' CH. MUHAMMD MASOOD JAHANGIR, J.---Briefly the facts are that Abdul Majeed, plaintiff (to be referred hereinafter as respondent No,!) filed a suit for recovery of Rs,400,000 as defamation on account of malicious prosecution against Muhammad Fazil, defendant No,! (to be referred hereinafter as the appellant) and his brother Ranjha, defendant No,2 (to be referred hereinafter as respondent No,2) before the learned trial court. Both the appellant and respondent No,1 contested the said suit by filing written statement. The learned trial court framed the following issues out of the divergent pleadings of the parties:-
(1) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(2) Whether the defendants are entitled to special costs under section 35-A, C.P.C.? OPD
(3) Whether the defendants leveled false allegation of illicit relations against the plaintiff? OPP
(4) Whether the plaintiff is entitled to the decree for recovery of Rs,4,00,000 as damages as prayed for? OPP
(5) Relief.
' After collecting the stock of oral as well as documentary evidence led by them and decreed the suit against the appellant and his brother respondent No,2 vide judgment and decree dated 1-4- 2005. The appellant along with respondent No,2 being dissatisfied with the said judgment and decree filed an appeal and vide judgment and decree dated 29-10-2005 passed by the learned lower appellate court, the same was partly allowed and while setting aside the judgment and decree to the extent of respondent No,2 and the suit was partly dismissed whereas while maintaining the judgment and decree passed by the learned trial court to the extent of the appellant, the appeal has partly dismissed. Being aggrieved by judgments and decrees passed by both the learned courts below, the appellant has filed the instant Regular Second Appeal.
2. The learned counsel for the appellant has argued that both the courts below have wrongly decided issues Nos.1 to 5 against appellant and failed to appreciate the evidence/material available on record in true perspective, that the courts below while rendering their findings on issue No,1 omitted to consider that respondent No,1 failed to prove the quantum of damages, that the accusation was not levelled by the appellant in Crl. Misc. No,214-H of 1997 (Exh.P2) filed by him, rather it was asserted by his counsel and thereafter at the time of hearing of said Crl. Misc. The said accusation was withdrawn before the Court, that in the present case no regular prosecution was ensued followed by recording of evidence and rendering some judgment by the court of competent jurisdiction while declaring that it was malicious prosecution on account of some malice proved on the record, but in the present case only a miscellaneous petition in the nature of habeas corpus was filed before this Court wherein finally the allegation of illicit relations allegedly leveled against respondent No,1 were withdrawn and this Court did not decide the said miscellaneous petition in the light of said accusation, that both the courts below have acted illegally and committed material irregularity in the exercise of their jurisdiction while decreeing the suit filed by respondent No,1, that the learned trial court had failed to frame proper issue regarding malicious prosecution and, therefore, just and fair trial could not be conducted; that both the courts below have passed the impugned judgments and decrees in sheer violation of law as material issue has not been answered and the case of the appellant was seriously prejudiced, that substantial error/defect is floating on the surface of the record of the case and the impugned judgments and decrees passed by both the courts below are liable to be set aside. In support of his contentions, the learned counsel for appellant has relied upon the judgments reported as Abdul Rauf v. Abdul Razzak and another (PLD 1994 SC 476), United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others (1999 SCMR 734), Khawaja Muhammad Naseem v. Shafiqur Rehman (1996 CLC 1460), Azeem Food Industries Ltd. And 4 others v. Industrial Development Bank of Pakistan through Managing Director/Principal Officer (1999 CLC 1915) and Naila Junaid v. Additional District Judge and 2 others (2005 MLD 834) and prayed for acceptance of the instant regular second appeal, setting aside of the impugned judgments and decrees passed by both the courts below and for dismissal of the suit filed by respondent No,1 .
3. On the other hand the learned counsel for respondent No,1 has supported the impugned judgments and decrees passed by both the courts below by arguing that there is no denial that the appellant had leveled the allegation of illicit liaison against respondent No,1 along with Mst.
