have caused damage to the party proceeded against.
(f) Learned counsel submits that keeping in view of the above elements the judgments and decrees were passed. In support of above he relied upon the case of Niaz and others v. Abdul Sattar and others reported in PLD 2006 SC 342.
7. I have heard the learned counsel for the parties and perused the record. It appears that the parties have undergone trial pursuant to a suit for malicious prosecution and at trial it appears the suit was decreed on the basis of finding of only three issues referred above. The ingredient on the basis of which the structure of malicious prosecution rests was never in consideration at the trial Court. I feel it so because the basic points on the basis of which a suit for malicious prosecution proceeds are required to be framed as issues so that the parties may record evidence in pursuance thereof. In suit for malicious prosecution the plaintiff is under the obligation to show that:--
(i) he was prosecuted by the defendant on the criminal charge (ii). The prosecution terminated in favour of plaintiff
(iii) the prosecution was malicious
(iv) the prosecution was without reasonable and probable cause
(v) the proceedings had interfered with plaintiffs liberty and had also affected his reputation and finally the plaintiff had suffered damages.
8. Perusal of the judgments of two courts below reveals that none of the issue framed by the Trial Court touches the basic ingredients and elements referred above nor the Appellate Court while deciding points for determination under Order XLI, Rule 31 provides any findings in this regard. Of course, the Appellate court could not have done as there is no evidence with regard to "actual malice" on the part of the applicant and "probable cause", since there were no issues and evidence recorded.
9. I have also gone through the judgments of the trial Courts as well as of the Appellate Court. While deciding issue No,1 the Trial Court has observed as under:-- "The plaintiff is a parda observing lady and she attended the trial court through public transport then it must had adversely affected her reputation and good will in the society. The prosecution with malice of the plaintiff must have further destroyed her image created in her neighborhood where she was residing. Further she must have suffered monetary loss and physical discomfort."
The above paragraph of the trial Court's judgment reveals that the findings were based on probabilities, surmises and conjectures and not based on the evidence that was available on record. It also appears that the respondent in fact has not proved the damages sustained by the alleged prosecution if at all it is considered to be a malicious prosecution.
10. Claim on the basis of malicious prosecution is a heavy burden which cannot be discharged so conveniently. The burden on the plaintiff to claim damages for malicious prosecution is more than it is in normal suit. The honourable Supreme Court in case of Abdul Rauf v. Abdul Razaq reported in PLD 1994 SC 476 settled the principles to claim damages in suits for malicious prosecution which are as under:-- "It is well settled that in a suit for malicious prosecution the plaintiff is under the onus to show that
(i) he was prosecuted by the defendant on a criminal charge, the prosecution terminated in favour of the plaintiff, the prosecution was malicious, (iv) the prosecution was without reasonable and probable cause, (v) the proceedings had interfered with the plaintiffs liberty and had also affected his reputation, and finally, (vi) the plaintiff had suffered damages".
11. The aforesaid judgment of the honourable Supreme Court has relied upon the case of MUHAMMAD AKRAM v MST. FARMAN BI reported in PLD 1990 SC 28. In the said judgment also a similar view was taken by the honourable Supreme Cotirt and test of six elements were prescribed for succeeding in a suit for malicious prosecution, which are:--
(i) that the plaintiff was prosecuted by the defendant on a criminal charge,
(ii) the prosecution ended in favour of the plaintiff
(iii) the prosecution was malicious,
(iv) That the defendant acted without reasonable and probable cause,
(v) That the proceedings had interfered with the plaintiffs liberty and has also affected her reputation, and finally,
(vi) The plaintiff had suffered damages.
12. It is significant to note that though prima fade, the burden seems to be on the plaintiff for the above six elements, however, as stated earlier that none of the issues framed by trial court remotely touched the aforesaid six points for determination. Needless to mention that since the core issues have not been framed, therefore, the question of recording evidence on the aforesaid points does not arise. The scanning of the evidence recorded in the trial Court also reveals that the basic questions, which are essential in a suit for malicious prosecution to stand on are missing, such as, the filing of the criminal application was without reasonable and probable cause and that if at all there was no reasonable and probable cause the filing of such application was actdated by the malice and lastly that it had interfered with plaintiffs liberty and had affected his reputation and also the plaintiff/respondent had suffered damages. Though in the two judgments below an attempt was made to cover some of these points but the answer to all these question are not borne out of evidence. In my view another point, which needs consideration, is that whether the prosecution was ended in plaintiff/respondent's favour, as it was never disposed of on merits. In fact it was withdrawn by the applicant.
