' ABDUL LATIF KHAN, J.---Through this single judgment, I intend to dispose of R.F.A. No,28/2009 and R.F.A. No,5/2010 as both the appeals are the outcome of one and the same judgment and decree dated 25-11-2009 passed by the learned Civil Judge-VI, D.I.Khan whereby the suit of the respondent namely, Ahmad Saeed was decreed.
2. Facts giving rise to the instant appeals are that the respondent filed a suit against the appellant for recovery of an amount of Rs,20,00,000 as damages for malicious prosecution, mental torture and the cost of litigation.
3. The suit was contested by the appellant by filing written statement. The learned trial court framed nine issues including the relief from the divergent pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned trial court decreed the suit of the respondent to the tune of Rs,4,00,000 vide judgment and decree dated 25-11-2009, hence the appeals.
4. The thrust of the arguments of learned counsel for the appellant is that the amount of Rs,4,00,000, decreed in favour of the respondent as damages is without any substance as no evidence to this effect had been produced by the respondent. He added that the ingredients of malicious prosecution were not fulfilled by producing cogent evidence and the acquittal of the accused was purely on the ground of benefit of doubt. He contended that the impugned judgment has been passed without the aid of any evidence available on file.
5. As against that, the learned counsel appearing on behalf of the respondent argued that the judgment and decree, impugned herein, is well reasoned. The respondent had been humiliated with a false charge under sections 302/34, P.P,C. Read with section 13 Arms Ordinance, and case FIR No,575 dated 4-12-1999, under sections 506/447/427, P.P.C. And prayed that the quantum of damages ought to have been much more than granted by the trial court and to this effect a separate appeal has been filed by the respondent for the enhancement of damages amount. He contended that the respondent had produced the officials of Z.T.B.L. And H.B.F.C. Which shows that it was false implication of the respondent, accused in a criminal case, his financial position was so deteriorated that he became bankrupt and opted to obtain loan from the bank. He contended that the oral evidence produced by him was suffice to grant decree in favour of the petitioner to the tune of an amount as prayed for in the plaint.
6. I have considered the valuable arguments of learned counsel for the parties and perused the record with their able assistance.
7. The registration of F.I.R. And the acquittal of accused under the relevant sections of law, on the basis of benefit of doubt by the learned trial court in criminal case is not disputed between the parties. The question for determination is as to whether the accused/respondent was charged with malice by the complainant/petitioner? The evidence available on file produced by the respondent is not confidence inspiring to this effect. It was the bounden duty of the respondent as required under Article 177 of Qanun-e-Shahadat Order, 1984, that he had to prove his case and was to stand on his own legs in order to get a decree from the court of law. The respondent has prayed for recovery of Rs,20,00,000 as malicious prosecution, the break-up of which is as under:--
(1) Rs,10,00,000 as damages for malicious prosecution.
(2) Rs,9,50,000 for his mental torture.
(3) Rs,50,000 as cost of litigation.
' The perusal of the record shows that one Abdul Waheed, Officer, ADBP, has been produced as PW- 1 who has simply produced the record about the loan sanctioned in favour of the respondent on 27-1-2003 whereas the alleged occurrence took place in the year 2000 and the instant suit was filed by the respondent in the year 2007, so, there seems to be no relevancy in the evidence with regard to the damages as claimed. The respondent himself appeared as PW-2, reiterated the stance taken, in his plaint and opted to produce PW-3, one Ikramullah, Assistant Manager, HBFC, D.I.Khan, who simply produced record with regard to the sanction of loan for construction of house in favour of the loanee, which was sanctioned in the year 1997, being defaulter of the outstanding amount, was served with a notice on 14-3-2006 and this evidence being also not corresponding to the period is of no avail to the respondent. PW-4, one Rafique has been produced, who has simply narrated oral version and same is the case with PW-5, one Fida-ur-Rehman who has tried to show the financial position of the respondent by saying that he demanded loan for purchase of motorcycle for him. This evidence does not inspire confidence to the effect that the prosecution was based on malice, motivated by ill will or ulterior motives. The factors/ingredients to be considered for a decree in malicious prosecution cases are:--
(1) The plaintiff was prosecuted by the defendant,
(2) The prosecution ended in plaintiffs favour,
(3) The defendant acted with reasonable and probable cause,
(4) The offence was actuated by malice,
(5) The proceedings had interfered with plaintiff's liberty and it also effected his/her reputation, and
(6) The plaintiff had suffered damages.
' None of the witnesses has uttered a single word about these aspects of the case which has got a prime role in such cases. So far as the loss in business is concerned, a single word is not available in the evidence that what was the business of the respondent and how he sustained loss and during which period. This aspect too stands disproved. No detail of existence or fee paid to the counsel or any other detail with regard to Rs,50,000 as litigation expenses has been brought on file.
The status of the plaintiff is also not established on the record in order to ascertain the damages as to what status he is enjoying in the society and how he has been humiliated. It is not out of place to mention here that in case under section 302, P.P.C. Read with section 13 Arms Ordinance, the respondent has not remained even a single day in police station or judicial lock-up for the reason that after preliminary inquiry, he was exonerated of the charges under section 169, Cr.P.C. By the local police and same was the case in other FIR No,575 registered under sections 506/447/427, P.P.C. The respondent did not produce any evidence to show that how the suffered loss in the so- called business. For special damages, the duty of the aggrieved party is to prove each item of loss, on the strength of the evidence and for general damages, regarding the mental torture, defamation etc, these are to be measured following the "rule of thumb" according to which it is the discretion of the court to calculate compensation in view of the attending circumstances. In this case, the damages claimed or loss caused to the respondent, the mental torture and the expenses of litigation lack proof, dis entitle the respondent for relief prayed for in the plaint. The uniform rule for malicious prosecution, the damages cannot be stretched in favour of particular person/plaintiff ignoring the establishes principles of law. The impugned judgment does not speak about justification as to how the trial court came to the conclusion that the respondent was entitled to the damages and that too without any break-up under the relevant heads as prayed for by him.
8. For the reasons mentioned above, R.F.A. No,5/2010 is dismissed while R.F.A. No,28/2009 filed by appellant/defendant is accepted, the impugned judgment and decree dated 25-11-2009 is set aside and suit of the respondent/plaintiff is hereby dismissed with no order as to costs.