' YAR MUHAMMAD, J.---This Civil 1st Appeal is directed against the judgment/decree dated 14.10.2010 passed in Civil Suit No 94 of 2006 by Civil Judge 1st class Gupis whereby the learned Judge has dismissed the suit of the appellant/plaintiff.
2. Concisely the facts leading to this petition as divulging from the pleadings are that plaintiff/appellant filed a suit in the court of Civil Judge, Gupis claiming Rs,100,0000/- to be paid to him by the defendants as damages on account of malicious prosecution with the contention that on 20.12.2004 at the instance of the defendants criminal case FIR No, 37/2014 under sections 11/18 Zina Ordinance read with Section 506, P.P.C. Was registered against the plaintiff with the allegations that he tried to kidnap the daughter of defendant-1 on gunpoint. Consequent Upon the said case he was arrested by local police and subsequently committed him to judicial lock-up where he remained for a period of 20 days. During investigation of the case, a 12 bore rifle was recovered froin the plaintiff as weapon of offence therefore, another case bearing FIR No,38/2004 under section 13 A.O. Was also registered against the plaintiff. The plaintiff has contended that he was tried against the said cases for a period of more than two years and lastly acquitted from all the charges. The plaintiff has contended that the allegations leveled in the criminal case since being serious and defamative in nature lowered him in the society for which he has claimed Rs, 875,000/- as damages.
' He has further contended that while defending these cases he bore the remaining suit amount as expenditures. It has alleged in the plaint that defendant-1 had to pay some amount to the plaintiff and to avoid the payment, he registered the above criminal cases based on malice therefore, he is entitled to recover the suit amount as damages etc.
3. The defendants/respondents through filing combined written statement have contested the suit with the contention that the criminal cases got registered against the plaintiff were based on strong evidence but he was acquitted from the charges due to resling some P.Ws. From their original statements and also creation of doubts in the case. They have contended that the criminal cases were registered after collection of evidence by the police through carrying investigation as provided under section 156; Cr.P.C. The defendants have claimed that actually the plaintiff had asked the defendant-1 to give his daughter in Nikah of the plaintiff which was refused resultantly on the day when FIR No, 31/2004 was registered the plaintiff had come to the house of the defendant-1 armed with a 12 bore gun for abducting the daughter of the defendant-1. He has vehemently denied about any debt of the plaintiff was due on him.
4. The learned trial court while taking into consideration the divergent pleadings of the parties formulated as many 8 issues and after completion of a full dress trial he dismissed the suit vide his judgment dated 14.10.2010. Feeling aggrieved and dis-satisfaction with the said judgment, the plaintiff/appellant has preferred this Civil 1st appeal impugning the same.
5. We have heard Mr. Muhammad Hussain Shahzad, Advocate for the appellant and have perused the entire record of the case. The learned counsel while advancing arguments contended that the criminal proceeding initiated against the plaintiff was based on malice because the defendant-1 while engaging the plaintiff in such proceedings was of the intention that the plaintiff/appellant shall not ask the defendant to return the debt.
6. Mir Akhlaque Hussain, Advocate the learned counsel for the respondents on the other hand contended that the plaintiff has failed in proving the suit because he did not adduce even a single witness in support of his claim and for that reason the learned trial court has dismissed the suit as unproved.
7. We have given our thoughtful consideration to the arguments advanced before us by the learned counsel for the parties and have perused the entire record of the case with their able assistance.
8. It is proved on the record that at the instance of defendant-1 two criminal cases had registered against the plaintiff/appellant and subsequently the cases have been disposed of acquitting the plaintiff from all the charges. The plaintiff has alleged in the plaint that he was prosecuted against malice based criminal cases as such, we are of the considered view that in this appeal vital point for determination is "Whether the criminal cases were based on malice". What does means by "malice" in the tort of malicious prosecution "malice" means the presence of some improper and wrongful motive that is to say some motive other than a desire to bring to justice a person when the prosecutor honestly believes to be guilty. The ingredients of the tort of malicious prosecution are that in the 1st place there must be a prosecution. Secondly, the prosecution must be an unsuccessful. Thirdly, there must be an absence and reasonable cause for the prosecution and fourthly, there must in addition to the absence of reasonable and probable cause, be malice as well.
9. In the instant suit the plaintiff has contended that he was prosecuted because a loan was due and payable to him by the defendant-1 and to avoid the payment the criminal cases were registered against him but at trial the defendants failed to substantiate the contention through leading any evidence despite of the fact that an issue on the specific point was framed lying the burden of proof upon the plaintiff. We were astonished while noting that the plaintiff except recording his own statement, no witness was examined in proof of any issues and so much so he himself did rot state fully his case which is a failure on the part of the plaintiff constraining us to believe that the story of loan alleged in the plaint was not correct.
10. The defendant-1 on the other hand has stated that no loan of the plaintiff was due on him. In this regard the allegation of the plaintiff seems not to be believable because firstly, the plaintiff failed to substantiate the same through leading any evidence and secondly till now no steps for the recovery of the alleged loan have been taken by him. The actual difference between the plaintiff and the defendant as proved on record was that defendant had refused the request of the plaintiff for giving his daughter in the Nikah of the plaintiff which was the actual fact emotionalized the plaintiff and pushed him to go to the house of the defendant for extending threats.
11. The criminal cases against the plaintiff, no doubt, were constituted at the instance of the defendant. The defendant-1 had complained through telephone that the plaintiff has come to his house equipped with gun to abduct his daughter. On receipt of the information the authorities of the concerned police station firstly investigated the matter under section 156, Cr.P.C. And after collection of evidence required for establishment of prima face case, the FIR was registered. We have also gone through the evidence recorded in the criminal cases and came to the conclusion that on the day of occurrence, no doubt, the plaintiffs had gone to the house of the defendant holding a gun in his hand and have also extended threats to the family members of the defendants for dire consequences and for abduction of the defendant's daughter. This very fact although was substantiated through evidence, even then the plaintiff was acquitted of the charges because of the mistakes committed in the investigation by the 1.0. It is admitted on the record that Plaintiff had asked the defendant to give his daughter in his Nikah which was refused and the refusal was the grudge in the mind of the plaintiff against the defendant-1, otherwise there was no dispute between the parties for falsely implication of the plaintiff in the criminal cases. We have also noticed that during proceeding in the criminal cases, the plaintiff remained mum when he was questioned in his statement under section 342, Cr.P.C. As to "why the criminal cases were registered against him". In reply he did not point out any reason for which the cases were registered. Thus, in our opinion the plaintiff has hopelessly failed to prove that the criminal cases registered against him were based on malice which was the primary requirement for claiming the damages against malicious prosecution.
12. By birth every human being is respectable and nobody is allowed to play with the honour of the others. Therefore, we hold that plaintiff is also a respectable person but due to criminal litigation against him if he was dishonored in the Society and the people of the locality stopped dealings with him, no evidence, in this regard was brought on the record by him. Moreover, he also failed to prove the criminal cases were based on any malice.
13. Plaintiff has further alleged that the criminal proceedings initiated against him were due to collusion of defendant-1 with the police. Records shows that the criminal cases were registered after conducting enquiry provided under section 156, Cr.P.C. And when the 1.0. Succeeded in collection of evidence required for a prima facie case, he registered the case but the plaintiff has not made the police officer party in the suit resulting in suffering the case for non-joinder of necessary party.
14. Viewing the case in all angles, we find no reason to interfere with the findings returned by the learned court of the first instance.
15. For the reasons discussed above, this appeal is meritless and dismissed.