SYED ARSHAD ALI, J. This judgment shall dispose of the instant civil revision as well as the connected civil revision bearing No. 597-M/201 1 titled "Nawab Sher and another v. Said Amin" because in both the cases resolution of a common question of law' is involved.
2. Essential facts of the case are that on 31.03.2010 the present petitioners had filed two suits for recovery of compensation on account of malicious prosecution. Suit No. 28/1 was filed against Said Amin whereas suit No. 29/1 was filed against Ismail son of Said Amin.
3. On being noticed, both the defendants contested the suits in their written statements. From divergent pleadings of the parties, the learned trial Court had framed issues and allowed the parties an opportunity to lead their respective evidence. On closure of the evidence, the learned trial Court vide separate judgment and decree dated 10.08.201 1 had partially allowed both the suits and passed decree for recovery of Rs.6,50,000/- against the respondents/defendants.
4. Both the defendants had challenged the said separate judgments and decrees of the trial Court through two different civil appeals before the learned appellate Court and the learned appeal Court vide impugned judgments and decrees dated 12.10.201 1 had allow ed both the appeals and consequently suits of the plaintif fs/petitioners were dismissed. Hence, the present petitions.
5. Arguments heard and record of the case was perused with the able assistance of learned counsel for the parties.
6. It is evident from record that Ismail who is respondent in C.R. No. 595-M of 2011 had charged one Jehanzeb for his abduction through FIR No. 196 on 22.07.2009. In the said FIR, the present petitioners Nawab Sher and Shoaib were assigned the role of abettors/ conspirators.
7. In FIR No. 196 Nawab Sher was arrested, however , he was released on 31.07 .2009, whereas petitioner No. 2 Shoaib had applied to the Court of learned Additional Sessions Judge for his bail before arrest which was dismissed, however , on 24.08.2009 he was released on bail. After conclusion of investigation, complete challan was submitted in the Court of Additional Sessions Judge/Izafi Zila Qazi Wari on 02.09.201 1, Ex. PW1/2. In the said proceedings Jehanzeb was avoiding his arrest and as such he was proceeded under section 204, P.P.C. However , on 18.01.2010 Ismail, the complainant of the said case and respondent in the present petition appeared before the Court and recorded his statement that he had no objection on the acquittal of the present petitioners. Resultantly , the trial Court had accepted the application of the present petitioners for their acquittal which they had filed under section 265-K, Cr.P.C. vide order dated 18.01.2010. It was specifically mentioned in the said order Ex. PW-1/3 that the complainant had raised no objection on their acquittal.
8. Likewise, through FIR No. 197 Said Amin who is respondent in C.R. No. 597-M of 2011 had charged Jehanzeb and Umar Zeb for abduction of his grandson Bilal and in the said case the present petitioners were given, the role of abettors/conspirators. In this case too, the present petitioners were arrested, however , later they were released on bail. On completion of investigation, complete challan was submitted before the Court of Additional Sessions Judge/Izafi Zila Qazi Wari on 02.11.2009, Ex. PW-1/2. On 18.01.2010 Said Amin who was complainant in the case FIR No. 197 and respondent in the connected petition appeared before the Court and recorded his statement that he had charged the present petitioners for abduction of his grandson, however , if the Court acquits them from the charges then he will have no objection. On the basis of the statement of the complainant, the present petitioners were acquitted from the charges by the trial Court vide order dated 18.01.2010.
9. Thus, on the basis of the said acquittal in both the criminal cases, the present petitioners had filed the above- referred two suits. It was averred in the plaints that in view of the accusations against them in the afore-referred FIRs they were arrested and faced prosecution which had resulted into not only loss to their reputations but they had also sustained financial loss.
10. Against that, the claim of the respondents/defendants in their written statements was that involvement of the present petitioners in the criminal cases was based on good reasons, however , during the trial since the matter was patched up between the parties by the elders, therefore, they had recorded statements before the Court stating therein that they had no objection on the acquittal of the present petitioners and resultantly they were acquitted from the charges.
11. At the trial both the parties had produced their evidence and during the said evidence the plaintif fs had produced the record of the criminal cases as well as the evidence regarding his association with the business of construction. Similarly , the defendants had produced evidence regarding the compromise between the parties in the matter which had resulted into the acquittal of the present petitioners. However , from the evidence which was led before the trial Court it is an admitted fact that the present petitioners were assigned the role of abettors/ conspirators for abduction of Ismail son of Muhammad Amin and his grandson Bilal, whereas the principal accused Jehanzeb is also the relative of the prese nt petitioners. It is also an admitted position that the present petitioners were acquitted pursuant to the statements recorded by the complainants Ismail and Muhammad Amin before the trial Court wherein they had stated that they had no objection on the acquittal of the present petitioners from the charges.