13. In matters relating to damages although the view taken in PLD 1957 Lahore 283 that "If we are to assess the damages only if the exact amount is proved, no damages can ever be decreed.
Damages have many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of a suit", is in respect of general damages but the question of special damages could be awarded only of strict proof thereof. Such views were taken by the Supreme Court in the case of Abdul Rauf v. Abdul Razaq PLD 1994 SC 476, the honourable Supreme Court of Pakistan while distinguishing the two categories of damages i,e, special and general observed as under:-- "However, the learned Judge failed to distinguish between special damages and general damages. Special damages could be awarded only on strict proof thereof. No particulars of special damages were stated much less any proof thereof was furnished. Even otherwise since no case for malicious prosecution was made out, therefore, it is not necessary to go into this question any further.", 14.In this case also the respondent/plaintiff claimed special damages, however, the critical scanning of the evidence shows that neither the special damages nor the general damages as claimed were proved under the circumstances of the case. Apart from this the important questions which arise out of the pleadings is whether the malice of the applicant was ever proved in trial Court and the absence of reasonable and probable cause were at all established by the plaintiff/respondent as only then the question of ascertaining damages be it general or special could come in the radar of suit for malicious prosecution. For convenience I may reproduce the meaning of following:-- Actual malice,
1. The deliberate intent to commit an injury, as evidenced by external circumstances.---Also termed express malice: malice in fact, Cf implied malice.
2. Defamation. Knowledge (by the person who utters or publishes a defamatory statement) that a statement is false, or reckless disregard about whether the, statement is true. To recovery for defamation, a plaintiff who is a public official or public figure must overcome the defendant's qualified privilege by proving the defendant's actual malice. And for certain other types of claims, a plaintiff must prove actual malice to recover presumed or punitive damages.
Implied malice: Malice inferred from a person's conduct---Also termed constructive malice, legal malice; malice in law. Cf actual malice.
Malicious:
1. Substantially certain to cause injury.
2. Without just cause or excuse.
15. Thus when all such ingredients are missing in evidence, the answers to these questions would show presumption, surmises and conjectures, when an attempt to answer these question was made in judgment, like the one quoted above.
16. Even the ratio of the judgment relied upon by th respondent i,e, PLD 2006 SC 432 carries the view which may not found favour for respondents. It would be proper to quote the relevant portion of para 7 at page 439:- "It is also a well-settled principle of law that a prosecution may not be entirely mala fide but the continuance of such prosecution after it was discovered that the facts upon which it was based are not true may give rise to claim for damages for malicious prosecution. This doctrine is based on the dictum of Cockburn, CI in Fetzjohn v. Mackinder (30 LJCP 257). It is also settled law that in suits for malicious prosecution proof of the existence of malice itself is not enough but should be accompanied by proof of absence of reasonable and probable cause."
17. The filing of an application under sections 3 and 4 of the Illegal Dispossession Act. 2005 suggests that cognizance of the offence was to be taken by the concerned Court after receipt of report from the enquiry officer of the concerned area. For the understanding I may reproduce sections 3, 4 and 5 of the Illegal Dispossession Act, 2005, as under:- '3. Prevention of illegal possession of property,<> etc.---(1) No one shall, enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property.
(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.
4. Cognizance of offence---(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on complaint.
(2) The offence under this Act shall be non-cognizable.
(3) The Court at any stage of the proceedings may direct the police to arrest the accused.
5. Investigation and procedure.---(1) Upon a complaint the Court may direct the officer-in- charge or a police station to investigate and complete the investigation and forward the same within fifteen days to the Court: Provided that the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection.
(2) On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded.
(3) The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days".
18. Hence whether or not cognizance was taken is also not determined, from the record available before me. The aforesaid questions went begging for answers as in my view a satisfactory answer to all the questions raised above are not borne out of evidence.
19. One landmark judgment that I have come across on the material questions of 'malicious prosecution', 'reasonable and probable cause of malice' is the case of Abdul Rasheed v. State Bank of Pakistan reported in PLD 1970 Karachi 344, I may quote relevant and important paragraphs of the Judgment which are relevant for this case as under:- The question of the existence or otherwise of reasonable and probable cause, in my opinion, should be determined independently of the fact that though the plaintiff was acquitted in appeal, his trial had originally resulted in conviction by the Court of first instance. In the instant case, therefore, the judgment has to rest on the determination of two points, that is, (i) whether the prosecution of the plaintiff was malicious, and (ii) whether this prosecution was without reasonable or probable cause.
