Muhammad Khalid Mehmood Khan, J. The appellants filed a suit for recovery of Rs.11.800,600/- against the respondents claiming that appellant No.1 is an advocate by profession, the appellant No.2 is Government employee as well as landlord, the appellant No.3 is the son of appellant No.1 and was studying in B.A at the relevant time, all the appellants were enjoying good reputation in the society, specially in their Baradri, the appellant No.1 remained the member of different committee run and managed by the Government as well as the Secretary District Bar Association, Chunian, the detail of his membership of different committee and District Bar Association is given in para 2 of the plaint.
2. The respondent No.1 lodged an FIR No.222/2001 under Section 458/380/411/107/171 and 365 PPC against unknown culprits and subsequently the offence of 395 PPC was added in the FIR. The respondents with the malafide intention through a supplementary statement involved the appellants in the case referred to above. The appellants asserted that the respondents are very well aware about the character and reputation of the appellants as both the parties are the residents of the same village. The respondents can easily recognize the appellants if they were involved in the incident of dacoity. The appellants were investigated by the police and they were found innocent. After the appellants' discharge by the competent court of law, the respondents continued to get the appellants investigated by the Range Crimes Branch and DSP (CIA) Kasur but the appellants in every investigation were found innocent, that due to malafide and malice of the respondents the appellants' reputation was damaged, they suffered mental and health loss, the appellant No.3 could not complete his education, the appellants thus claimed damages as detailed in para 8 of the plaint of Rs.11,800,600/- jointly and severally from the respondents. The appellants however withdrew the suit against Muhammad Azeem defendant No.3 on 17.2.2009.
3. The respondents opposed the suit and claimed that they mentioned the name of appellants with the bonafide intention. The suit is barred by time and frivolous. The learned trial court, out of divergent pleadings of the parties, framed the following issues:- "ISSUES:
1. Whether the plaintiffs are entitled to recover an amount of Rs.1,18,00,600/- from defendants for their alleged malicious prosecution? OPP
2. Whether the plaintiffs have no cause of action against the defendants? OPD
3. Whether the suit is time barred? OPD
4. Whether the defendants are entitled to recover special compensatory costs from the plaintiffs U/S 35-A of CPC? OPD
5. Relief".
Both the parties adduced their respective evidence both verbal and documentary, the learned trial court vide judgment and decree dated 24.7.2010 dismissed the suit, hence the present appeal.
4. Learned counsel for appellants submits that impugned judgment is against law and facts available on record. The learned trial court has failed to appreciate the agony of the appellants which they suffered by attending three investigations before three investigation agencies. It is a proven fact on record that respondents with the malafide intention nominated the appellants in supplementary statement only to cause damage to the reputation of appellant No.1 who is an advocate by profession and human activist, the appellant No.1 lost his election due to wrong involvement in the fake case. The appellant No.1 due to fraudulent FIR developed heart disease and had undergone the heart surgery. Learned counsel adds that even after the arrest of real culprits and recovery of stolen articles the respondents continued to file applications against the appellants for their false involvement in the case. Learned counsel adds that all the three appellants thus suffered huge loses. Learned counsel has relied on Anwarzeb V. Mushtaq Ahmed (2014 CLD 1632), Dr. Anwar Zada & others V. Mst. Yasmeen & others (PLJ 2014 Peshawar 302) and Sufi Muhammad Ishaque V. The Metropolitan Corporation, Lahore through Mayor (PLD 1996 Supreme Court 737).
5. Learned counsel for respondents supports the impugned judgment and submits that appellants have failed to prove any alleged loss, hence the learned trial court has rightly dismissed the suit.
Learned counsel for respondents has relied on Hafiz Hakim Muhammad Fayaz V. Akbar Ali (2006 CLC 489) and United Bank Limited and 5 others V. Raja Ghulam Hussain and 4 others (1999 SCM R 734).
