AHMAD NADEEM ARSHAD, J. Through this Regular First Appeal, filed under Section 96 of the Code of Civil Procedure, 1908, the appellant called in question the judgment and decree dated 23.01.2023, whereby, the learned trial Court partially decreed the respondent s suit for recovery of damages on the basis of malicious prosecution.
2. The brief but essential facts of this appeal are that the plaintiff (herein after referred to as "the respondent) instituted a suit on 26.04.2012 for recovery of Rs.53,924,500/- as damages for malicious prosecution against the defendant (herein after referred to as "the appellant') with the contention that he is lambardar of Chak No.8-Younis-abad Tehsil Malakwal District Mandi Bahauddin; that he belongs to a respectable family having good reputation in the area; that the Government of Punjab allotted him land measuring 12 acres under the Punjab Government Lambardari Scheme vide order dated 20.03.2009 of District Officer (Revenue) Mandi Bahauddin; that the appellant has political rivalry who without any reason only to tease and blackmail him preferred an appeal before Executive District Officer (Revenue) Mandi Bahauddin for the cancellation of above said allotted land which was dismissed on 24.04.2010 due to non- prosecution; that the said appeal was restored but again dismissed on merits vide order dated 20.07.2010; that the appellant filed a revision petition before Member Board of Revenue Punjab Lahore wherein matter was remanded vide order dated 27.04.2011; that he filed a Review Petition against the said order which was allowed vide order dated 28.09.2011; that the appellant initiated all these proceedings i.e. preferring of appeal as well as revision petitions against the respondent dishonestly, with malafide intention as well as due to mal-practices; that he has to suffer mental and physical torture and spent a huge amount in shape of engaging counsel to defend the said litigations; that he also suffer loss to his agricultural crops and his reputation was also badly effected in the area, so he is entitled to recover Rs.88,500/- as fee of counsel, travelling expenses Rs.131,000/-, mental retardation and damages to reputation Rs.5,00,00,000/-, loss of crops Rs.37,05,000/- total Rs.53,924,500/- as damages for malicious prosecution.
In response, the appellant appeared before the learned trial Court and filed contesting written statement on 13.03.2015 by raising preliminary objections such as the respondent has no cause of action to institute the suit; that he has not come to the Court with clean hands; that the ingredients of defamation are missing, so the suit is liable to be dismissed; that the suit is false and was instituted only to harass and black mail him, so the same is liable to be dismissed with special costs. While replying on facts it was submitted that the land was wrongly allotted to the respondent because the land was reserved for "Charagah" which cannot be allotted to the respondent under Lambardari scheme; that there was no political grudge and he initiated the proceedings with bonafide intention for the welfare of the peoples of the area and to protect the State land. He prayed for dismissal of the suit with cost.
3. Out of divergent pleading of the parties, the learned trail Court vide order dated 08.04.2016 framed following issues.
ISSUES:
1. Whether the plaintiff is entitled for recovery of Rs.53,924,500/- from defendant as damages for mental agony, defamation and cost of litigation due to malicious prosecutions of defendant/OPP.
2. Whether the plaintiff has no cause of action to file this suit ?OPD.
3. Whether the plaintiff has not come to the court with clean hands ?OPD.
4. Whether the suit of the plaintiff is false, frivolous and the same is liable to be dismissed ?OPD.
5. Relief.
The parties were invited to produce their respective evidence. The respondent himself appeared as PW-1 and also got examined Muhammad Zafar as PW-2 and Noor Ahmad as PW-3. The respondent also brought on record 26 documents as Exh.P-1 to Exh.P-24, Exh.P-24/1 and Exh.P25 including 07 documents as Mark-P.1 to Mark-P.7. In rebuttal the appellant himself appeared as DW- 1 and produced only one document as Exh.D-1. Upon conclusion of the trial and after providing opportunity of hearing the learned trial Court partially decreed the suit vide judgment and decree dated 31.05.2016 and awarded Rs.75000/- to the respondent as damages for malicious prosecution. Being aggrieved, the appellant preferred an appeal and this Court vide order dated 02.02.2022 with the concurrence of the parties set aside the judgment and decree dated 31.05.2016 and the matter was remanded to the learned trial Court for its decision afresh. After remand, the learned trial Court, while providing opportunity of hearing partially decreed the suit vide judgment and decree dated 23.01.2023 in the following terms:- "In view of my issue wise findings, the suit of plaintiff is hereby partially decreed and he is held entitled to recover Rs.(50,000) as cost of proceedings and Rs.(50,000) as expenses of travelling etc from defendant (in total Rs.1,00,000). Parties will bear their own costs."
Being dissatisfied, the appellant preferred instant appeal.
4. We have heard learned counsel for the parties at full length and have also perused the record of the learned trial Court with their able assistance.
