MUHAMMAD SHAN GUL, J. Through this judgment the titled civil revision is sought to be decided.
2. Respondent Muhammad Gulzar instituted a suit for recovery of Rs.14,00,000/- against his real brother i.e. the petitioner Khuda Yar contending that the petitioner while acting maliciously and in the absence of reasonable and probable cause and in connivance with his daughter in law lodged a false and malicious crime report bearing FIR No.92/17 under Section 496-A PPC at P.S. Dhanote, Kehror Pacca against him. That on account of no evidence the police prepared a cancellation repor t but the Magistrate concerned did not agree with the said report and directed the police to file a challan in the case. That the respondent was tried and ultimately acquitted of the charge against him.
3. The respondent claimed before the trial court that on account of his false involve ment he had to bear and endure loss in business, in crops, in addition to incurring legal expenses as also suffering mental anguish and lowering of his reputation in the eyes of his peers. An amount of Rs.14,00,000/- was claimed on the basis of the tort of malicious prosecution i.e. initiation of criminal prosecution for an improper motive and without a reasonable cause.
4. The petitioner before this Court filed his written statement praying for the dismissal of the suit. The trial court framed the following issues:- i). Whether the plaintiff is entitled to recover Rs.14,00,000/- as damages from the defendant?OPP ii). Whether the plaintiff has no cause of action to file the instant suit?OPD iii). Whether the plaintiff has not come to the court with clean hands?OPD iv). Whether the suit of the plaintiff is not maintainable and is liable to be dismissed with special costs?OPD v). Relief.
5. The respondent appeared as his own witness and also produced documentary evidence, details of which are available in the judicial file. Likewise, the petitioner also appeared as his own witness and also produced documentary evidence in his favour .
6. The respondent as PW -1 claimed to have sustained the following losses:- a). He had applied and was granted work permit allowing him to move and seek employment in Saudi Arabia but lodging of false FIR by the petitioner and ensuing litigation prevented him from moving abroad and, in the process, he sustained a loss of Rs.2,00,000/-. b). He bore expenses of Rs.2,00,000/- as legal charges for defending himself during the trial of FIR No.92/17. c). He suffered loss of Rs.1,000,000/- since his business and agriculture crop were adversely affected. d). He endured mental agony and distress.
7. However , most interestingly , during the course of cross examination the petitioner admitted that he was not present at the alleged site of occurrence in respect of which he had lodged the crime report in question. He also admitted that he lodged the said crime report on the asking of his daughter in law i.e. on the basis of hearsay .
8. The trial court partially decreed the suit filed by the respondent vide judgment and decree dated 03.10.2019. The trial court traced the history of acrimony and hostility between the competing parties on account of their relations inter-se. Some of such features are that the respondent' s niece (petitioner 's niece as well) was married with a son of the petitioner . This son of the petitioner contracted a second marriage with Hameeda Bibi (the alleged abductee on whose asking and coaxing the crime report in question was lodged). Meanwhile, the first wife of the son of the petitioner obtained a decree of maintenance allowance against him. The petitioner suspected the respondent to have played a role in such matter .
9. The trial court opined that since the petitioner had admitted that he lodged the crime report in question without being present at the alleged site of occu rrence, without being the first informant and only on the asking of his daughter in law and since it turned out that the said crime report had been lodged without reasonable and probable cause and since the respondent had earned an acquittal in the crime report in question and since no separate complaint was filed and even the acquittal was not seriously challenged, the respondent had proved issue No.1.
While deciding this issue the trial court granted damages in the sum of Rs.1,00,000/- only since according to the trial court the respondent could not prove loss of business and loss of crops. While Rs.50,000/- in lieu of legal fee was awarded, Rs.50,000/- was also awarded on account of mental anguish suffered by the respondent. All other issues were decided against the petitioner on account of failure to discharge burden of proof.
10. Both competing parties preferred appeals against judgment and decree dated 03.10.2019. Vide judgment dated 22.9.2020 a learned Additional District Judge dismissed both appeals. This led the petitioner to file the present civil revision.
