SAHIBZADA ASADULLAH, J. By this single judgment, I intend to decide the instant Civil Revision Petition as well as the one bearing No.22-B of 2018, as both have arisen out of one and the same judgment and decree dated 28.10.2017 passed by the learned Additional District Judge-I; Bannu, whereby, on one hand, the appeal of the petitioner was partially allowed by reducing the decretal amount from Rs.8,00,000/- to Rs.5,00,000/-, whereas, on the other, the appeal of the respondent was dismissed.
2. Brief, but relevant facts giving birth to the instant revision petitions are that petitioner/defendant Muhammad Nawab Khan charged the respondent/plaintiff Bahader Sher along with others for the death of his minor nephew and for causing firearm injuries to his mother vide FIR No.44 dated 09.05.2001 under sections 301/324/148/149, P.P.C. of Police Station Township, District Bannu. The respondent/plaintiff was arrested, who faced trial before the competent Court of law, where after a full dressed trial, he was blessed with acquittal vide judgment dated 27.04.2005. After earning acquittal, the respondent/plaintiff instituted a suit for damages against, the petitioner/defendant for malicious prosecution that because of the false claim of the petitioner/defendant, he lost his reputation in the surrounding area and that apart from his reputation, he suffered both mental and financial loss.
3. The defendant was summoned, who put his appearance, wished to contest and as such, submitted his written statement the divergent pleadings of the parties gave rise to framing of various legal and factual issues. The learned trial Court after recording of evidence and hearing arguments of learned counsel for the parties, decreed the suit of the respondent/plaintiff to the extent of recovery of Rs.8,00,000/- vide judgment and decree dated 25.06.2011. Feeling aggrieved, both the plaintiff/respondent and defendant/petitioner approached the court of appeal with their respective prayers i.e. the one asked for enhancement and the other, for setting aside the decree passed against. The court of appeal after hearing the parties, partially allowed the appeal of the petitioner/defendant by reducing the decretal amount from Rs.8,00,000/- to Rs.5,00,000/-, whereas, the appeal of the respondent/plaintiff was dismissed. Both the sides felt aggrieved, from the same, approached this court through the instant revision petitions, which 1 intend to dispose of through this single judgment.
4. The learned counsel for the parties were heard at length and with their valuable assistance, the record was gone through.
5. 09.05.2001 was the most unfortunate day for the defendant, as his nephew lost his life and mother received injuries, who were brought to Civil Hospital, Bannu and the matter was reported to the local police stationed there. The complainant while reporting the matter, disclosed that on the eventful day, he was busy in irrigating his lands through tubewell and his nephew Shahid Ullah along with his mother was sitting on a cot; that in the meanwhile, one Anwar Hussain appeared, duly armed with a 12 bore DBBL shotgun, and started firing on one Sajid Khan i.e. the son of the plaintiff, but luckily, he escaped unhurt and the accused after commission of the offence, decamped from the spot; that soon thereafter, Sajid Khan, who was armed with a DBBL shotgun, fired at lsrar Hussain, the brother of accused Anwar Hussain, in retaliation, but he too luckily escaped unhurt; that after the firing, so made, both the parties once again appeared on the spot and engaged in active cross-firing. When the firing stopped and both the parties left the spot, the complainant attracted to the place of occurrence, where he observed his nephew lying dead in a pool of blood and his mother, injured.
6. The complainant charged both the parties for the death of the deceased and the injuries caused to his mother, as he was uncertain that from whose fire shots, the damage was caused, The report was penned down in shape of FIR No.44 of the even date under sections 301/324/ 148/149, P.P.C with Police Station Township, District Bannu. It is pertinent to mention that both the rival parties also registered cases against each other in the shape of FIR No.45 and FIR No.46 on the same date with the same police station.
7. When the accused, booked in FIR No.44, were arrested, they faced trial and ultimately, were acquitted of the charges. Out of the accused, facing trial, the accused Gul Shah Daraz and others were acquitted on the basis of compromise, as a compromise was effected between the parties and in that respect, the complainant/petitioner appeared before the trial court as PW-05 and apprised the Court regarding the compromise. As no compromise was effected with the respondent/plaintiff and his son, so the learned trial Court proceeded with the trial and ultimately, on conclusion of the trial, the plaintiff / respondent was acquitted of the charges. It is pertinent to mention that the plaintiff/respondent, after having been booked in the criminal case, submitted an application regarding his innocence to the quarters concerned. In the application, the plea taken was his availability at another place at the time and on the day of incident. The plaintiff/respondent faced the trial and on close of evidence, his statement under section 342, Cr.P.C was recorded. In his statement, recorded under section 342, Cr.P.C, the plaintiff reiterated the stance taken at the earliest, which found favour with the learned trial Court and the plaintiff/ respondent was acquitted of the charges vide judgment dated 27.04.2005. It is interesting to note that the learned trial Court was highly swayed with the investigation conducted, regarding his innocence and that while handing down the impugned judgment. observations were rendered, in that respect. The learned trial Court, while acquitting the accused, mainly relied upon his plea of alibi and as such observations were penned down in his favour. These were the observations which prompted the plaintiff/respondent to sue the petitioner for damages.
