'SYED AFSAR SHAH, J.--- This civil revision is directed against the judgment dated 21-6-2011 rendered by learned Additional District Judge-V D.I.Khan, whereby the appeal filed against the judgment/decree dated 27/9/2010 recorded by learned Civil Judge-III D.I.Khan was dismissed.
2. The facts to which there is little or no dispute are as follows:- 'It so. Happened that on 23/5/2003 at about 1230 hours, Allah Ditta son of Ahmad Nawaz, resident of Basti Lalwali, made a report in Police Station Paroa D.I. Khan to the effect that on 18-5-2003 at 2100 hours his nephew Allah Bakhsh, who was young and had already married after going for thresher was missing. He was searched in the surrounding area but in vain. At some distance from their village, Ghulam Haider, Nasir, Haider and Manzoor, were residing, whose womenfolk were not enjoying good reputation and that people of the vicinity used to visit their houses off and on. Allah Ditta, the complainant, was suspecting that those persons might have knowledge about his nephew Allah Bakhsh.
3. On report of the respondent/complainant, inquiry under section 156(3), Cr.P.C. Was under process when in the meanwhile on 23/5/2003, the dead body of Allah Bakhsh was found lying in the water near Basti Kanwan Wali. The dead body was completely decomposed and extremely disgraced.
4. On receipt of the information, Shah Nawaz Khan ASI proceeded to there, where Ghulam Hassan alias Hasoo, father of the deceased, made him a report wherein he charged accused Ghulam Haider, Kamil Nawaz, Mehrban alias Bana, Qaizar, Nasir and Ghulam Hassan. Father of the deceased also disclosed to ASI Shah Nawaz that at the time of occurrence, one Sona Khan had seen the deceased with accused Nasir in his baithak, that he had also seen Kamil Nawaz, Mehrban and Qaizar while entering in the baithak of Ghulam Haider. The motive for the offence as disclosed by father of the deceased was that the accused were suspecting the deceased for having illicit relations with the womenfolk of their family. On his repot, case vide FIR No, 114 dated 23/5/2003 was registered against the petitioner/accused and others under sections 302/297/148/149, P.P.C. In Police Station Paroa D.I.Khan.
5. After usual investigation conducted by the local police of Police Station Paroa, complete challan was submitted .Against the petitioner/ accused and others to the court of learned Sessions Judge D.I.Khan, where on conclusion of the trial petitioner/accused along with his co-accused were acquitted.
'On his acquittal from the court of learned Sessions Judge D.I.Khan, Qaizar Khan, the petitioner, then filed a suit against the respondent/complainant Ghulam Hassan alias Hassu for the recovery of Rs,5,00,000/- as damages for malicious prosecution.
6. When summoned by the learned lower court, the respondent contested the suit, inter alia, on the ground that he had charged the petitioner along with others in light of the statements of eye- witnesses and in which respect he also made reference to the investigation conducted by the local police and confessional statement of co-accused.
7. , The learned trial court after recording evidence of the parties for and against dismissed the suit vide its judgment/decree dated 27/9/2010 and aggrieved of the same, the petitioner filed appeal in the court of learned Additional District Judge-V D.I.Khan, but there he also met the same fate as his appeal was dismissed by the appellate forum vide its judgment dated 21/6/2011 and now he has come to this court by filing the instant revision petition.
8. It is the contention of learned counsel for the petitioner that the judgments and decrees of the two courts below are against law, facts and material available on record. He further added that the learned courts below have not considered the background of the case in its true perspective. He went on to say that the findings rendered by both the courts below are the result of mis-reading and non-reading of evidence. Developing his arguments, learned counsel for the petitioner added that the respondent .Without any reasonable and probable cause had initiated criminal proceedings against the petitioner which finally ended in his favour.
9. As against that, learned counsel for the respondent/complainant argued that he had a reasonable and probable cause to initiate criminal proceedings against the petitioner and that failure to prove the same beyond reasonable doubt would not be termed as malicious prosecution.