6. We have heard the learned counsel for the parties at length and gone through the record with their assistance.
7. The case of appellants is that they are respectable educated persons, the respondents with the malafide intention wrongly nominated the appellants, the culprits through supplementary statement. The appellants have produced the investigation Officer P.W-1, he deposed that appellants were nominated through supplementary statements, he investigated the allegations against the appellants and found that they are innocent and the Magistrate accepted his report under Section 173 Cr.P.C. In cross examination he deposed that incident of dacoity was found correct, the complainant has lodged FIR with bonafide intention, he denied that he wrongly come to the conclusion that appellants are innocent. Appellant No.1 appeared as P.W-2, he deposed that he is practicing lawyer from the last 13/14 years, he remained member of number of committees like District Khadmat Committee Kasur, District Land Privatization Committee, District Agriculture and irrigation Committee, District Consultation Council, District Food Stuff committee, Legal Advisor (Panel) United Bank Limited, Legal Advisor PTCL, General Secretary District Bar Association Kasur for the year 1993, he contested District Council Kasur election number of times, once he contested the election for member Provincial Assembly, the appellant No.2 is school teacher and is landlord, he belongs to a respectable family, appellant No.3 is student of Bachelor of Arts and is the son of a senior lawyer, they all are enjoying good reputation in the society, on 22 23 June 2001 an incident of dacoity took place in the house of respondent No.1, the respondent No.1 lodged FIR against unknown culprits with the police station Changa Manga under Section 458/380, 411/365, 170/171 PPC, subsequently offence under Section 395 PPC was also added, he and appellant No.2 are the residents of Mohallah Mohamdi Pura, hence the complainant and appellants know each other very closely and deeply since long, they are also the member of same Bradari. If the appellants were related in any maner with the dacoity incident, the respondent must have mentioned their names in the FIR. As per contents of the FIR number of people of the village have seen the dacoits when they were going back, the respondent No.1 with the collusion and connivance of respondents No.2 to 4 nominated the appellants in supplementary statements, the respondents in supplementary statements alleged that culprits committed dacoity on the instigation of appellant No.1, the appellant No.2 pointed out their house, appellant No.3 remain associated with the culprits, they could not recognize the appellant No.3 as he was wearing helmet, they recognized the appellant No.3 from his voice. The local police and other three agencies investigated the incident and every one found all the appellants innocent. The police arrested the culprits and recovered stolen articles. The Additional Sessions Judge confirmed the appellants' bail petitions on 15.9.2001, the appellants in connection of investigations appeared with their witnesses before the investigation officers at Changa Manga, Chunian, Lahore and Kasur, due to the malafide acts of the respondents the appellants suffered loss of reputation and their family remain disturbed, the appellants failed to pass his B.A examination. In these circumstances it was not possible for the appellant No.1 to continue with his profession, the appellant No.1 lost his election of Naib Nazim, due to the malafide and collusive acts of respondent developed heart disease and till today he is under the treatment of doctors, he has given the detail of loss suffered amounting to Rs.11,800,600/-. In cross examination he admitted that incident of dacoity took place in the house of respondents and they have lodged FIR with bonafide intention, before the incident of dacoity there was no civil litigation between the parties, however criminal litigation was going on between the parties. He admitted that he is not having receipts of expenses which he incurred, he is unable to give detail of his business loss, however due to the dishonest FIR he was unable to concentrate on his profession and he lost his entire business, he was not paying Income Tax before the above said incident. He denied the suggestion that during the investigation the respondents' stance was found correct.
Appellant No.2 appeared as P.W-3 and he deposed on the lines of P.W-2 and supported his statement. The dacoits are the relatives of respondents and their names were known to respondents, the respondents wrongly lodged FIR against the appellants only with the malafide intention to defame the appellants. Appellant No.3 appeared as P.W-4, he also supported the statements of P.W-2 and P.W-3. P.W-5 who is an advocate by profession appeared and deposed that both the parties are known to him and he supported the version of appellants. P.W-6 Sardar Muhammad Saddique Dogar is an advocate by profession, he also supported the appellants version and deposed that due to wrong FIR the appellant No.1 was humiliated in the estimation of public at large specially the lawyers' community.