12. Thus, the question arises that whether present petitioners had a valid case for award of compensation on account of their acquittal from the criminal charges which was initiated by the respondents against them. It is by now settled law that every criminal prosecution which ends in the acquittal of accused will not per-se entitles the accused to file a suit for compensation. Award of compensation for criminal prosecution in our country is not backed by any statutory law or instrument. The tort of malicious prosecution has its origins in the English Common Law. Successful proceedings initiated under this law required that the original proceedings must have been malicious and without cause. While having a glance on the judge made law at England, one can infer that out-right judicial acceptance of this law was not very forthcoming initially . This is because of the fear that the right of individuals who have been wronged to seek legal redress may be undermined if the law of malicious prosecution is employed too zealously and too liberally . Chief Justice Holt in the English case of Johnson and wife v. Browning [(1704), 6 Mod. 216], stated that 'though this action [malicious prosecution] will lie, yet it ought not to be favoured, but managed with great caution. ' The famous English Jurist and Judge, William Blackstone justified this repugnance to the law of malicious prosecution by holding; "it would be a very great discouragement to the public justice of the Kingdom if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried." And so it was only in blatantly frivolous cases where Judges would entertain suits for malicious prosecution. This view continued well into the 19th century until perceptions began to change owing to a desire to make the criminal justice system more defendant-oriented and to that end, more 'merciful' . Today , the tort of malicious prosecution is an important deterrent which ensures protection to those who have been falsely and wrongly implicated/involved in court proceedings.
13. The importance of the need for a balance between the right of the aggrieved litigant to move the Court and the tort of malicious prosecution is not lost on the Courts in Pakistan. In case titled Anwarzeb v. Mushtaq Ahmed [2015 MLD 601 Peshawar] this Court highlighted this need in the following terms:- "Every person in the society had a right to set in motion Government and Judicial machinery for protection of his rights but said person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass by unjustifiable litigation".
The honourable Lahore High Court also observed in Ghulam Hussain and another v. Muhammad Rafique [2015 MLD 1583 Lahore] that:- "said tort (malicious prosecution) balanced the competing 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 was an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge."
14. In order to comprehend the concept of malicious prosecution, it would be appropriate to go behind its meaning and definition. The term 'malicious prosecution' is defined in Black's Law Dictionary as "The institution of a criminal or civil proceeding for an improper purpose and without prob able cause." Ballentine's Law Dictionary defines it as, "The institution of any action or proceeding, either civil or criminal, against another maliciously and without probable cause" . In Muhammad Yousaf v. Abdul Qayyum [PLD 2016 SC 478], the august Supreme Court of Pakistan defined malicious prosecution as "a tort which provides redress to those who have been prosecuted 'without reasonable cause' and with 'malice'....."
In the case titled Mehrban v. Ghulam. Hassan [2016 CLC 1585 Peshawar (D.I. Khan Bench)], the Peshawar High Court defined malicious prosecution as being:-- "an action instituted with intention of injuring defendant and without probable cause. The meaning 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 where 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."
The Sindh High Court also defined the said term in the case titled Israr Ali v. Mst. Ahmedi Begum etc. [1990 MLD 1834 Karachi] as "A malicious prosecution may thus be defined as one that is begun in malice, without probable cause to believe it can succeed, and finally ends in failure".
