SHAHID BILAL HASSAN-J: Succinctly, the present appellant instituted a suit for recovery of Rs.62,500,000/- on the basis of malicious prosecution, against the respondents by maintaining that he belongs to a very respectably family having good reputation/character in society as well as qualified person; that Mst. Kausar Parveen alongwith other defendants/ respondents filed miscellaneous applications by creating fictitious, fabricated and bogus occurrence; that respondents got lodged FIR No.345 of 2017 against the present appellant by mentioning a false and fabricated occurrence under sections 506-B/379 PPC at Police Station, Saddar Pattoki, whereas no such occurrence took place; that after detail investigation by the concerned authorities, a cancellation report was prepared which was submitted to the concerned Area Magistrate, who agreed with the same and discharged the present appellant. The other miscellaneous applications were also dismissed by the concerned authorities; that due to above mentioned applications the present appellant suffered mental agony and torture; that the said allegations affected the honour and reputation of appellant's family; that due to such mala fide applications, the appellant suffered irreparable loss to his health and business; therefore, he claimed damages on the basis of malicious prosecution. The respondents/defendants were summoned but despite service they did not appear before the learned trial Court, so they were proceeded against ex parte on 21.02.2018.
The appellant produced his ex parte evidence, oral as well as documentary. The learned trial Court vide impugned ex parte judgment and decree dated 03.01.2020 dismissed suit of the appellant; hence, the instant appeal.
2. The learned counsel for the petitioner has argued that learned Court below has wrongly decided the case against appellant and has failed to appreciate the material available on record in true perspective; that the appellant has proved his case by leading cogent and convincing evidence but even then he has been non-suited; that impugned judgment and decree passed by learned Court below is the result of misreading and non-reading of evidence on record; that the learned Court below has committed illegality and material irregularity while passing the impugned judgment and decree; that the impugned judgment and decree is against the law and facts of the case, therefore, same is liable to be set-aside by allowing the appeal in hand.
3. On the other hand, the learned counsel, representing the respondents has supported the impugned judgment and decree and has prayed for dismissal of the appeal in hand.
4. Heard.
5. Undeniably, in the plaint, the appellant/plaintiff has prayed for award of damages on account of leveling of false allegations against the respondents in the FIR lodged against the appellant, with malice and due to this an inquiry was conducted which ended in favour of the appellant as cancellation report was prepared, which was submitted before the learned Area Magistrate, who agreed with the same and the appellant was discharged; however, it is, by now, a settled law that every criminal prosecution/inquiry which ends in the clearing of opponent will not per-se entitle 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 unjustified litigation. In a reported case titled Muhammad Akram v. Mst. Farman Bibi (PLD 1990 Supreme Court 28), Hon'ble Supreme Court has reckoned 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 conjointly. These conditions are as follows: i) That the plaintiff was prosecuted by the defendant; That the prosecution ended in plaintiff's failure; That the defendant acted without reasonable and probable cause; That the defendant was actuated by malice; That the proceeding had inferred with plaintiff's liberty and had also affected her reputation; and finally That the plaintiff had suffered damages.
This precedent has further been reiterated invariably in case of Niaz and others Vs. Abdul Sattar and others (PLD 2006 Supreme Court 432).
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 plaintiff. 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 plaintiffs 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.C 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 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. 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.
Thiruvenkatachariar (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 Apex Court of the country has 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 August Court of the country that suit of the plaintiff(s) for recovery of damages on the basis of malicious prosecution was not decreed even in those cases where the plaintiff(s) 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 case 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 appellant/plaintiff cannot be decreed in his favour as in the instant case only an FIR was lodged or certain other miscellaneous applications were filed, wherein no malice was found on the part of the respondents. The litigation between the parties over drainage of waste water is admitted which shows that hostility occurs between the parties. The stance of the appellant has not been proved by him through cogent and confidence inspiring evidence. Neither consistent trial was made nor the appellant was arrested by the police, therefore, the appellant has failed to prove any dishonor and mental as well as financial loss, alleged to have been caused to him via lodging of FIR ibid or filing of miscellaneous applications.
8. In view of the above, the appeal in hand fails, which is hereby dismissed with no order as to the costs.