Sakina wife of respondent No,2, the brother of the appellant, that the learned counsel for the appellant appeared before this Court in CrI.Misc.No,214-H of 1997 (Exh.P2) on behalf of appellant, no doubt the said counsel withdrew the said allegation but he admitted while recording his statement that these were leveled against the respondent on the instructions of the appellant, that appellant filed an appeal before the august Supreme Court of Pakistan against the order dated 14-4-1997 (Exh.P1) passed by this Court in Crl.Misc.No,214-H of 1997 and in the said memo of appeal the appellant again reiterated the said allegations; that respondent No,1 is a man of repute and also gained respect in the Society, which was acknowledged by Muhammad Akbar DW2 and the appellant as DW1 before the learned trial court during the course of evidence. The learned counsel for the respondent while relying upon the judgments reported as Abdul Majeed Khan v. Tawseen Abdul Haleem and others (PLD 2012 SC 80), Abdul Wahab Abbasi v. Gul Muhammad Pajano (PLD 2008 Karachi 558), Haji Syed lqbal Ahmed v. Sahibzada Syed Liaquat All (PLD 2013 Sindh 494) and Muhammad Rafiq Memon v. Hakim Ali (2010 CLC 1957) has prayed for dismissal of the instant regular second appeal.
4. After hearing the learned counsel for the parties and perusal of the record, I have noticed that these are the admitted facts that Muhammad Fazir, the appellant had filed CrI.Misc.No,214-H of 1997 (Exh.P2) before this Court against Abdul Majeed, respondent No,1 which was also supported by affidavit (Exh.P3) furnished by the appellant in support of the contents of the said criminal miscellaneous; that in Paragraphs Nos.2 and 4 the following allegations were leveled by the appellant against respondent No,1:- "2. That about 1-1/2 years ago the respondent took Ranjha, along with his family members, house hold goods and his cattle to his "Daira" in his land situated in Chak No,319/JB Tehsil and District Toba Tek Singh. He has been living at this "Daira" of respondent Abdul Majeed for about 1-1/2 years and during this period the respondent Abdul Majeed developed illicit relations with Mst. Sakina the wife of Ranjha (brother of the petitioner).
4. That on account of the forcible abduction of Mst. Samina daughter of Ranjha and illicit relations of the respondent with the wife of Ranjha, the petitioner and Ranjha felt aggrieved. The petitioner took away Ranjha, his house hold goods family members and Cattle to village Hassi Chak No,376/JB Tehsil and District Toba Tek Singh-Ranjha and the petitioner demanded restoration of detenues Mst. Asia and Abdia minor daughters of Ranjha from the respondent but he (respondent) refused flatly. He further said that he would return the minor daughter of Ranjha only to Mst. Sakina the wife of Ranjha. The petitioner and Ranjha sent Mst. Sakina for fetching the minor daughters of Ranjha from illegal custody of the respondent about 16/18 days ago. Till today she (Mst. Sakina) has not turned up with the minor daughters of Ranjha. It appears that Mst. Sakina has also been detained by the respondent illegally. It seems that Mst. Sakina with whom the respondent had developed illicit relations, has also been detained by him (respondent). The petitioner and Ranjha sent massage (message) to respondent for the release of determs (detenus) but no reply has been received." ' that the said criminal miscellaneous was clubbed with Crl. Misc. No,139-H of 1997 earlier filed by Mst. Samina daughter of Mst. Sakina and both the said petitions came up for hearing before this Court on 14-4-1997. Then this Court passed the following order (Exh.P1) in the connected Crl.Misc.
No,139-H of 1997, which reads as under:-- "Fazil respondent has brought Mst. Najma and Mst. Aisha. Mst. Najma who is the daughter of Mst.
Sakina is about 14 years of age while Mst. Aisha is about 5 years of age. Both the girls want to go with their mother. So be it. Fazil respondent prays for a short adjournment to honour the commitment that he had made to this Court on 25-3-1997 with respect to the transfer of the land in question in names of the minor children.
2. The learned counsel for the respondent submitted that Mst. Sakina had illicit relations with Ch. Abdul Majeed with whom she was living. The learned counsel for the petitioner submits that this was a false accusation and produced Ch. Abdul Majeed in Court who is a beared man of about 80 years of age. His left arm is invalid on account of sickness. On seeing this Ch. Abdul Majeed, the learned counsel for the respondent withdraws the accusation that he had leveled under instructions from the respondents. ' and that the said order was assailed by the appellant before august Supreme Court of Pakistan by filing an appeal which was also dismissed.
5. From the aforesaid admitted facts, there is no denial that the appellant had leveled allegation of illicit liaison against respondent No,1 along with Mst. Sakina by filing Criminal Miscellaneous No,214- H of 1997 (Exh.P2) before this Court. The said allegations were also reiterated by the appellant while swearing an affidavit (Exh.P3), which was filed in support of the said criminal miscellaneous. No doubt the counsel got recorded his statement on 14-4-1997 for withdrawal of such accusation, but he categorically stated that these allegations were leveled upon respondent No,1 on instructions of appellant.