10. I have considered the submissions of learned counsel for the parties and gone through the record of the case with their valuable assistance.
11. It appears from the record appended with the petition that Mehrban, the petitioner and others, were charged by the respondent for the murder of his son, however, after a regular trial conducted in the court of learned Sessions Judge D.I.Khan, he was acquitted and even the appeal filed in this court against the said acquittal also met the same fate.
'As per version of the petitioner, since he belongs to a respectable family of D.I.Khan and due to the criminal charge leveled against him by the respondent malafidely, he has been disgraced, therefore, he is entitled for the recovery of the suit amount as damages. The petitioner in support of his version in addition to himself has got examined patwari of the circle who produced the revenue record with respect to his landed property and as per jamabandi as Ex.PW.1 /2 he has got extensive landed property in D.I.Khan.
'Again appearing as PW-2, he stated that he is Zamindar of the area, belongs to a respectable family of D.I.Khan and, as such, is enjoying a good reputation. He further stated that due to the false charge brought against him by the respondent and which was due to political rivalry, he was disgraced and humiliated in the society and in his as well.
'In the given circumstances, the question which falls for determination before this court is to see as to whether mere acquittal of the petitioner in a criminal case would confer any right on him to sue the respondent for damages on the basis of malicious prosecution.
By now there is no cavil with the proposition that the prosecution of a criminal offence would only provide a cause for damages for malicious prosecution to the acquitted accused if it is based on malice of the complainant, and that too when the same is without any reasonable and probable cause. In an action for malicious prosecution, the plaintiff has to prove that:-
(i) he was prosecuted by the defendant of a criminal charge;
(ii) the proceedings complained of terminated in his favour.
(iii) the defendant instituted or carried on such prosecution maliciously, or in other words the prosecution was instituted and carried on with a malicious intention;
(iv) there was absence of reasonable and probable cause for such proceeding; and
(v) he has suffered damage.
'Before adhering to other aspects of the case, it will be more appropriate to consider as to what is malicious prosecution and probable and reasonable cause.
12. As per Lectric Law Library Lexicon, malicious prosecution means torts, or remedies which import a wanton prosecution or arrest, made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not warrant, as appears by the result. This definition, however, will be analysed by considering the nature of the prosecution.
Again, according to legal exploration by Dustin Mark Ammons Attorney at Law, malicious prosecution is the intended filing of law suits, without adequate reason or substances, with sole intention to create problem to the respondent. All malicious activities are punitive and the ID defendant can claim damages if malice intention is established.
Similarly, as per legal glossary, malicious prosecution is an action instituted with intention of injuring defendant and without I probable cause.
In Law dictionary, the meanings of malicious prosecution has been given as filing a law suit with intention of creating problems for the defendant such as costs, attorney's fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the law suit wins and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages.
In Halsbury's Laws of England (Fourth Edition), Volume 45, Page 612 Para 1342, it is observed that a prosecution exists where criminal charge is made before a judicial Officer or tribunal. A malicious prosecution is an abuse of the process of the Court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort, the prosecution must have been malicious and terminated in favour of the plaintiff.
13. From the above definitions, one could safely say that malicious prosecution is an action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without probable cause arid for a purpose other than that bringing the alleged offender to justice. An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal accused or civil defendant in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The accused in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant/respondent.
An action for malicious prosecution is distinct from an action for false arrest or false imprisonment.
If a , person is arrested by a police officer who lacks legal authority for the arrest, the I proper remedy is an action for false imprisonment. An action for 'malicious prosecution is appropriate only when the judicial system has been misused.
'The element of probable and reasonable cause has been well-defined by their lordships in a case titled Province of East Bangal and others v. S.M. Faruque and others (PLD 1959 Dacca 268) in the following words:- 'The law on the subject is well-settled. It is stated in Clerk and Lindsel on Torts, 9th Edition, p.662, that an .Individual should not be harassed by legal proceedings improperly instituted against him.