5. In order to prove his case, the appellant himself appeared as PW-1 and deposed that he is resident of Chak No.8-Younisabad and belonged to a landlord family and also enjoying good reputation; that he is also lambardar of the said village; that Government of the Punjab allotted him 12 1/2 acres land under Lambardari scheme ; that the appellant has political rivalry with him who without any reason only to tease and harass him preferred an appeal before E.D.O.R for the cancellation of above mentioned land as well as to cause damage his reputation and to cause him monitory loss; that he appeared before the said Court, engaged a lawyer; that said appeal was dismissed due to non-prosecution; that said appeal was restored and again dismissed on merits; that the appellant only to tease and harass him filed a revision petition before Member Board of Revenue Lahore which was also dismissed; that he also filed a review petition through his counsel which was allowed vide order dated 28.09.2011; that due to this dishonest litigation he faced difficulties and remained mentally upset and also spent a huge amount on the litigation. He also described the details of damages faced by him due to this litigation. During cross examination he admitted that the appellant was also a land owner. He also admitted that except the appellant another person also moved an application to the effect that the land was wrongly allotted to him.
He admitted that writ petition of other objectors is pending before Hon'ble High Court. He also admitted that the possession of the said land was not delivered to him; however, voluntary said that on 28.05.2014 the possession was given to him. He further admitted that the possession was withdrawn vide order of the DCO dated 04.06.2014. He denied the suggestion that due to said litigation he has not suffered any loss. The respondent also got examined Muhammad Zafar son of Ata Muhammad as PW-2. He also deposed in line with the respondent. During cross examination he admitted that the respondent has not participated in any election. He further admitted that the appellant is also resident of Chak No.8. He denied the suggestion that the appellant initiated the proceedings against the respondent honestly. He admitted that the possession was withdrawn by the order of D.C.O. Noor Ahmad son of Ghulam Muhammad appeared as PW-3. He also corroborated the statements of PW-1 & PW-2. However, during cross examination he admitted that the appellant is also gentleman. He showed his ignorance that many other persons also moved application against the respondent which are pending before Hon'ble High Court.
6. In rebuttal, Asghar Ali appellant appeared as DW-1 and deposed that he has no political rivalry against the respondent; that he moved the appeal upon the asking the inhabitants of the locality only for the welfare of the peoples and protection of state land; that due to this litigation the respondent has not suffered any loss; that the land allotted to the respondent is a "Charagah"; that he moved the application against the respondent honestly without any ill will or motive; that one Ghulam Muhammad also initiated proceedings against the respondent. During cross examination he admitted that the respondent is lambardar of Chak No.8 and Chak Doddan. He admitted that the land measuring 12 acres was allotted to the respondent but possession was not given. He also deposed that the land in disputed was reserved for common "Charagah". He admitted that he also moved an application for his appointment as lambardar. He further admitted that he has no link with the land allotted to the respondent rather the same is in the welfare of the inhabitants of the area. He denied the suggestion that he has any political rivalry with the respondent. He also denied the suggestion that the respondent faced any loss with regard to his health, crops or reputation due to said litigation.
7. The suit in hand was instituted by the respondent seeking recovery of Rs.53,924,500/- on account of malicious prosecution. In the case of "MUHAMMAD AKRAM versus FARMAN BIBI" (PLD 1990 Supreme Court 28), the august Supreme Court of Pakistan has laid down certain principles for the grant or refusal of damages on account of malicious prosecution. The first two of these conditions are required for the issue of maintainability whereas the remaining are to be proved for success and the said conditions must exist conjointly. These conditions are as under: -
(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 his reputation and finally
(vi) that the plaintiff had suffered damage.
This precedent has further been reiterated invariably in case of "NIAZ and others versus ABDUL SATTAR and others" (PLD 2006 Supreme Court 432).
8. In order to comprehend the concept of malicious prosecution, it would be appropriate to go behind its meaning and definition. The term "malicious prosecution' is defined in the 11th Edition of Black's Law Dictionary in the following manner: - "The institution of a criminal or civil proceeding for an improper purpose and without probable cause. The tort requires proof of four element's (1) the initiation or continuation of a lawsuit; (2) lack of probable cause for the lawsuits' initiation; (3) malice; and (4) favourable termination of the original lawsuit.
A judicial proceeding, instituted by one person against another from wrongful or improper motives, and without probable cause to sustain it. It is usually called a malicious prosecution; and an action for damages for being subjected to such a suit is called an action for malicious prosecution. In strictness, the prosecution might be malicious, that is, brought from lawful motives, although founded on good cause. But it is well established that unless want of probable cause and malice occur no damages are recoverable. However, blameworthy was the prosecutor's motives, he cannot be cast in damages if there was probable cause for the complaint he made.
Hence, the term usually imports a causeless as well as an ill intended prosecution. It commonly, but not necessarily, means a prosecution on some charge of crime."
In a case reported as "Muhammad Yousaf v. Abdul Qayyu m" (PLD 2016 SC 478), the apex Court of the country has defined that "Malicious Prosecution" is a tort which provides redress to those who have been prosecuted "without reasonable cause" and with "malice'. Malicious prosecution is an action instituted with intention of injuring the other and without probable cause.
The Division Bench of this Court in a case "Ghulam Hussain and another vs. Muhammad Rafique & 06 others" (2015 MLD 1583) while interpreting "Malicious Prosecution" observed that "Malicious Prosecution" is the malicious institution of unsuccessful criminal proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge.
