Dr. Khurshid Iqbal, J.-
1. Lal Zaman, the appellant, brought a civil suit against Farhad Ali, the respondent, for the recovery of Rs. 10,000,000/- as damages for suffering mental as well as physical agonies, defaming his goodwill and loss of business etc. Similarly, the appellant further sought recovery of Rs.100,000/- as litigation expenses and payment of counsel fee incurred on perusing a criminal case bearing FIR No.294 dated 27.09.2011 u/ss.506/34, PPC, registered at Police Station Dargai, lodged by the respondent against the petitioner. The respondent appeared before the learned trial Court. He submitted his written statement and denied the stance of petitioner through various legal and factual objections. Issues were framed. The learned trial Court afforded full opportunity to both the parties for recording their respective evidence who availed the same. After hearing arguments of learned counsel for the parties, the learned trial Court dismissed the suit of the petitioner vide impugned judgment and decree dated 24.10.2018.
2. The appellant has called into question the judgment and decree of the learned trial Court through the instant Regular First Appeal.
3. The law of torts for damages on the basis of malicious prosecution is well defined and settled. In the case of Muhammad Akram vs Mst. Farman Bi, reported as PLD 1990 SC 28, the following ingredients have been laid down for the malicious prosecution:
(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 caused;
(iv) That the defendant was actuated by malice;
(v) That the proceedings had interfered with plaintiff's liberty and also affected [his] reputation; and finally
(vi) the plaintiff had suffered damage.
4. These ingredients have been applied in many other cases, such as: Subedar (Retd) Fazle Rahim v. Rab Nawaz, 1999 SCMR 700Rafigue Ahmad Khan v. Province of Punjab through Secretary, Education and others. 2004 SCMR 1065.
Ali Mardan v. Allah Bakhsh, 2005 YLR 3172 [Lahore]Ghulam Ali v. Ranjho Khan, 2007 MLD 1657 [Lahore] Abdul Wadood and others v. Muhammad lqbal and another, 2013 MLD 584 [Sindh]Hussain Gul v. Soorat Shah and others 2014 MLD 1008 [Peshawar'] Mehr ban v. Ghulam Hassan, 2016 CLC 1585 [Peshawar DI Khan Bench].Abdul Khameed v. Muhammad Shabbir and another, PLD 2021 Islamabad 405
5. Now, coming to the facts and evidence of the case in hand. It is fully established that a criminal case was registered by the respondent against the appellant and that the prosecution ended in favour of the appellant by earning acquittal in it. It means that the first two ingredients stand satisfied. As regards the remaining four ingredients, the evidence of the appellant needs to be reappraised. The appellant recorded his statement as PWI at the trial. He produced one Haider Ali and Fayaz Ahmad (PWs-2 and 3) in support of his contention. His evidence shows that the appellant is a teacher by profession since the year 1999. He has been doing his job as a teacher. He was on leave for three days after his arrest in the criminal case. He is mentally sound though he personally suffered due to a criminal case registered against him. PW2 is his close friend and PW3 is his maternal first cousin. It is in his evidence that he commands respect and honour in the community. He participates in all social activities of the community. However, he failed to prove that his prosecution was without reasonable and probable cause, actuated by malice of the respondent, his liberty was interfered with, which also affected his reputation and that he suffered damage. Though it is in his evidence that he was arrested, as such, his liberty was interfered with.
However, his arrest alone is not sufficient for the grant of a decree in his favour. The reason obviously is that all other ingredients were to be fully established in the evidence. He did not mention in his affidavit (examination-in-chief) that he has spent Rs.100,000/- as expenses over the litigation. He admitted having not placed on file the receipt of the fee he has paid to his counsel. He also did not produce his counsel as a witness.
He stated that due to the criminal case against him, the educational activities of his children and nephews/nieces were badly suffered. His testimony shows that there is also a pre-emption suit against him which he has been pursuing. He admitted that when he appears before the Court in a pre-emption case on that day, his nephews/nieces are unable to attend the school. He further admitted that he had instituted a civil suit in respect of a piece of land against one Mukamal Shah.
He further admitted that one Mst. Shamshad, a woman, had filed against him a complaint u/s.107/151, Cr.P.C. His statement further shows that his father has civil litigation against one Khaista Khan. His statement shows that he has not filed a suit for damages against the aforesaid Mukamal Shah. He admitted having not annexed any medical report in support of his mental disturbance due to the criminal case against him. Statement of PW2 shows that there is also a civil litigation between the appellant and one Nowsherawan. In the affidavit (examination-inchief) submitted by PW3, there is no mentioning of the criminal case against the appellant. PWs-2 and 3 were asked about the counsel's fee but they did not know as to how much it was. Statement of PW2 shows that the respondent/defendant had also nominated one Kamran in the criminal case and that the aforesaid Kamran has not instituted a case for damages.
6. The respondent/defendant recorded his sole statement. He deposed that the appellant is a professional litigant. He produced copies of certain civil suits such as Shamadar v. Khaista Rahman and Umar Muhammad v. Lal Zaman.
7. Adverting now to the essentials for malicious prosecution listed in para 3 above, from the facts and evidence discussed above essentials at serial # (i), (ii) and (v) stand satisfied, for the reasons that the appellant was prosecuted by the respondent, the prosecution ended in his favour, his liberty was interfered with as he was arrested in the criminal case. However, the remaining three-- the respondents having acted without reasonable and probable cause, he being actuated by malice and the appellant having suffered damage--were not proved. In the case of Fazale Rahim referred to above, the Supreme Court held that: "10.[...] the 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 reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."
8. In Rafique Ahmed Khan, it was held that in the absence of clear allegation of specific mala fide prompted by personal grudges on the part of the defendant coupled with mere registration of a criminal case would not amount to malicious prosecution.
9. In the cases of Abdul Wadood and others, Hussain Gul, Mehraban and Abdul Khameed, the essential # (iii) of probable and reasonable cause, was elaborated with reference to certain case law and the Black's Law Dictionary. The case of Abdul Khameed is the latest one having been reported in the year 2021. In this case, the explanation of the probable and reasonable cause offered by the Supreme Court in Muhammad Yousaf v. Abdul Qayum (PLD 2016 SC 478) was quoted, which reads 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 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'."
10. Regarding damage suffered by the appellant, reference may be made to the case of Ghulam Ali, in which it was held that damages can only be decreed when, as per averment in the plaint, they are proved in evidence. In Ali Mardan, the Court ruled that monetary loss as alleged was not proved. In Abdul Khameed, it was observed that where no damages were quantified by the plaintiff, the Court may in its discretion grant damages for loss of liberty, dignity, mental anguish, as may be reasonably considered proportionate to the loss the plaintiff may be presumed to have suffered. However, in the instant case malice coupled with existence of reasonable and probable cause was not proved.
11. The above reappraisal of evidence has led me to the conclusion that none of the ingredients No. iii to vi, were proved by the appellant.
12. In the light of above reappraisal of evidence and the principles laid down in the case law, the appeal in hand dismissed, being bereft of merits.