15. Now moving on to the issue that what constitute the essential elements for malicious prosecution. The same as per Black's Law Dictionary are "(I) the initiation or continuation of lawsui t (2) lack of probable cause for the lawsuit's initiation; (3) malice; and (4) favorable termination of the original lawsuit ." The requisite elements for an action for malicious prosecution in England (laid down by Viscount Simonds in the case of "Glinski v. Meiver [1962 A.C. 726, at p. 742]" and in America as laid down in Evans v. Alabama Professional Health Consultants, Inc. 474 So.2d 86.) are substantially the same . In both England and America, for a plaintif f to succeed in a claim for malicious prosecution, these essential ingredients- which are universal in their nature - must be present contemporaneously . In India also these very elements were affirmed by the Patna High Court in Nagendra Kumar v. Etwari Sahu [Citation: AIR 1958 Pat. 329]. As far as our own jurisdiction is concerned, in cases titled Niaz etc. v. Abdul Sattar etc. [PLD 2006 SC 432], Abdul Majeed Khan v. Tawseen Abdul Haleem etc. [SC 2012 CLD 6], Rana Shaukat Ali Khan etc. v. Fayyaz Ahmad etc. [2017 MLD 120 Lahore] , Muhammad Yousaf v. Abdul Qayyum [supra], Marine Management Company v. Government of Pakistan [PLD 2000 Kar 215], Hussain Gul v. Soorat Shah and others [2014 MLD 1008 Peshawar] and Muhammad Akram v. Mst. Farman Bi [PLD 1990 Supreme Court 28], our superior Courts have enumerated similar conditions that have to exist for an action for malicious prosecution to be successful. The first two of these conditions are required for the issue of maintainability whereas the remaining three are to be proved; furthermore, the said conditions must exist contemporaneously (rel: Muhammad Saeed v . Jan Muhammad [2006 YLR 2201 Lahore High Court] . These conditions are as follows: i) That Plaintiff was prosecuted by the Defendant; ii) That the prosecution ended in favour of the Plaintiff. iii) That the Defendant acted without reasonable and probable cause; iv) That the Defendant was actuated by malice (with improbable motive and not to further the ends of justice); and v) That the proceedings had interfered with the Plaintiff's liberty and had also affected his reputation and the Plaintiff had suffered damages.
In addition, an action for malicious prosecution is generally available as a remedy to one who has been wrongly involved/implicated in a criminal prosecution. However , an abuse of civil proceedings may also afford the right to a Respondent to bring an action for malicious prosecution. Reliance is placed on cases titled Abdul Majeed Khan v.
Tawseen Abdul Haleem etc. [supra], Gregory v. Portsmouth Council (2001) 1 ALL ER 560 and Dr. Abdul Qadir Akhund v . Shahila Perveen [2017 MLD 666 Sindh].
16. Moving on to the first requirement that is the initiation of the criminal prosecution. Black's Law Dictionary defines the term 'prosecution' as "a criminal proceeding in which an accused person is tried". In America, a proceeding must have been actually commenced against a person before he has a cause of action for wrongful or malicious prosecution (rel: Pawn v. Rose (Dist Col App) 205 A2d 609; Blenn v. Morrill, 90 NH 109, 5 A2d 42); a mere threat to prosecute is not actionable (rel: McDonald v. Carper 252 NC 29, 112 SE2d 741), nor is an unsuccessful attempt to secure the institution of proceedings, however malicious and unfounded (rel: Melvin v.
Pence 76 App DC 154, 130 F2d 423, 143 ALR 149). It was laid out in the case of Rosario v. Amalgamated Ladies'
Garment Cutters' Union [Local 10, I.L.G.W .U., C.A.N.Y ., 605 F2d 1228, certiorari denied 100 S.Ct. 1853, 446 U.S. 919, 64 L.Ed.2d 273, appeal after remand 749 F .2d 1000] that:- "one of the essential elements of an actio n for malicious prosecution is the prior Commencement or continuance of an original criminal judicial proceeding."
As far as civil proceedings are concerned, it was laid out in the case of National Surety Co. v. Page [C.C.A Va, 58 F.2d 145, rehearing denied 59 F.2d 370] that, "where the other essential elements are present, an action may be maintained for the malicious institu tion or wrongful initiation of a civil action or proceeding" . Moreover , an action may lie not only for the commencement of the original proceeding but also for its continuation (Rel: Laney v . Glidden Co. , 194 So. 849, 239, Ala. 396) .
17. This court observed in the case titled Mehrban v . Ghulam Hassan [supra] 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"
In the case of Niaz etc. v. Abdul Sattar etc. [supra], the august Supreme Court of Pakistan held that a prosecution may not be entirely mala fide, but the continuance of such prosecution, after it has been discovered that the facts upon which it was based were not true, may give rise to a claim for damages for malicious prosecution. In the case of Dr. Abdul Qadir Akhund v . Shahila Perveen [supra] the Sindh High Court held that the: "filing of an application/ complaint did not earn right of filing' a suit for damages because it did not fulfill the term 'prosecution' which necessarily require commencement and carrying out of any action or scheme."
In the case of Summit Bank Ltd. v. Mohammad Ramzan [2016 MLD 139 Islamabad], the Islamabad High Court held that: "the mere filing of a complaint before the police authorities on the basis of a dishonoured cheque or outstanding finance was not a "legal wrong".