8. The learned counsel representing the petitioner/defendant submits that both the courts below fell into error and that they failed to comprehend the issue in hand in its true perspective; that the plaintiff could not succeed in bringing on record malice on part of the petitioner and that they miscalculated the losses suffered; that in the incident, the petitioner is the worst sufferer as on one hand, his mother got injured, whereas, on the other, his poor nephew lost his life; that neither mala fide is spelt out from the record nor the plaintiff could bring on record that the complainant ever had a previous grudge against them; that not only the plaintiff/respondent was charged, but also the opposite side with whom he effected compromise; that the injured and the deceased soon after the occurrence were shitted to the hospital and their medico legal certificates and post- mortem report were prepared; that the investigating officer visited the spot, prepared the site plan on pointation of the witnesses and also secured blood from the place of incident; that the plaintiff/respondent though was acquitted of the charges, 'but the approach of the learned trial court, in that respect, is the outcome of haste, as the plaintiff/respondent could not produce solid evidence in support of his plea of alibi and that the observations rendered by the learned trial court, which formed to be the basis for asking damages, find no support from the record. He lastly submitted that the petitioner/ defendant suffered twice, as on one hand, his mother got injured and his "nephew was done to death, whereas, on the other, a decree was passed against him to satisfy the claim of the plaintiff.
9. Contrarily, the learned counsel representing the respondent/ plaintiff submitted that the approach of the learned trial court is correct in all respect; that the matter was properly appreciated and that it was the consistency among the witnesses which led to a decision in his favour; that the determining factor was not the injuries caused and death occurred for holding the plaintiff/respondent liable for the wrong done, rather it is the inherent worth of the evidence brought before; that mala fide on part of the petitioner/defendant is floating on surface of the record and that the learned trial court was fully justified to decree the claim of the plaintiff and that the decretal amount in no way is sufficient to compensate the damage caused to the plaintiff, both financial as well as mental. He lastly submitted that the court of appeal fell into error while modifying the judgment/decree passed by the learned trial Court by reducing the decretal amount to Rs.500000/- (five lac), which calls for interference and as such, the quantum of damages assessed by both the courts below is not only inadequate, but beyond understanding as well.
10. This is for this court to determine as to whether the approach of the learned courts below is in accordance with law; as to whether the evidence on record has been fully appreciated; as to whether the claim of the petitioner falls within the ambit of malicious prosecution and as to whether the observations rendered by the learned trial court, in the criminal case, have rightly been held the basis for initiating the proceedings, against the petitioner, for damages.
11. In the instant case, on one hand, this Court is to see the status of the plaintiff, his occupation: his integrity, but on the other, this Court is to see as to what damage has been caused to the plaintiff and as to whether the petitioner/defendant had mala fide or malice to charge him. This court is also under obligation to discover the undiscovered aspects of the case, to assess the damage caused to the plaintiff and also, the irreparable loss that occurred to the petitioner/defendant in the shape of injuries caused to his mother and the death of his nephew. Before, this court dilates on the factual aspects of the case, it deems it essential to highlight the legal aspects of the case, that too, in light of the judgments rendered by the superior courts of the country.
12. It might be true that the respondent/plaintiff is a man of repute and enjoys good reputation in the area being a government servant, but that alone is not sufficient to honour his, claim, rather he is under obligation to prove his claim beyond doubt, through trustworthy and confidence inspiring witnesses. The present case is unique, because the claim of the petitioner is to be answered from the attending circumstances of the case, rather than sticking to the statements recorded by the witnesses. In order to appreciate as to whether the plaintiff had a genuine cause to sue and the defendant had a malice to charge, this Court is to see as to whether there existed previous between the parties and as to whether the criminal charge against the respondent/plaintiff was the outcome of mala fide and ulterior motive. In order to understand the controversy in hand, I deem it appropriate to go through the FIRs registered by the parties on the day of incident i.e. FIRs Nos.44, 45 and 46, in the same Police Station. Though FIRs Nos.45 and 46 were registered by the rival groups against each other, but FIR No. 44 was registered by the petitioner/respondent, against the plaintiff and his son and the other rival side as well, regarding the death of his nephew and injuries caused to his mother.