6. For the just decision of the case, it will be appropriate that the factors, which are required to be established by a plaintiff before a decree for malicious prosecution could be awarded read as follows:- "(i) That the plaintiff was prosecuted by the defendant;
(ii) That the prosecution ended in plaintiff's 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 plaintiff's liberty and had also affected his/her reputation; and finally
(vi) That the plaintiff has suffered damages."
' The term "malice" has been elaborated and defined in the authoritative judgment reported as "Abdul Rasheed v. State Bank of Pakistan" (PLD 19/0 Karachi 344). The operative para No,7 is relevant and for ready reference is reproduced hereunder:-- "7. The term '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 ((1352) 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. ((1886) 11 A. C 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 reasonable and probable cause cannot be supplied by evidence 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) A C 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 K B 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 decisions 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. 601). 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 Braid Sunder Deb and others v. Bamdeb 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."
7. The stance of appellant that the said allegations were leveled by counsel for the appellant and not by the appellant is without any substance and force. Even otherwise the appellant was bound by the deeds and words of his counsel. During the course of arguments the learned counsel for the appellant has frankly admitted that appellant did not initiate any proceedings against his counsel, who allegedly had leveled the said allegations upon respondent No, 1 . Furthermore the appellant again repeated the said allegations not only in his affidavit (Exh.P3) filed in support of his criminal miscellaneous (Exh.P2), but also repeated same allegations in C.P. Filed in the august Supreme Court of Pakistan. The said criminal miscellaneous was filed by the appellant through his counsel and the said relationship between the appellant and his counsel continued even during the proceedings thereof before this court. Neither the said relationship had come to an end nor it is the case of the appellant that appellant had withdrawn power of attorney of his counsel. It is settled principle of law that till the relationship between the counsel and client is found to be in existence, the client is bound by the act of his counsel in view of the dictum laid down by the august Supreme Court in the judgments reported as Ex.Hay. Mirza Mushtaq Bain v. General Court Martial (1994 SCMR 1948) and Hassan Akhtar and others v. Azhar Hameed and others (PLD 2010 SC 657) and the appellant cannot be permitted to say that the said allegations were merely levelled by his counsel as he himself had not only introduced the story regarding the alleged illegitimate relationship between the respondent and Mst. Sakina in CrI.Misc.No,214-H of 1997, but also repeated the same in the affidavit sworn in support of the said application as well as the C.P. Filed before the august Supreme Court of Pakistan. It is borne out from the record that earlier Mst. Samina elder daughter of Mst. Sakina had filed Crl.Misc. No,139-H of 1997 against the present appellant and 2 others, who happened to be her real paternal uncles for the recovery of her mother Mst. Sakina and afterwards the present appellant brought up Crl.Misc. No,214-H of 1997 with the aforesaid accusation against respondent No,1 without reasonable and probable cause existing for it merely to hurt, humiliate and defame him, who had good reputation in the society as well as a prominent figure in the Society, which fact he has proved while appearing as P.W.1 and produced Ata ur Rehman as P.W.2, who also asserted that by the false accusation leveled by the appellant, the honour of respondent No,1 was defamed in the society. On the other hand the appellant appeared as DW1 and produced Muhammad Akbar (DW2), who failed to prove if the said allegations were leveled due to some reasonable belief and it was not intended to defame respondent No,1 without any just cause and reason. Even otherwise the true picture is depicted from the order dated 25-3-1997 passed by this Court in Crl. Misc. No,139-H of 1997 according to which said Mst. Sakina Bibi while entering appearance in court stated her husband Ranjha was of a low intellect whose 3 acres land was mutated by Fazil appellant in-spite of that said Ranjha having 5 daughters. This fact was also admitted by Fazil appellant at the relevant time and offered to mutate 1-1/2 acres of land in question in the name of the children of Ranjha. The malice on the part of the appellant was alleged in para-3 of the plaint that the accusation was leveled against respondent No,1 just to defame and pressurize him from withdrawing to support Mst. Sakina Bibi so that they should succeed in their nefarious design. The said malice on the part of appellant is borne out from the facts and circumstances of the case as enumerated above and unrebutted by the appellant by the production of any evidence of unimpeachable character.