18. Further moving on to the ingredient as to whether the initiation of the prosecution was with a reasonable and probable cause. In England, the term 'reasonable and probable cause', has been defined in the case of Hicks v.
Faulkner (1881) 8 OBD 167 wherein Hawkins J. described it as being: "an honest belief in the guilt of accused based upon full conviction, based on reaso nable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man to come to the conclusion that the person charged was probably guilty of crime imputed."
The House of Lords approved this definition in Herniman v. Smith [(1938) A.C. 305]. This definition has also been adopted by Jordan CJ of the Supreme Court of New South Wales in Mitchell v. John Heine & Sons Ltd., Supreme Court of New South Wales, 1938, 38 N.S.W .S.R. 466. In the more recent English case titled Willers v. Joyce and another [2016 SCMR 184 1] Supreme Court of UK], the UK Supreme Court observed, by a majority view , that: "In order to have reasonable and probable cause, the defendant did not have to believe that the proceedings would succeed; it was enough that, on the material on which he acted, there was a proper case to lay before the court."
Finally , the said term has been further defined in Salmond on the Law of T orts, 9th Edition, page 658-659 as "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."
The Courts in India have also adopted this very definition referred to above (relianc e: Abdul Shakur v. Lipton & Co., AIR 1924 Lah. 1; Vogiozis v. Pappa Demisrian 20 I.C. 180). Furthermore, in the case of Province of East Bengal and others v. S.M. Faruque and others [PLD 1959 Dacca 268], the term reasonable and probable cause was defined as follows: "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 agains t 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 cause" means a genuine belief based on reasonable grounds that the proceedings are justified."
19. The august Supreme Court has, in Niaz etc. v. Abdul Sattar etc. [supra], adopted the definition of the subject term as laid out in Hicks v, Faulkner [supra]. Explanation regarding the subject term has also been given in Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir [1984 CLC 325] in the following terms: "Probable cause means the Bona fide prosecution rests on circumstances sufficiently strong and convincing to warrant a man of ordinary prudence to entertain an impression and belief that person accused was guilty of offence with which he was charged."
It was further held in Walayat Khan v . Abdul Usman [1990 CLC 37 ] that: "Let it be borne in mind that if a person initiates criminal proceedings against another, in a matter which, from its very nature, he reasonably believes as a man of ordinary prudence, does not constitute a criminal offence and rests exclusively with a Civil Court to adjudicate upon; such action of his shall be deemed as prosecution without reasonable and probable cause and as such malicious in nature".
In the case of Muhammad Aslam v. Muhammad Ibrahim [2000 CLC 154] it was held that the circumstances between the parties are to be taken into consideration in order to determine the state of mind of the prosecutor and the defendant. However , jealousy and grudges held by defendants against plaintif fs will not amount to reasonable cause (rel: Nayeb Ali Dafadar v . Abdul Ghani alias Gutu Mia (PLD 1969 D 985 ]).
20. Elaborating the next and striking ingredient for the action for compensation is that the criminal prosecution should have been initiated with malice. Black's Law Dictionary has defined the term 'malice' as wrongful intention.
Hence, any act done with wrongful intention or recklessness is malicious. As per Salmond, Jurisprudence , at p. 374 (1966), any act done with one of these mental elements is, in the language, of law, malicious. Per Baron Parke, Brown v. Hawkes (1891) 2 Q.B. 718, it was defined as some other motive than a desire to bring to justice a person whom he honestly believes to be guilty . In the more recent English case titled Willers v. Joyce and another [supra], the UK Supreme Court observed, by a majority view , that:- "Malice was an additional requirement; it required the claimant to prove-that the defendant deliberately misused the process of the court --- Most obvious case was where the claimant could prove that the defendant brought the proceedings in the knowledge that they were without foundation, however there may be other instances of abuse -- For example, a person may be indifferent whether the allegation was supportable and may bring the proceedings, not for the bona fide purpose of trying that issue, but to secure some extraneous benefit to which he had no colour of a right --Critical feature which had to be proved was that the proceedings instituted by the defendant were not a bona fide use of the court's process."
21. In America, the Courts have recognized 'malice' as an essential element and have called it the "gist" of an action for malicious prosecution (rel: Adams v. Home Owners' Loan Corporation C.C.A.Neb., 107 F.2d 139).
The Courts in America have observed that since malice is a mental state, which must be proven, it is a fact which must be found by the finder of fact as it cannot be established by legal presumption (rel: Owens v. Kroger Co., 430 So.2d 843, Allstate Ins. Co. Moulton, 464 So.2d 507 and Freezer v. Miller , 176 S.E. 159, 163 Va. 180).