13. The attending circumstances of the present case and the one registered against the plaintiff/respondent leaves no ambiguity that in the episode, the petitioner/defendant is the worst sufferer, that too, when he had no axe to grind, as on one side he lost his nephew, whereas, on the other, his mother received serious injuries. There was no way out for the complainant, but to charge the responsible, so he did. As the petitioner/defendant charged both the parties, who were actively engaged in cross firing, for the damage caused to him and even both the sides admitted their presence on the spot, when they registered FIRs Nos.45 and 46 against each other. It is pertinent to mention that soon after their arrest, the accused charged in case FIR No.44, faced trial and one set of the accused with whom the petitioner entered into a compromise, earned acquittal on the basis of compromise, whereas, the plaintiff and his son faced the trial and on its conclusion, earned acquittal. True that the respondent/plaintiff was acquitted of the charges, when he succeeded in getting a favourable report from the investigating officer, when his plea of alibi was inquired into and the same turned to be the basis for his acquittal, as the learned trial judge while handing down the judgment made observations in his favour, but equally true that such observations should not be the determining factor in the case in hand, as the plaintiff/respondent is to travel an extra mile to convince the learned trial court in that respect. There is no cavil to the proposition that mere acquittal of an accused charged for commission of the offence will nor ipso facto make the complainant liable for damages and that the same alone cannot be the basis for initiating proceedings, more particularly, that for damages, as much is to be proved by the plaintiff before he succeeds in getting a decree in his favour.
14. The present case is an exception, as apart from taking into consideration the reputation of the plaintiff/respondent, his status in the society and the post against which he was working much is needed for him to prove as in the instant case, the complainant/petitioner is the worst sufferer. If on one hand, the plaintiff claims the loss of reputation and mental agonies, then on the other, the complainant/petitioner has the equal rights to ask the responsible for the death of his nephew and the injuries caused to his mother. As three different FIRs were registered on the day of incident regarding the incident, so no ambiguity is left that the incident occurred at the stated time and on the spot, so the complainant' succeeded to a greater extent, to convince the court of law that, the incident occurred in the mode, manner and at the stated time. The investigating officer investigated the case from different angles and in all the three cares, complete challan was submitted against the accused charged. It is pertinent to mention that neither the investigating officer nor the SHO of the concerned police station put the accused charged, in column No.2 of the challans and even, no recommendations regarding their innocence were made so much so, neither the accused were discharged under section 169, Cr.P.C nor the cases were recommended for cancellation. The sweeping observations of the learned trial judge in isolation are nix sufficient to burden the petitioner/defendant with the liability, rather for the same, the learned trial court was under the obligation to appreciate the cause of the petitioner, keeping before the attending circumstances of the present case. The mere assertion of the plaintiff and his mere acquittal, by itself, is not the determining factor, rather this is the cumulative effect of the entire atmosphere, created on the day of incident, that must be' taken into consideration, before reaching to a definite conclusion, but the learned trial court as well as the court of appeal could not comprehend the issue in hand and as such misdirected themselves both in facts and in law.
15. This is for this Court to determine as to whether the complainant/petitioner charged the plaintiff/respondent with mala fide and that as to whether the investigating officer and thereafter, the SHO of the concerned police station recommended the case for cancellation and initiated proceedings under section 182 of the Pakistan Penal Code, 1860, but I am confident in holding that no action was taken and no request was made to the competent court of law in that respect. The record is silent and even the plaintiff could not bring on record that they i.e. the petitioner/complainant and the plaintiff/respondent had any ill will or ever involved in the like activities, which prompted the complainant/petitioner to charge the plaintiff/respondent with sinister designs. The learned courts below failed to convince that what material was taken into consideration which helped the respondent, that too, at the cost of the petitioner/defendant. This is surprising that the learned trial court as well as the court of appeal were highly swayed with the observations rendered by the learned trial court at the time when the accused was acquitted of the charges and the plea of alibi claimed. As both the trials i.e. the one before the court of Additional Sessions Judge in the criminal case and the other, before the court of learned Civil Judge, were to proceed independently within their respective limits, so the influence gathered from the judgment of acquittal rendered in favour of the plaintiff/respondent should have not been the sole determining factor, rather the courts were under obligation to equally assess the damage caused to the complainant/petitioner which they did not and as such, fell into an error that cannot be rectified.
16. It is not the rule of thumb that every case, which ends in acquittal would ipso facto entitle the acquitted accused to sue for damages, as in that eventuality, the damage caused would be beyond repair and the criminal justice system would come to a halt. As by doing so, the aggrieved parson would suffer at the hands of the incompetent investigation and the people would lose the courage to register their claims and the same would in turn lead to a chaos. Under all circumstances, the burden is and would be on the person, claiming damages, to prove that the charge against him was the out come of malice and mala fide and that the sole purpose was to tarnish his character and damage his reputation. In this respect, reliance could be placed on a judgment rendered by the Apex Court in case titled "Subedar (Retd.) Fazale Rahim v. Rab Nawaz"
(1999 SCMR 700) wherein it was held 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 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."