8. Respondent No.1 appeared as D.W-1, he deposed that he lodged FIR of incident of dacoity in his house and has not nominated any one, he called "Khoji" they traced the foot prints of culprits up to metaled road, on their advise the tracer dogs were engaged, the tracer dogs went to the house of appellant No.1, when the incident took place the elections of Nazim were scheduled, appellant No.1 agreed to appear before "Punchait" after the elections are over, after the election were over they called appellant No.1 but he failed to attend the "Panchait" and then he lodged FIR against the appellants, he lodged FIR against the appellants with bonafide intention, his intention was not to humiliate and cause loss to the reputation of the appellant. In cross examination he admitted that appellant No.1 was contesting election of Nazim against Rana Abbas. It is correct that Rana Abbas has murdered his paternal brother. Probably he has not mentioned in the FIR that while leaving his house the culprits have threatened him if they will not compromise with the accused of murder, they will treat them badly, at that time the accused were convicted for the murder of his brother, he nominated the appellants after so many days of the incident, he is not aware of the names of culprits who threatened him, he is not aware about the name of "Khoji", police has not recorded the statement of "Khoji", he admits that for conducting investigations Riaz was filing applications on his behalf, Riaz and Azeem were attending the investigations on his behalf, he has not filed application for providing the tracer dogs, police has not mentioned the name of army man who brought the dogs, the respondents compromised with the accused of Rafaqat and the accused were acquitted, the only accused of murder was Rana Ibad's cousin, Rana Shaukat Ali lost the election. It is correct that in murder case against them Rana Shaukat Ali helped them. It is incorrect that they involved the appellants on the asking of Rana Ibbad. It is not correct that Rana Ibbad and his brother remain associated in the investigations. It is correct that appellant No.1 is an advocate from the last 10/11 years. It is correct that appellants were found innocent in all investigations. It is correct that he filed application before DSP Chunian, he is not aware whether appellants were exonerated and they again filed application against appellants before the Crime Branch for change of investigation. He is not aware whether he filed application to CIA Kasur for change of investigation, he is not aware the appellants were discharged and acquitted by the court, however they were released from dacoity case. Rana Javaid appeared as D.W-2, he deposed that Fayyaz Ahmed respondent involved appellants with malafide intention. In cross examination he admitted that he knows appellant No.1 since long, he is thorough gentleman, he contested the Nazim and MPA's election, he remained member of number of committees. It is correct that appellant No.1 contested election against Rana Ibad Ali Khan, Rana Wahid is the cousin brother of Rana Ibbad. Rana Wahid was convicted in the murder of respondent No.1's brother. It is correct that dacoits threatened respondent No.1 to compromise with Rana Wahid, otherwise they will murder him. Liaqat is the father of Wahid, Zahid and Shahid are the brothers of wahid. It is correct that Rana Ibad helped Fayyaz Ahmed, he continued to appear with respondent No.1 in investigations. He continued to appear against appellants. Fayyaz Ahmed, etc helped Rana Ibad in election, they worked hard for his success, they propagated against Rana Shaukat about the registration of case, Rana Shaukat lost election due to the said reason. The appellants were found innocent in all investigations. The witness in cross examination specifically admitted as under:- {{URUD TEXT}} The respondents No.1 and 2 cross examined D.W-2, he admitted that he filed written statement, but his lawyer has not read over the same to him. Written statement bears his signatures. He denied the contents of written statement, he deposed as under:- {{URUD TEXT}} He admitted that he signed power of attorney in favour of Ahmed Yar Qadri Advocate, now he has changed his counsel, again admitted that:- {{URUD TEXT}}
9. From the pleadings and evidence brought on record the incident of dacoity is a proven fact, it is also a fact that respondent No.1 lodged FIR against unknown persons, the appellants were nominated as accused through the supplementary statement, D.W-1 in his statement explained the reason for mentioning the appellants' name subsequent to lodging of FIR, D.W-1 deposed that when the incident of dacoity occurred he arranged the foot tracer "Khoji" and on the advise of those "Khojis" the sniffer dogs were arranged from Army, the sniffer dogs sat in the house of appellant No.1, the respondents asked the appellants to appear before the "Punchait" the appellants were busy in elections they promised to appear before "Punchait" after election and when the appellants failed to appear before the "Punchait" and the respondents having no other option except to nominate the appellants their accused in supplementary statement. It is an admitted fact that "Khoji" nor the owner of sniffer dogs who completed the alleged search operation and any member of Punchait was produced, the D.W-1 in his statement admitted that he has no proof with him for requesting the Army personal to provide the assistance of sniffer dogs, he also admitted that he is not aware about the name of any "Khoji". It is also proved on record that there was an enmity between the parties. D.W-2 in his statement admitted as under:- {{URUD TEXT}} The respondents No.1 and 2 also cross examined the D.W-2 but the said witness remained firm on his statement.