Furthermore, it has been observed that a prosecution is found to have been brought maliciously where it was brought with an improper or sinister purpose or in reckless disregard of the rights of others (rel: Hickland v. Endee, D.C.N.Y ., 574 F.Supp. 770, affirmed 732 F.2d 142 and Shepard v. Byrd, D.C.Ga., 581 F.Supp. 1374) . Finally , in Brodrib v. Doberstein, 140 A. 483, 107 Conn. 294, it was observed that as a general rule, the use of criminal process for private purpose also shows the existence of malice.
22. The Indian Courts explain 'malice' as an improper or indirect motive, i.e. some motive other than a desire to vindicate public justice or private right (rel: Jamnadas v. Chunni Lal (1920) I.L.R. 45 Boni. 227; Imperial Tobacco Co. v. Bonnon, AIR 1928 Cal. 1; Mushoorappa v. Hanumanthappa, AIR 1947 Mad. 236; Laxmichand v . Union of India, AIR 1955 Nag. 265).
23. In our own jurisdiction the Sindh High Court in Israr Ali v. Mst. Ahmedi Begum [supra] relied on the Indian case titled Babu Sumat Prasad v . Ram Sarup Sastry [AIR 1946 All. 204] wherein it was defined in the following terms: "Malice means the presence of some improper and wrongful motive that is to say, some motive other than desire to bring to justice a person whom the prosecutor honestly believes to be guilty".
In case titled Afroz Qureshi v. Muhammad Ikram Siddiqui [1995 CLC 735 Karachi], the term malice was defined as the "working of improper and indirect motives, which plaintif f must prove affirmative ly" . In case titled Abdul Rauf v.
Abdul Razzak [PLD 1994 SC 476], the term 'malicious' has been defined by the Supreme Court of Pakistan in the following terms: "The term 'malicious' in a prosecution of this nature of present suit 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 just. It should, therefore, be shown that the prosecutor was not actuated by the desire but by his personal feelings."
The Sindh High Court followed this definition in case titled Marine Management Company v. Government of Pakistan [supra]. In the more recent case of Muhammad Yousaf v. Abdul Qayyum [supra], the Supreme Court of Pakistan interestingly held that "malice is a state of mind and can be inferred from the circumstantial evidence ". In the said case the complainant had not initially nominated the accused in the original FIR but added the latter's name in the FIR at a later point in time after having received information from a third-party , who, although perfectly able to attend Court and testify , was not produced or called as a witness by the complainant.
24. The Plaintif f who bring the claim for compensation on account of malicious prosecution must also establish the connection between the reasonable and probable cause and the malice. In Willers v. Joyce and another [supra], the UK Supreme Court held that "for purposes of bringing a claim for malicious prosecution the requirements of "absence of reasonable and probable cause" and "malice" were separate requirements although they may be entwined ." However , be that as it may, the proof of absence of 'reasonable and probable cause' must co-exist alongside 'malice'. In Willers v. Joyce and another [supra], Lord Toulson, JSC, referred to Lord Devlin's opinion in Glinski v . McIver [1962] AC 726 at 765, wherein the latter had observed: "it is commonplace that in order to succeed in an action for malicious prosecution the plaintiff must prove both that the defendant was activated by malice and that he had no reasonable and probable cause for prosecuting."
25. The august Supreme Court in Niaz etc. v. Abdul Sattar etc. [supra] placed reliance on the English case of Tempest v. Snowden 1952 I K.B. 130 wherein Lord Denning L.J. observed that "if reasonable and probable cause is established, then question of malice becomes irrelevant ." It was held in the case of Abdur Rashid v.
State Bank of Pakistan and another [PLD 1970 Kar. 344] that, "Even though a prosecutor is actuated by the most express malice, nevertheless he is not liable so long as there was reaso nable and probable cause for the prosecution. " This naturally means that the person bringing an action for malicious prosecution has a heavy burden to discharge, as was observed in Willers v. Joyce and another [supra]. Mere fact that a Plaintif f was prosecuted and acquitted will not suffice for the purposes of bringing an action for malicious prosecution so long as he also proves the absence of reasonable and probable cause and malice (rel: Fazale Rahim v. Rab Nawaz [1999 SCMR 700 ]).