17. Successful proceedings initiated under this law requires that the original proceedings must have been malicious and without any reasonable and probable cause. There is no cavil to the proposition that every person in the society has a right to set the legal machinery in motion for the protection of his rights, but while doing so, such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigations. For a claimant to succeed in an action for malicious prosecution, must plead and prove, with credible and cogent evidence, the fulfillment of the following ingredients: 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 plaintiffs liberty and had also affected his reputation and the plaintiff had suffered damages.
18. There is no denial of the fact that malicious prosecution, on one hand, is an abuse of the process of Court by wrongfully setting the law in motion on a criminal charge, whereas, on the other, it increases the agonies of all concerned, which must be curbed at the earliest and the one, who engages the courts of law with malice in mind, must be punished for ii sinister designs, that too, by compensating the one who was wronged. If the like activities are left unchecked, the same would yield to drastic results and ultimately, would tarnish the image and integrity of the courts of law. In the instant case, not only the learned trial court, but the court of appeal as well, fell into error, as both the courts below were highly swayed by the observations rendered in the judgment which led to acquittal of the plaintiff/respondent and his un-assessed reputation. I do admit that every citizen is equally respectable unless proved otherwise, but in the like eases, it is not the reputation, character, and social status of the claimant to be taken into consideration, rather the courts of law must take into consideration the mala fide and Malice on part of a person who opts for initiating criminal proceedings.
19. Whether this particular case can be decided solely on the ground of acquittal of the accused charged and the observations in his favour, the answer is an emphatic 'No', as in the instant case the damage caused to the parties must be weighed even handedly, as the damage caused to the complainant is far greater than the one caused to the plaintiff. The law for damages is enacted with the sole purpose to discourage the frivolous litigation, as it is the only tool which could curb the menace. It is a must to understand that what, in fact, 'malice' means as its real meaning would help a lot the courts of law, who are seized of the matter, and understanding its real essence, would rescue the poor litigants whose cases did not succeed either because of poor investigation or lack of evidence. The term 'malice' has been defined in Black's Law Dictionary as "wrongful intention". Its dictionary meaning helps a lot and it specifies a direction to the courts concerned that to hold a person liable for damages, the intention of the adversary must be the determining factor and to conclude that the person who initiated criminal proceedings was having wrongful intention for that matter, the physical circumstances of the case in hand must be collectively taken into consideration coupled with the attitude and aspiration of the person who charges, by doing so the courts seized of the matter would be in a better position to conclude either way. If we apply the test to the case in hand, then I am afraid that the courts below failed to appreciate this particular aspect of the case, as instead of taking into consideration the physical circumstances of the case, the aptitude and intention of the complainant, the courts exercised the easiest choice available to them and as such, miscarriage of justice was caused.
20. As the term needs further elaboration, so in order to understand its real essence, I am fortified with a judgment of the Apex Court reported as "Abdul Rasheed v. State Bank of Pakistan" (PLD 1970 Karachi 344).
"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."
21. The courts below could not convince as to what led it to hold, the criminal proceedings as malicious. The observations rendered by the courts below indicate that they failed to understand the real essence of 'malicious prosecution'. The term 'malicious prosecution' is defined in the Black's Law Dictionary as" The institution of a criminal or civil proceeding for an improper purpose and without probable cause." The same has been elaborated by the Apex Court in a case reported as "Muhammad Yousaf v. Abdul Qayyu m" (PLD 2016 SC 478).
"A tort which provides redress to those who have been prosecuted 'without reasonable cause' and with 'malice'....".
22. After taking into consideration the judgments (supra), no ambiguity is, left that for asking damages, that too, for malicious prosecution, it is the bounden duty of the claimant to convince the court of competent jurisdiction, that the proceedings against him were the outcome of malice and, mala fide. In this particular case, as for the casualties caused, the petitioner charged both the rival groups, that by itself is sufficient to tell that the petitioner had no mala fide against the plaintiff/respondent, rather he acted with bona fide. Had he any malice; he would have singularly charged the plaintiff/respondent, which is not the case in hand.
23. In the wake of above discussion, this court is not hesitant to hold that both the courts below fell into error while handing down the impugned judgments and decrees, as they failed to appreciate the issue in hand in its true perspective. I lurk no doubt in mind that the judgments rendered and decrees passed need interference, as such, the same are set aside and the connected Revision Petition No.22-B of 2018 is doomed to fail, which is dismissed as such.