7. The terms 'malice', in a prosecution of the nature which is before me, has been held not to be spite or hatred against an individual but of 'malus animus' and as denoting the working of improper and indirect motives. The proper motive for a prosecution is the desire to secure the ends of justice. It should, therefore, be shown that the prosecutor was not actuated by this desire but by his personal feelings---See Mitchell v. Jenkins ((1833) 5 B & Ad. 588) Pike v.
Waldrum ((1952) 1 Lloyd's Rep.431) and Stevens v. Midland Counties Ry. ((1854) 10 Ex. 352)
Further, malice should be proved by the plaintiff affirmatively:- Abrath v. N.E. Ry ((1866) 11 AC 247). Malice may sometime be inferred from absence of reasonable and probable cause, but this rule has no general application and there may be cases where it would be appropriate not to infer malice from unreasonableness. Further, if reasonable and probable cause is proved, the question of malice becomes irrelevant, and also defect of want of malice---See Turner v.
Ambler ((1847) 10 QB 252); Mitchell v. Jenkins; Brown v. Hawkes ((1891) 2 QB 718) and Herniman v. Smith ((1938) AC 305). It would be proper here to quote the following observation of Denning, L.J. (as he then was) in Tempest v. Snowden ((1952) 1 KB 130): "Even though a prosecutor is actuated by the most express malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution."
The same rule has been applied by the Courts in India and Pakistan. Several decision on this point were brought to my notice by Mr. Fazeel. The first case on this point is the decision of the High Court, Lahore, in Abdul Shakoor v. Lipton & Co. (AIR 1924 Lah. 1) where it was held that in suits for malicious prosecution, proof of the existence of malice itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause. The Lahore High Court reiterated this view in Nur Khan v. Jiwandas (AIR 1927 Lah. 120) and Gobind Ram v. Kaju Ram (AIR 1939 Lah. 504) The same view prevailed with the High Court of Madras in V. T. Srinivasa Thathachariar v. P. Thiruvenkatachariar (AIR 1932 Mad. 60) This view also found approval of the Judicial Committee of the Privy Council in Balbhaddar Singh v. Badri Sah (AIR 1926 PC 46) and in Raja Braja Sunder Deb and others v. Bomdeb Das and others (AIR 1944 PC 1) in which last case it was further observed that malice cannot be inferred from the anger of the prosecutor.
9. Mr. Ali Ahmed Fazeel put forth another contention also that is, that if prosecution is instituted on expert advice, though it fails ultimately, it cannot be said to have been taken without reasonable or probable cause On the contrary, in both these cases it was expressly stated that the facts laid before counsel should have been correct and the prosecutor should have honestly believed in the guilt of the accused. Whether the prosecutor had honestly believe or not that the plaintiff had committed an offence, which should be tried by a Court, can be found out generally not by any test with regard to subjective satisfaction, but from the evidence which is laid before the Court in support of the prosecution.
10 ............... In any case, the failure of the State Bank or of the Special Police to prosecute Wazir Muhammad cannot be treated as evidence of malice on their part against the plaintiff. My finding, therefore, is that the plaintiff has failed to establish malice against the defendants.
11. ................ On the evidence reviewed above, which was? before the defendants, any reasonable and prudent person would honestly believe that there was a fit case for-the prosecution of the plaintiff "
20. Thus in suit for malicious prosecution the aforesaid ingredients are required to be examined.
There is no evidence available that the applicant was actuated by any malice against the respondent No,1 in filing a criminal miscellaneous application under Illegal Dispossession Act, 2005. In the aforesaid judgment of honourable Supreme Court and this Court it was held that it is necessary that the malice should be proved affirmatively. There is also no satisfactory evidence to prove that there was no probable and reasonable cause for moving such criminal miscellaneous application.
21. Hence after detailed deliberation and in consideration of the above referred Judgments of the honorable Supreme Court I am of the view that there was not enough material and evidence on record to reach such conclusion which are required for decreeing the suit for malicious prosecution and no wonder that these ingredients are missing in evidence as no issues pertaining to the aforesaid elements were framed by the trial Court.
22. I, therefore, in view of the above legal consideration set aside the judgments and decrees of the two courts below and remand the case to the trial Court to frame the following issues and allow the parties to record evidence, whereafter the trial Court shall pass judgment and decree afresh in consideration and in response to the evidence that may come on record on the basis of following issues.
(1) Whether the prosecution was malicious and without reasonable and probable cause.
(2) Whether the proceedings had interfered with the plaintiff's liberty and had also affected her reputation. The revision applications stand disposed of in the above terms. KMZ/M-120/K .