26. The burden to prove malicious prosecution (i.e. want of probable cause and malice) is on the Plaintif f (see: Ishtiaq Ahmed v. Raees Ahmed [1991 CLC 1114]). As far as malicious prosecutions arising out of civil suits are concerned, "the plaintif f has to allege false and malicious prosecution of the suit, as well as sufferance of special damages, as a result thereof" (rel: Muhammad Ashraf v . Inayat Ali [1993 CLC 576 ]).
27. For an action for malicious prosecution to succeed, the Plaintif f must prove that he has suffered damages/loss as a result of wrongful prosecution. In the English case of Savile v. Robert [(1698) 1 Ld. Raym. 374], Holt C.J. referred to three types of damages which a Plaintif f might suffer because of a malicious prosecution and these were (a) the fair name of the person involved (i.e. reputation); (b) the safety and liberty of the person; and (c) the security of his property by reason of the fact that he has to spend money in getting himself acquitted. The majority of the Indian Courts are in agreement with Savile v. Robert (supra) except for the Indian case of Ali Mohammed v.
Zakir Ali [AIR 1931 All. 665] wherein the Allahabad High Court recognized that damages were only to person and property - not reputation.
28. The term 'damages' was defined in the case of Ismat Ullah Cheema v. Sarfaraz Ahmad and others [PLD 2006 L 503] as: "compensation to vindicate the stand of the aggrieved person and to hold that there was no substance in the allegations leveled against a person ."
The Courts in Pakistan also recognize 'damages' as an essential condition, which has to be satisfied for an action for malicious prosecution to succeed. In the case of Summit Bank Ltd. v. Mohammad Ramzan [supra], the Plaintif f had filed a suit for damages for an allegedly wrongful complaint filed by the Defend ant-bank against him before the police authorities on the account of a dishonoured cheque. The said suit was decreed by the trial Court below in favour of the Plaintif f, thereby awarding him damages. However , the Islamabad High Court found that nothing existed on the record to establish any wrongful act committed by the Defendant-bank or that on account of the acts of the Defendant; some loss was occasioned by the Plaintif f. The said Court further held that the mere filing of a complaint before the police authorities on the basis of a dishonored cheque or outstanding finance was not a "legal wrong" and nothing existed on the record which showed any loss was suffered by the Plaintif f which entitled him to damages. The Islamabad High Court, while setting aside the decree of the trial Court below , found that the "present case was therefore neither based on malicious prosecution nor any wrongful act committed by defendant". HOWEVER , it must be noted that while it is essential for the Plaintif f to establish damages suffered by him, the "fact that exact amount was not determinable could not be reason for dismissal of a suit for malicious prosecution ." (Rel: Muhammad Akram v . Farman Bi [PLD 1990 SC 28 ]).
29. In the case of Anwarzeb v. Mushtaq Ahmed [supra] the Plaintif f had filed a suit for damages on the ground that his reputation had suffered due to the Defendant's action of lodging an application with the DPO by levelling frivolous allegations against him. However , the trial Court dismissed the suit due to the non-mentioning and proving of quantum of damages. The Plaintif f in the said case had not specified damage s and, therefore, the Peshawar High Court observed that general damage s had to be assessed and defined the term "General damages" as being those damages which "which law would imply in every violation of a legal right" and that "General damages would not be needed to be proved by strict evidence as same would arise by inference of law even though no actual pecuniary loss had been or could be shown ." As far as quantifying damages in case s where the injury is to the reputation of the Plaintif f, the Peshawar High Court held that: "loss arising out of injury to reputation of a person could not be compensated in terms of money but for said reason alone courts should not decline to grant compensation --- Just, fair and reasonable compensation was to be assessed in such cases and same was to be granted to the victim(s). No yardstick or definite principle for assessing damages existed in such cases and assessment of fair compensation was difficult --Court had discretion in such cases which would depend on facts of each case and how far society would deem a fair sum determining the amount to be awarded to a person who had suffered such damages".
30. Reverting to the facts of the present case while visualizing the claim of the plaintif fs for compensation on account of malicious prosecution I note that in both the FIRs the present petitioners were given specific role for abduction of Ismail son of Muhammad Amin and his grandson Bilal. In the investigation they were found guilty of the offence, however , at the trial they were acquitted on the basis of the concessional statements of the complainants. It does not discern from the record of the criminal cases as well as from the evidence available on the file that the prosecution initiated by the respondents was without any probable cause or was based on malice.
31. Thus, in view of the law referred above, the present petitioners could not establish their case for award of compensation, hence, the impugned judgment and decree of the appellate Court in both the appeals is unexceptionable, which do not call for interference. Resultantly , both these connected petitions are dismissed.