It is the right of every one to put the law in motion if he .Does so with the honest intention of protecting his own or public interest. But it is an abuse of that right to proceed maliciously and without reasonable and probable cause for anticipating success. Hence the question is: What is meant by "reasonable and Probable cause". "Reasonable and probable j cause" means a genuine belief based on reasonable grounds that the proceedings are justified.
'In the case of Herniman. V. Smith (I), Lord Atkin said that no better statement of what is reasonable and probable cause is to be found than in the words of Hawkins, J., in Hicks v. Faulkner (2). Thereafter, his Lordship quoted the following observations of Hawkins, J.: " I should define reasonable and probable cause to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accused to the conclusion that the person charged was probably guilty of the crime imputed".
'Similarly, Salmond on the Law of Torts, 9th Edition, page 658659, says: "Having regard, however, to the facts known to the defendant, he must show a reasonable sound judgment and use reasonable care in determining whether there are sufficient grounds for the proceedings instituted by him, and any failure to exhibit such judgment or care will be imputed to him as a want of reasonable and probable cause".
14. In a case titled Balbhaddar Singh and another v. Badri Sah and another (AIR 1926 Privy Council 46), it was observed by their Lordships that:- "In an action for malicious prosecution, the plaintiff has to prove that he was prosecuted by the defendant; that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating, that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect".
15. The question of malicious prosecution was again attended by their Lordships in a case titled Naber Shaha v. Shamsuddin and others (PLD 1964 Dacca 111) where the following observations have been made:- "In a suit for malicious prosecution, rather to sustain an action for malicious prosecution, the following essentials must co-exists:-
(1) A prosecution of the plaintiff by the defendant..
(2) There must be a want of reasonable and probable cause for that prosecution.
(3) The defendant must have acted maliciously (i.e,, with an improper motive and not to further the ends of justice.)
(4) The prosecution must have ended in favour of the person proceeded against.
(5) It must have caused damage to the party proceeded against".
'The above views have been reiterated by the august Supreme Court in a case titled Muhammad Akram v: Mst. Farman Bi (PLD 1990 Supreme Court 28).
16. Again in a case titled Subedar (Retd.) Fazale Rahim V. Rab Nawaz (1999 SCM R 700), the honourable Supreme Court ruled as under:- "Mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect".
'Wisdom is also derived from the case titled UBL and 5 others v. Raja Ghulam Hussain and 4 others (1999 SCM R 734) and Rafique Ahmad Khan v. Province of Punjab through Secretary, Education and others ( 2004 SCM R 1065).
17. In view of the dicta laid down by the august Supreme Court, if one goes to the record of the case, one could reach. To an irresistible conclusion that son of the respondent/complainant was murdered, for which he charged the petitioner along with others. After registration of the case, proper investigation was conducted by the local police and on completion of the same, complete challan was submitted to the court of competent jurisdiction under section 173, Cr.P.C. During the investigation, one of the accused had even made confession. Moreover, the petitioner during his statement recorded in the court of Civil Judge as PW-2 had admitted that prior to the present occurrence, there was no personal enmity between the parties. In the attending circumstances of the case, the prosecution on the part of the respondent/complainant was more than reasonable.
Rel. Hussain Gul v. Soorat Shah and others (2014 M LD 1008 (Peshawar).
18. Again in the present case, no doubt the petitioner has been acquitted by a court of competent jurisdiction from the charge of murder, but mere his acquittal would not confer any right on him to sue the respondent / complainant for damages on the basis of malicious prosecution, because in the case in hand, as stated earlier, the element of malice on the part of the respondent/complainant is missing in toto.
Moreover, the same in any case does not appear to be without p .Any reasonable and probable cause and which position stands rightly appreciated by the courts below concurrently.
19. In view of the above, the revision petition being without any IQ substance is hereby dismissed with no order as to costs.