' MAZHAR ALAM KHAN MIANKHEL, J.---Through this revision petition under section 115 C.P.C., the petitioner has challenged the judgment and decree dated 30-4-2011 of learned Additional District Judge, Kohat vide which, he while dismissing appeal of the petitioner, upheld the judgment and decree dated 23-7-2010 of the trial Court.
2. Precise facts of the case are that the respondent/plaintiffs brought a suit in the Court of Civil Judge-IV, Kohat against the petitioner/defendants for recovery of Rs,5,00,000 as damages on the ground of malicious prosecution. The petitioner/defendants were put on notice who appeared before the trial Court and contested the suit by filing their written statement. Evidence pro and contra was recorded and after hearing the learned counsel for the parties, the suit was partially decreed to the tune of Rs,1,00,000 against the petitioner/defendants on 23-7-2010. Feeling aggrieved, the petitioner/defendant filed an appeal there against before Additional District Judge- III, Kohat which was dismissed on 30-4-2011. Hence, this revision petition.
3. Learned counsel for the petitioner contended that the judgment and decrees of both the Courts below are against law, facts and material available on the record; that the learned Courts below have not considered the evidence in its correct perspective; that the findings given by both the Courts below are the result of misreading and non-reading of evidence; that the defendants had a reasonable and probable cause to initiate criminal proceedings against the plaintiffs and failure to prove such case beyond reasonable doubt would not be termed as malicious prosecution; that the malicious prosecution against the defendants has not been established by the plaintiffs in accordance with law; that there is material contradictions in the evidence of the respondent/plaintiffs and as such, the impugned judgment and decrees are liable to be set at naught. Therefore, the learned counsel for the petitioner requested for acceptance of the revision petition and for setting aside the impugned judgment. In Support of his contentions, the learned counsel placed reliance on the cases of Rafique Ahmed Khan v. Province of Punjab (2004 SCMR 1065), Subedar (Retd.) Fazale Rahim v. Rab Nawaz (1999 SCMR 700); United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others (1999 SCMR 734); Mst. Afroz Qureshi and another v.
Muhammad Ikram Siddiqui (1995 CLC 735); Juma Gul v. Yaqeen Khan (PLD 2008 Peshawar 21); Sher Muhammad v. Moula Bux (1995 CLC 1134) and Allah Din v. Muhammad Hussain and 2 others (PLD 2012 Lahore 279).
4. As against that, the learned counsel for the respondents argued that the petitioner/defendants had initiated frivolous, vexatious and malicious prosecution against the respondent/plaintiffs which has caused harassm ent, mental agony and defamation to them. The learned counsel fully endorsed the findings of the Courts below and argued that the learned trial Court has correctly assessed and awarded Rs,1,00,000 as damages by way of compensation which finding was rightly maintained by the learned lower appellate Courts and prayed for dismissal of the revision petition.
5. Arguments of the learned counsel for the parties were heard and record of the case perused.
6. After hearing the learned counsel for the parties and perusal of the record, this Court is of the view that mere acquittal of the respondent/plaintiffs in the criminal case would not confer any right to sue the defendant/petitioners for damages on the basis of malicious prosecution. The law on the subject is settled by now The prosecution of a criminal offence would only provide a cause for damages for malicious prosecution to the acquitted accused, if the same is based on malice of the complainant and that too, when it is without any reasonable and probable cause. Webster defines malice as "the state of mind manifested by an intent to commit an unlawful act or cause harm without legal justification or excuse. Whereas probable and reasonable cause has been defined in Black's Law Dictionary in its. Eight Edition as "a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.
A look at the above definitions would make it abundantly clear that the plaintiff in a suit for damages for malicious prosecution should not only prove that: (i) that he was prosecuted by the defendant, (ii) that the prosecution ended in his favour, (iii) that the proceedings had interfered with his liberty and has also affected his reputation but should also establish and prove with authentic evidence that: (i) he was prosecuted with a malice, and (ii) that the prosecution was also without reasonable and probable cause. Unless the above ingredients are established, one cannot be held entitled for the damages for malicious prosecution. The case-law relied upon by the learned counsel for petitioners can well be refereed to in support of above discussion.
7. If the case of plaintiff/respondents is seen in the light of above discussion, then there is no hesitation in the mind of this Court that the plaintiff/respondents failed to prove and establish their case in the light of above said legal position. Perusal of plaint would reveal that the above ingredients were alleged generally. Their evidence is also deficient in this regard. Even their witness Kamin Khan Numberdar (P.W.3) has admitted that the occurrence had taken place. The tenor of cross-IC examination of the defendant/petitioners witnesses by the plaintiff/ respondents would also establish the fact that there was a criminal offence wherein plaintiff/respondents were charged but were acquitted thereafter, would not ipso facto make them entitled for damages for malicious prosecution.
8. The Courts below while granting the decree to the plaintiff/ respondents though were fully aware of the legal aspect of the case tut have failed to appreciate the evidence available on the record.
The findings of the Courts below being against the record cannot be left to remain in the field.
9. As a sequel to above discussion, this civil revision is allowed and in consequence thereof, the judgment and decrees of the Courts below are set aside and the suit of the plaintiff/respondents