10. The respondents' case is that they came to know through "Khoji" and sniffer dogs that the appellants are the accused of dacoity and then they through supplementary statement nominated the appellants. The supplementary statement is available on record as Mark/P-1, although the said document is not exhibited but it is an admitted document between the parties being the part of FIR. The supplementary statement did not find mentioned the story of "Khoji" and sniffer dogs as narrated by the respondents in their statements. What the respondent No.1 stated in supplementary statement, is reproduced as under:- {{URUD TEXT}}
11. From the above narrated facts it is established on record that the act of respondents to involve the appellants in the incident of dacoity was malafide. The charge against the appellants was wrong to the knowledge of the complainant, he misled the police by brining engineered witnesses in support of his assertion, the complainant tried to influence the police to sent the innocent appellants to jail. It is a settled law that if the following elements are available the court can grant damages for malicious prosecution:-
(a) The prosecution of the plaintiff by the defendant.
(b) There must be a want of reasonable and probable cause for that prosecution.
(c) The defendant must have acted maliciously i.e with improbable motive and not to further the ends of justice.
(d) The prosecution must have ended in favour of the person proceeded against.
(e) It must have caused damage to the party proceeded against.
The Hon'ble Supreme Court of Pakistan defined the "Reasonable and Probable cause" in Niaz and others case supra as under:-
(i) "The maxim "The reasonable and probable cause" means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person charged was probably guilty of crime imputed. See (1881) 8 QBD 167 Hicks v. Faulkner. It is also a settled principle of law that if reasonable and probable cause is established, then question of malice becomes irrelevant as observed by Denning L.J. in Tempest v. Snowden (1952) 1 K.B. 130".
Learned trial court has dismissed the suit relying on the statement of P.Ws when they admitted that the act of registration of FIR was bonafide, the appellants' statement is correct as the appellants were not nominated in the FIR so all the P.Ws have rightly deposed that the act of registration of FIR was bonafide as an incident took place in the respondent's house. In fact the appellants' grievance started when the respondents nominated the appellants through supplementary statement, the respondents' explanation why they named appellants in supplementary statement was proved incorrect from the statement of D.W-2 and record, it is proved that the culprits were the relatives of convicted person Rana Wahid and they wanted a compromise between the respondents and Rana Wahid. The said facts were in the knowledge of respondents but they suppress these facts and lodged wrong FIR against the appellants, hence the malice on the part of respondents is proved.
12. The argument of learned counsel for respondents is that discharge of accused by the Magistrate is not equated with the acquittal of accused, hence suit for damages for malicious prosecution is not maintainable. In the present case the appellants were discharged after a long investigations, after registration of case all the appellants procured pre-arrest bail from the court and they remain under threat of arrest in case of withdrawal of concession of bail by the court.
13. In Pandit Gaya Parshad Tewari V. Sardar Bhagat Singh and another (Privy Council, 1908 (35) L.R.- I.A. 189), it is ruled as under:- "In India the police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant does not do beyond giving what he believes to be correct information to the police, and the police, without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complaint if he misleads the police by brining suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him."
14. The Privy Council again in AIR 1947 PC 108 examined the issue of proceedings of malicious prosecution and held as under:- "The action for damages for malicious prosecution is part of the common law of England, administered by the High Court at Calcutta under its letter patent. The foundation of action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt C. J. in 1 Ld. Raym. 374 that damages might be claimed in such an action under three heads, (1) damage to the person (2) damage to property, and (3) damage to reputation, and that rule has prevailed ever since. That the word "prosecution" in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company: (1883) 11 Q.B.D 674. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen L. J. in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant' reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage and in such a case damage to reputation will be presumed".