8. The other contention of the learned counsel for the appellant that since the said accusation was subsequently withdrawn by the counsel for the appellant before this Court during the proceedings of the Crl. Misc. On 14-4-1997 is misconceived as once the false allegations were leveled, its subsequent withdrawal does not restore the honour/respect of the affected party and absolve the appellant from the consequences thereof. Even otherwise the appellant himself repeated the same allegations before the august Supreme Court of Pakistan by filing C.P. So the learned lower appellate court to the extent of appellant No,1 has eminently maintained the findings of the learned trial Court.
9. The next question raised by the learned counsel for the appellant is that both the courts below have not ascertained the quantum of damages and respondent No,1 also failed to mention the detail of his loses in the body of the plaint or while appearing in the witness box as P.W.1. The perusal of plaint of the suit filed by respondent No,1 reveals that he had assessed his losses and claimed recovery of damages of a specific amount of Rs,400,000. In this regard the judgment referred by the learned counsel for the appellant reported as 1999 CLC 1915 is of no help to the case of the appellant. The august Supreme Court of Pakistan in the judgment reported as Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) while relying upon the judgment of this court reported as PLD 1957 LAHORE 283 held that exact amount was not determinable for the assessment of damages and for this reason a suit for malicious prosecution cannot be dismissed. Moreover, owning to the reliance placed upon the judgment reported as PLD 1994 SC 476 the contention raised by learned counsel for the appellant that said damages could be awarded only on strict proof and when while deciding the said criminal miscellaneous (Exh.P2) no cost was awarded by this Court, therefore, the suit filed by respondent was not maintainable is also misconceived. In Muhammad Akram's case (supra) while dealing with the same question it has been held that the right for initiating proceedings against malicious prosecution always lies even if there is a specific provision in the statute for imposition of actual cost and compensatory cost. Both the courts below have determined the damages specifically and awarded a decree in favour of respondent No,1 and against the appellant after appreciating the evidence available on file.
10. The other judgment reported as 2005 MLD 834 cited by learned counsel for the appellant is also not applicable to the facts of the instant case rather the same runs on different footings as in the said case the party had withdrawn the prejudicial statement before the same court and it was held that proceedings under section 476, Cr.P.C. Could not proceed whereas in the present case both the courts below have decided the suit for recovery of damages on account of defamation. Even otherwise if the allegations were withdrawn by the appellant or his counsel during the proceedings of the Crl. Misc. Petition before this court, but then the same were again repeated by the appellant in the C.P. Filed before the august Supreme Court of Pakistan. However, in the judgment reported as 1999 SCMR 734 the ingredients for the recovery of damages on account of the malicious prosecution have been described and the learned courts below after considering the said ingredients have passed by the impugned judgments and decrees.
11. So far as the contention raised by learned counsel for the appellant that learned trial court did not frame the proper issues in the light of divergent pleadings of the parties is concerned, suffice it to say that the issues were framed by the learned trial court on 4-5-1999 and the matter kept pending before the said court till 1-4-2005 when finally the suit was decided, but during such a long period neither any objection was raised by the appellant nor any petition moved for amendment or correction of issues. Even the appellant did not raise, any such question in the memo of first appeal filed before the learned lower appellate court. It is found that both the parties produced their evidence before the learned trial court keeping in view their pleadings and the said evidence has been duly appreciated by both the courts below. At this stage the objection that proper issues were not framed is not tenable and even the grounds taken by the appellant in the present appeal do not find mention any such objection. The learned counsel for the appellant has also failed to point out that as to what prejudice was caused to the appellant by not framing any other issue as claim set up by respondent No,1 mainly rested on the admitted fact that, the appellant had leveled a false accusation of illicit liaison between him and Mst. Sakina Bibi, which was a matter of record and the appellant failed to rebut the same. The august Supreme Court of Pakistan has dealt such question authoritatively while holding that where the parties have led evidence keeping in mind their pleadings, objection regarding non-framing of any issue or improper framing of issue loses its weight. Reliance in this respect can be placed upon the judgments reported as Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another (1988 SCMR 4), Fazal Muhammad Bhatti and another v.. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) and Abdul Karim v. Haji Noor Badshah (2012 SCMR 212).
12. No doubt second appeal to this Court is maintainable against any decree passed in an appeal by lower appellate court/subordinate to this Court on the grounds as provided in section 100, C.P.C.
And the right is restricted and limited to the said grounds. However, it is not expected that while dealing with second appeal this Court will enter into reappraisal of evidence stretching down the concurrent findings of facts. It is found that the instant appeal does not fall within any of the exceptions provided under section 100, C.P.C. And, therefore, the instant Regular Second Appeal being devoid of any force is dismissed.