Khalid Mahmood Malik, J.--The defendants have brought this appeal under Section 96, CPC to assail the judgment and decree dated 23.6.2005, passed by learned Civil Judge Ist. Class, Kot Addu, whereby he decreed the suit of the respondents/plaintiffs to the extent of Rs, 10,00,000/- as damages against them.
2. Briefly facts necessary for the adjudication of lis in hand are that plaintiffs/respondents filed a suit for recovery of Rs, 71,40,000/-for malicious prosecution stating therein that a false criminal case was registered against them vide FIR No, 11/1992 dated 10.1.1992, recorded under Sections 302/109/148/149 PPC at Police Station, Chowk Sarwar Shaheed by Ghulam Hussain, Defendant No, 1 (since died) with connivance of Ghulam Abbas Appellant/Defendant No, 2, who issued medico legal report and post mortem report by making concealment of facts in order to save actual culprit namely Saeed Ahmad alias Saeeda from punishment; that the challan was submitted in the Court concerned against them; that after conclusion of murder trial, they were acquitted of the charge by the learned Additional Sessions Judge, Kot Addu vide judgment dated 22.4.1999 and that they had to bear huge expenses and thus, they were entitled to recover an amount of Rs, 71,40,000/- from the defendants. The suit was contested by filing written statement in which the appellants/defendants controverted the averments made in the plaint and raised numerous preliminary objections. On pleadings, learned Civil Judge framed the following issues:---
1. Whether the plaintiffs are entitled to recover Rs, 71,40,000/- on account of defamation? OPP
2. Whether the plaintiffs have no cause of action & locus standi? OPD
3. Whether the suit is not maintainable in its present form? OPD
4. Whether defendants are entitled to special costs u/s 35-A, CPC? OPD
5. Relief.
3. Both the parties led their pro and contra evidence, From plaintiffs' side, Plaintiff No, 2 Muhammad Yaseen, appeared as PW-1. In documentary evidence, they produced the documents Exh.P/1 to Exh.P/22 relating to aforementioned criminal case. In rebuttal, Ghulam Hussain defendant appeared as DW-1. After appraising evidence, learned Civil Judge decided issue No, 1 in favor of the plaintiffs whereas findings qua issues No, 2 to 4 were recorded in negative. The suit was decreed in favor of the plaintiffs and it was held that the plaintiffs would be entitled to recover an amount of Rs, 10,00,000/- from the defendants/appellants as damages.
4. Learned counsel for the appellants argued that impugned judgment and decree are against law and facts of the case; the learned trial Court had not appreciated the evidence produced by the parties in its true perspective and ignored the relevant law on the subject; the plaintiffs had failed to prove issue No, 1 through cogent evidence; the basic ingredients of the malicious criminal prosecution were lacking in the case .Of plaintiffs as they were not honourablly acquitted and only benefit of doubt was given to them, thus the impugned judgment and decree are not sustainable under the law.
5. Conversely, the learned counsel for the plaintiffs-respondents have fully supported the impugned judgment and decree and pleaded that plaintiffs were falsely implicated in murder case by defendants; the plaintiffs faced the agony of trial and litigation for a long period; that their reputation was badly affected; that they had suffered business loss and mental torture and that there is no misreading, non-reading of evidence and illegality in the impugned judgment.
6. We have heard learned counsel for the parties and perused the record.
7. Malicious prosecution is the malicious institution of unsuccessful criminal proceedings against another with reasonable or probable cause. This tort balances completing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the Court by wrongfully setting the law in motion of a criminal charge. In an action of malicious prosecution the plaintiff must prove:
(i) That he was prosecuted by the defendant;
(ii) That the prosecution was ended in plaintiff's favor;
(iii) That the defendant acted without reasonable and probable cause;
(iv) That the defendant was actuated by malice;
(v) That the proceedings had inferred with plaintiff's liberty and had also affected his reputation; and,
(vi) That the plaintiff had suffered damage.