11. The appellate court noted that the trial court had rightly awarded Rs.1,00,000/- on account of legal fee as also mental anguish since the respondent had to face the daunting and Herculean task of facing criminal prosecution which indeed involves expenditure. The learned appellate Judge upheld the judgment and decree dated 03.10.2019 and also awarded Rs.30,000/- on account of court fee expenses, in the suit as also in the appeal, to the respondent.
12. Learned counsel for the petitioner submits that while it is true that the respon dent earned an acquittal in the crime report lodged against him it is equally true that the case had been rightly registered and which is why a learned Magistrate had not agreed with the cancellation of said case. He claimed that an appeal against acquittal was filed but was dismissed in limine. However , he has not produced any document to substantiate his assertion.
13. On the other hand, learned counsel for the respondent submitted that the law laid down by the Hon'ble Supreme Court of Pakistan in "Muhammad Yousaf v. Abdul Qayyum" (PLD 2016 Supreme Court 478) is squarely attracted to the facts of the present case and, therefore, the trial court as also the appellate court rightly awarded damages to the respondent.
14. Heard. Record perused.
15. The Hon'ble Supreme Court of Pakistan in "Subedar (Retd.) Fazale Rahim Vs. Rab Nawaz" (1999 SCMR 700) while relying on PLD 1990 SC 28 reiterated the factors which must be established for a case of malicious prosecution to succeed: "7. There appears to be no controversy in regard to the different elements which constitute the test for awarding decree to the plaintiff in a suit for malicious prosecution. As was noticed by this Court in Muhammad Akram v.
Mst. Farman Bi (PLD 1990 SC 28) the following factors must be established by the plaintiff before such a decree can be awarded to him. i). That the plaintiff was prosecuted by the defendant; ii). That the prosecution ended in plaintiff's favour; iii). That the defendant acted without reasonable and probable cause; iv). That the defendant was actuated by malice; v). That the proceedings had interfered with plaintiff's liberty and had also affected her reputation; and finally . vi). That the plaintiff had suffered damage."
16. This benchmark was later endorsed in "Niaz & others v. Abdul Sattar & others" (PLD 2006 Supreme Court 432)
"4. This Court laid down the following principles qua granting or refusing damages with regard to malicious prosecution in Muhammad Akram's case PLD 1990 SC 28 which are as follows:-
(i) That the plaintiff was prosecuted by the defendant.
(ii) That the prosecution ended in plaintiff's failure.
(iii) That the defendant acted without reasonable and probable cause.
(iv) That the defendant was actuated by malice.
(v) That the proceeding had inferred with plaintiff 's liberty and had also effected her reputation and finally .
(vi) That the plaintiff had suffered damages."
17. What would constitute and manifest want of reasonable and probable cause has been explained by "Niaz & others v . Abdul Sattar & others" (PLD 2006 Supreme Court 432): "8. 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 guilt y 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 T empest v . Snowden (1952) 1 K.B. 130 ........"
18. In " Alam Din v . Muhammad Hussain" ( PLD 2012 Lahore 279 ), it has been held as follows:- "10. Prosecutor may be wrong, but if he honestly believed that accused had committed a criminal offence, he could not be initiator of malicious prosecution. Even otherwise, malice alone, would not be enough, there must also be shown to be absence of reasonable and probable cause. 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 an 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 . ..........
11...........It is by now, a well settled law that 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 justifiable reason and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect......."
19. The element of initiation of prosecution by the petitioner against the respondent is established by evidence adduced by the respondent and not rebutted by the appellant. What needs to be ascertained is if the appellant had no reasonable and probable cause to lodge the crime report and whether he acted in malice against the respondent. Both these elements are required to be established in order to enable the claim of malicious prosecution to succeed although in some cases absence of reasonable and probable cause might point towards the presence of malice and if reasonable and probable cause is established, the question of malice might become irrelevant but this rule does not seem to have a universal application i.e. once reasonable and probable cause is established, the presence of malice has to be carefully ascertained.
