ATIR MAHMOOD, J.---Brief facts of the case are that Sharif Peeran Ditta, plaintif f (hereinafte r as the "respondent ") filed a suit for recovery of Rs.25,000/-as damages on account of malicious prosecution against Arif Irfan, defendant (hereinafter as the "petitioner ") before the learned trial court. Suit was contested by the petitioner by filing written statement. The learned trial court framed the following issues out of the divergent pleadings of the parties:
1. Whether the plaintif f is entitled to recover Rs.25,000/- from the defendant? OPP
2. Whether the suit is liable to be dismissed in view of the preliminary objection raised by the defendant? OPD
3. Relief.
After framing of issues, the parties were directed to produce evidence but thereafter , the petitioner did not enter his appearance before the Court, ' therefore, he was proceeded against ex parte and ex parte evidence on behalf of respondent was called for which was adduced accordingly . Learned trial Court after collecting the oral as well as documentary evidence led by the respondent and hearing the ex parte arguments dismissed the suit vide judgment and decree dated 05.01.2010. The respondent being dissatisfied with the said judgment and decree filed an appeal and vide judgment and decree dated 30.06.2010 passed by the learned lower appellate court, the same was allowed while setting aside the judgmen t and decree of learned trial Court and the suit was decreed. Being aggrieved by judgment and decree passed by learned lower appellate Court, the petitioner has filed the revision petition.
2. The learned counsel for the petitioner has argued that learned lower appellate Court has wrongly decided the case against petitioner and failed to appreciate the material available on record in true perspective; that in the present case no regular prosecution was ensued followed by recording of evidenc e 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; that impugned judgment and decree passed by learned lower appellate court is the result of misreading and non-reading of available record; that the lower appellate Court has committed illegality and material irregularity while passing the impugned judgment; that the impugned judgment is against the law and facts of the case, therefore, same is liable to be set-aside.
3. On the other hand, respondent has entered his appearance, however; later on he did not enter his appearance, therefore, he was proceeded against ex parte on 08.06.2016.
4. Ex parte arguments heard. Record perused.
5. Indeed, in the plaint, the plaintif f/respondent has asked for award of damages on account of leveling of false allegations against the respondent in the application filed before Police Station, Sabzi Mandi Gujranwala with malice and due to this application an inquiry was conducted which ended in favour of the respondent. It is by now settled law that every criminal prosecution/inquiry which ends in the clearing of opponent will not per-se entitles the opponent to file a suit for compensation. Successful proceedings initiated under this law required that the original proceedings must have been malicious and without cause. There is no cavil to the fact that 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. In a reported case titled "Muhammad Akram v. Mst. Farman Bibi" (PLD 1990 Supreme Court 28), Hon'ble Supreme Court has enumerated 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 contempothneously . These conditions are as follows: i) That Plaintif f was prosecuted by the Defendant; ii) That the prosecution ended in favour of the Plaintif f; 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 Plaintif f's liberty and had also affected his reputation and the Plaintif f had suf fered damages.
6. Touching 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" 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 plaintif f. The mere filing of a complaint before the police authorities on the basis of allegation was not a "legal wrong. Another ingredient is to see that whether the initiation of the prosecution was with a reasonable and probable cause. 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. 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. The term 'malice' has been elaborated and defined in the authoritative judgment reported as, "Abdul Rasheed v. State Bank of Pakistan"
(PLD 1970 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. A Ry. ((1886) 11 A.0 247). 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 lie appropriate not to infer malice from unreason ableness. 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 Q B 252) ; Mitchell v. Jenkins; Brown v. Hawkes ((1891) 2 Q B 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. Thiruvenkatacharlar (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 ."
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 probable cause. In a case reported as "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'....".
7. It is evident from the perusal of above mentioned judgments, passed by the Hon'ble Supreme Court of Pakistan that suit of the plaintif fs for recovery of damages on the basis of malicious prose cution was not decreed even in those cases where the plaintif fs were discharged and even where the proceedings under section 182 of P.P.C. were initiated against the defendants/complainants. In view of the above discussion, it is evident that basic ingredients to establish and prove a ease for recovery of an amount as damages for malicious prosecution, are not established in the instant case, and in absence of said ingredients, the suit of the petitioner/plaintif f cannot be decreed ,in his favour as in the instant case only an application in a simple way was filed wherein no malice was found on the part of the petitioner . The litigation between the parties is pending upto the High Court which shows that hostility occurs between the parties. The stance of the respondent has not been proved by the respondent through cogent and inspiring evidence and only a photocopy of inquiry held by the D.S.P was produced. Neither consistent trial was made nor respondent has arrested by the police, therefore, respondent has failed to prove any dishonor and mental as well as financial loss to him.
8. In view of the above, revision petition in hand is allowed, consequent whereof the impugned judgment and decree dated 30.06.2010 passed by the learned Additional District Judge is set aside and the suit filed by respondent is dismissed.