15. In Abdul Majeed Khan V. Tawseen Abdul Haleem and others (2012 CLD 6) the Hon'ble Supreme Court of Pakistan has held as under:- "20. Where the claimant has been subjected to a criminal prosecution, as a consequence of which he loses or risks of losing his liberty and/or his reputation, a remedy in the tort of malicious prosecution will lie. The institution of a civil action should exceptionally, results in liability under tort, when the claimant loses the suit, the defendant's reputation is restored and he recovers his cost spent on defending the action. However, for malicious proceedings in bankruptcy and winding up, which may wreck the claimant's business, destroy confidence in his competence and integrity and in his company's goodwill, a remedy in the Tort will lie.
21. It is well-known that a person who is maliciously prosecuted on a criminal charge can sue in tort for damages if the prosecution ends in his acquittal and the prosecution was malicious in the sense that it was without any reasonable cause. To ground a claim for malicious prosecution a plaintiff must prove (1) that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause; and (4) that it was malicious."
16. In another case Niaz and others V. Abdul Sattar and others (PLD 2006 Supreme Court 432) the Hon'ble Supreme Court of Pakistan has held as under:-
17. "9. By Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, land, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 14 of the Constitution also guarantees the dignity of man and subject to law, the privacy of home. In the context of the Constitution, it is no more necessary to hedge in an action for damages for malicious prosecution by the condition that the action was an abuse of the `process of the Court". It will in our opinion be more in consonance with the genesis of the Constitution, Articles 4 and 14 in particular, to say that the foundation of the action for damages for malicious prosecution lies, not in the abuse of the process of Court, but in the abuse in the process of law. For, if we bear in mind the ground realities of life existing in our country, it should appear plainly that proceedings before the police afford a stronger ground for an action for malicious prosecution than proceedings in a Court of law, for it is an unfortunate fact that, as things are, human dignity suffers or is likely to suffer more at the hands of the police than in a Court of law. One of the modes to achieve this goal is to file a suit for damages against the offenders by the aggrieved persons. It is the duty of the members of the Bar Association and Bar Council to educate the people and to file suits for damages against the offenders apart from the criminal proceedings.
10. We have also re-examined the evidence in the interest of justice and fairplay. We are of the view that both the courts below were justified to award nominal damages to the petitioners. It is a high time to put the nation on a right path to promote the law of tort. According to us in case citizens and the courts are conscious to save the nation from the agony of telling lies or involving innocent persons in criminal cases, then the only solution to stop this frivolous litigation for the purpose of taking revenge from the other side is to file suits for damages as and when the competent forum has declared the accused persons as innocent acquitted/discharged by the competent court so that prosecution must lodge genuine cases".
17. Now the question is whether the appellants have proved the loss claimed or not? The appellant No.1 has deposed that he incurred huge expenses in attending the investigations. All the three appellants secured bail and incurred legal expenses. D.W-2 admits that appellant No.1 lost election due to the registration of FIR against him. P.W-6 and P.W-7 have deposed that they are the member of law fraternity and due to registration of false case against appellant No.1 he was humiliated in District Bar Chunian. The appellant No.1 further deposed that due to wrong involvement in the case he was unable to do his business i.e Advocacy and lost his clients, he also suffered a heart attack and undergone a heart surgery, however he has not given the separate details of each loss. The Hon'ble Supreme Court of Pakistan in Abdul Majeed Khan case supra, in these circumstances, has held as under:- `It is, however, correct that the petitioner has failed to quantify the damages claimed by him as required under the law. This does not mean that the petitioner was not entitled to the grant of general damages under the rule of thumb on the face of the material brought on record by him during trial".
The Court in these circumstances of the case has the powers to grant general damages to plaintiffs/appellants keeping in view of the pleadings and evidence brought on record, we thus grant Rs.10,00,000/- the compensation/ damages to appellant No.1, the appellant No.2 and 3 have not brought any evidence on record, hence the appeal to their extent is dismissed. The appeal of appellant No.1 is allowed and appellant No.1's suit is decreed against respondents No.1, 2 & 4 with costs.