20. In "United Bank Limtied and 5 others v. Raja Ghulam Hussain and 4 others" (1999 PLC 106), it has been held as follows:- "This Court further laid down in Abdur Rauf' case (supra), that in an action for malicious proceedings, the plaintiff must show that the prosecution of the plaintiff by the defendants was actuated with malice and that there was absence of reasonable and probable cause in launching the prosecution against the plaintiff. The relevant observations of the Court in this behalf were as follows:- "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, Pike v.
Waldrum and Stevens v. Midland Countries . Further , malice should be proved by the plaintiff affirmatively:-- Abrath v. N.E. Ry. (1886) 11 CA 247. Malice may sometime be inferred from absence of reasonable and probable cause but this rule has no general applic ation and there may be cases where it would be appropriate not to infer malice from unreasonableness . 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. amber (1847). 10 QB 252: Mitchell v. Jenkins; Brown v. Hawks (1891) 2 QB 718 and Herniman v. Smith (1938) AC 305. It would be proper here to quote the follow ing observation of Dening, LJ (as he then was) in T empest v . Snowden, (1952) 1 KB 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 in this country .
"11. However , there is no finding that the appellant was actuated by any malice against respondent No.1 for lodging the report. Further , there is also no averment in the plaint that the report was lodged without any reasonable or probable cause. Indeed, in the absence of any averment no amount of evidence could be looked into. Still in the absence of any pleadings, no evidence was produced on behalf of respondent No.1 in this regard. Further , in a decision of the Lahore High Court in the case of Abdul Shakoor v. Lipton & Company (AIR 1924 Lah.1), it was held that in a suit for malicious prosecution proof of existence of malice itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause. This view was reiterated by the same High Court in Nur Khan v . Jiwandas (AIR 1927 Lah. 120) and Gobind Ram v . Kaju Ram (AIR 1939 Lah. 504).
21. In the present case, the petitioner himself admitted while appearing as witness that he deliberately lodged a crime report against the plaintif f. His testimony recorded by the learned trial court depicts that he was not present at the scene of occurrence and merely lodged the crime report on the coaxing of his daughter-in-law . The facts of the present case are almost identical to those adjudicated in "Muhammad Yousaf v. Abdul Qayyum" (PLD 2016 Supreme Court 478).
22. In "Muhammad Yousaf v . Abdul Qayyum" (PLD 2016 Supreme Court 478), it has been held as follows:- "9. This has meant that the plaintiff has had to establish, inter alia, malice as well as absence of reasonable and probable cause to succeed in a claim for malicious prosecution. Mere 'absence of reasonable and probable cause' has not been held to be sufficient to establish malice, although it can be used as evidence for establishing malice.
Malice is a state of mind and can be inferred from the circumstantial evidence. We can take judicial notice of our societal norms which appears to be at variance on norms of English society . The mere lodging of an FIR creates a public perception adverse to the reputation of the accused. Where the FIR is proved either to be false or to have been lodged without reasonable and probable cause, the circumstances of any given case may be sufficient to show that the lodging of the criminal case was malicious. For instance, in certain cases a prior enmity or a family dispute or differences between the families of two spouses can lead to the lodging of a criminal case and initiation of a prosecution based on allegations of a factual nature which are motivated by the aforesaid circumstances rather than a truthful assertion of fact to bring an accused to book through the criminal legal process. In the present case, the falsity of the allegation made against the respondent/plaintif f is established from the fact that the only basis stated by him for lodging the FIR was some information received by him from a person named Sadiq, after the FIR had been registered. Since the said Sadiq was not summoned and produced as a witness by the petitioner/defendant the element of malice on the part of the petitioner can be inferred."
23. It is clear that in the present case the petitioner on account of bitter and sour relations with his real brother and on account of being misguided by information relayed to him by his daughter-in-law (whom he did not produce as his witness) proceeded to lodge and prosecute a crime report without reasonable cause and acted recklessly and irrationally allowing for an inference of malice to be drawn automatically .
24. There is no illegality , irrationality , procedural impropriety or erroneous exercise of jurisdiction in the concurrent judgments passed by the courts below .
25. Dismissed.