8. In the case in hand, it is true that the criminal prosecution against the plaintiffs was initiated by the Defendant No, 1, Ghulam Hussain and that the said prosecution was ended in favor of the plaintiffs vide judgment dated 22.4.1999 (Ex.P-18) passed by learned Additional Sessions Judge, Kot Addu who after conclusion of trial, evaluating the evidence had acquitted the accused (the plaintiffs) by giving them benefit of doubt. Despite the existence of afore-stated facts, plaintiffs as per principle laid down in the case of Nur Khan v. Jiwandas (AIR 1927 Lah.120), Gobind Ram v. Kaju Ram (AIR 1939 Lah. 504), Abdul Rauf vs Abdul Razzaq and another (PLD 1994 SC 471) and Subedar
(Retd) Fazle Rahim v. Rab Nawaz (1999 SCM R 700) were required to prove absence of reasonable and probable cause. The phrase "reasonable and probable cause" means an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilt of the crime imputed. As laid down in Hicks v. Faulkner (1878)8 QBD 167 there must be:
(i) an honest belief of the accuser in the guilt of the accused;
(ii) such belief must be based on an honest conviction of the existence of circumstances which led the accuser;
(iii) such secondly mentioned belief as to the existence of the circumstances must be based upon reasonable grounds that is such grounds, as would lead any fairly cautious man in the defendant's situation to belief so;
(iv) the circumstances so believed and relied on by the accused must be such as amount to a reasonable ground for belief in the guilt of the accused.
9. The fact that the plaintiffs were acquitted was not prima-facie evidence that the charge was un- reasonable and false. The plaintiffs in their plaint had not pleaded that the report, that is, FIR No, 11/1992 (Ex.P-1) was lodged without any reasonable or probable cause. Although, in the absence of any averment no piece of evidence could be looked into yet no evidence was produced on behalf of plaintiffs in this regard. In this case, the acquittal of the accused/respondents on the basis of benefit of doubt does not come within the domain of "honourable acquittal". Even from the judgment dated 22.4.1999 (Ex.P-18) it is not evident that the accused was falsely implicated by the Complainant/Defendant No, 1 (since died) due to malice and ulterior motives. The documents of criminal case i,e, Ex.P-1 to Ex.P-20 produced by the plaintiffs indicate that there were sufficient grounds for complainant to lodge FIR which was not without probable and reasonable cause. Thus aforementioned basic ingredients for the grant of damages do not co-exist in the case of plaintiffs and V findings of the learned trial Court in respect of Issue No, 1 are reversed.
10. The other question in this suit was as to whether Ghulam Abbas, Defendant No, 2, being prosecution witness in criminal case had absolute privilege and the statement which was made by him during course of judicial proceedings was protected and suit filed by respondents/plaintiffs was not maintainable? Admittedly Ghulam Abbas/Defendant No, 2 was doctor and Government employee who allegedly conducted post-mortem of the deceased and appeared as witness in FIR No, 11/1992 dated 19.1.1992 (Ex.P-1). Although the learned Addl. Sessions Judge by making observation against Defendant No, 2 with regard to his misconduct for spoiling the evidence in the said criminal case. Th9 matter referred to the Director Health for taking appropriate disciplinary action against him, yet he had absolute privilege qua the statement which was made by him being a prosecution witness during the course of judicial proceedings. The premium/benefit in that criminal case was given to the accused/respondents and as a result they were acquitted from the charge by giving benefit of doubt. Defendant No, 2 was just the witness of criminal case and plaintiffs were not prosecuted by him. Since the plaintiffs were not prosecuted by the Defendant No, 2, the suit for damages on account of malicious prosecution to his extent was not maintainable. In view of above findings of the learned trial Court in respect of Issue No, 3 are not valid and, therefore, the same are also reversed.
11. Adverting to the quantum of damages', it is observed that Issue No, 1 was significant and important. The impugned judgment and decree is chiefly based on the findings of Issue No,
1. The onus of same was upon the plaintiff. Only Muhammad Yasin, Plaintiff No, 2 had appeared in witness box as PW-1 while plaintiffs No, 1, 3 to 7 did not appear in support of their versions. Documents Exh.P/1 to Exh.P/22 relate to criminal proceedings of the murder case. PW-1 deposed almost the same facts as narrated in the plaint but did not give the detail and nature of claimed damages mentioned in Para-11 of the plaint. All the plaintiffs have claimed damages in pursuance of criminal case, mental agony, loss of reputation in public, case and travelling expenses and fee of lawyers.
Except Plaintiff No, 2 no one appeared in support of claimed damages. It is now well settled that pleading is not substitution of evidence. In examination-in-chief, PW-1 deposed that they have jointly spent Rs, 66,00,000/- in pursuing inquiries, case and fee-of lawyers. In cross examination, he stated that the expenditure was Rs, 35, 00,000/- while in Para-11 of the plaint, 'plaintiffs claimed damages Rs, 71,40,000/-. The version of PW-1 is self- contradictory. Even his deposition is not on each score of claimed damages. Since the plaintiffs have failed to prove Issue No, 1 through cogent and valid evidence, they are not entitled to any damages.
12. In view of above discussed facts, instant appeal is accepted and the impugned judgment and decree dated 23.6.20105 passed by the learned Civil Judge Ist Class, Kot Addu is set aside and suit of the respondents is dismissed with no order as to costs.