No doubt every person in the society has a right to set in motion Governmental and Judicial machinery for protection of his rights, but such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigation. Meaning thereby the institution of a criminal or civil proceeding for an improper purpose and without probable cause is not justifiable.
9. The person who claimed for compensation on account of malicious prosecution must also establish the connection between the reasonable and probable cause and the malice. For the purposes of bringing a claim for malicious prosecution the requirements of "absence of reasonable and probable cause" and malice' were separate requirements although they may be entwined. The proof of absence of reasonable and probable cause' must co-exist alongside malice'. It is commonplace that in order to succeed in an action for malicious prosecution the plaintiff must prove both that the defendant was activated by malice and that he had no reasonable and probable cause for prosecution. It is also by now a settled law that every 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.
In a case titled "Subedar (Retd) Fazle Rahim v. Rab Nawaz" (1999 SCMR 700) the Hon'ble Supreme Court observed as under:- "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 and probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."
10. "Reasonable and Probable cause" means an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that such person charged was probably guilty of the crime imputed. As laid down in Hicks v. Faulkner (1878) 8 QBD 167 and there must be:- i. An honest belief of the accuser in the guilt of the accused; ii. Such belief must be based on an honest conviction of the existence of the circumstances which led the accuser; iii. Isecondly mentioned belief as to existence of the circumstances must be based upon reasonable grounds that is such grounds, as would lead any fairly cautious man in the defendant's situation to belief so; iv. The circumstances so believed and relied on by the accused must be such as amount to a reasonable ground for belief in the guilt of the accused.
The element of probable and reasonable cause has been defined in case titled "Province of West Bangal and others v. S.M. Faruque and others" (PLD 1959 Dacca 268) in the following words:- "The law on the subject is well-settled. It is stated in Clerk and Lindsel on Torts, 9th Edition, p.662, that an individual should not be harassed by legal proceedings improperly instituted against him.
It is the right of every one to put the law in motion if he does so with the honest intention of protecting his own or public interest. But it is an abuse of that right to proceed maliciously and without reasonable and probable cause for anticipating success. Hence, the question is: What is meant by "reasonable and probable cause". "Reasonable and probable cause" means a genuine belief based on reasonable grounds that the proceedings are justified."
11. The term "malice" has been elaborated and defined in the authoritative judgment report 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 the 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 prosecution 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 defects of want of reasonable and probable cause cannot be supplied by evidence of malice-See Turner v. Ambler ((1847 10 Q B 352); 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 observations 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 vs. 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 Sing 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 persecutor."
In other words "Malice" means the presence of some improper and wrongful motive that is to say, some motive other than desire to bring to justice a person whom the prosecutor honestly believes to be guilty.
12. The existence of malicious itself is not sufficient to prove malicious prosecution but should be accompanied by proof of absence of reasonable and probable cause and the malice should be proved affirmatively. In a case titled "ABDUL RAUF v. ABDUL RAZZAK and another" (PLD 1994 Supreme Court 476) it was held as under:- "It is necessary that the malice should be proved affirmatively".
13. In the instant case admittedly the appellant preferred an appeal against the respondent contending therein that the land measuring 12 1/2 acres allotted to the respondent under Lambardari grant is a wrong allotment because the same land is reserved for "Charagah" and not available for any permanent allotment. Though his appeal as well as revision petition were dismissed but vide order dated 02.06.2014 passed by the District Collector, Mandi Bahauddin the land allotted to the respondent under Lambardari Scheme was cancelled on the ground that the land in dispute was not included in any scheduled land, so the land being a `Charagah' was not liable to be allotted to any person. It was further mentioned in the said order that the possession given to the lambardar was also illegal, so the District Collector directed the Assistant Collector, Malakwal to obtained vacant possession of the land which was vacated/released and in this regard Rapt No. 374 dated 05.06.2014 was entered in the register of Rapt Roznamcha Waqiati.
14. It is also pertinent to mention here that the respondent assailed the order of District Collector dated 02.06.2014 in Constitutional Petition bearing No.17614 of 2014 titled "Muhammad Asghar versus District Collector Mandi Bahauddin etc." In the said case it was reported that the department has already resumed the state land on 02.06.2014 and entire proceedings under Section 32 & 34 of the Colonization of Government Lands Act, 1912 have been completed and since 02.06.2014 the possession of the suit land is with the Government, therefore, the said Constitutional Petition was dismissed being not maintainable vide order of this Court dated 07.04.2017.
15. It is pertinent to mention here that from perusal of different Notifications issued by the Revenue hierarchy from time to time it is obvious that the `Charagah' lands have expressly been excluded from every grant, hence, its any alienation or grant of proprietary rights thereof are not inconsonance with the policy. Moreover, it is also an admitted fact that the `Charagah' land cannot be converted into state land for its onward allotment against any sort of claim and shall not be used for any other purpose except with the prior permission of the Board of Revenue. Change of character of the `Charagah' land was subservient to the manifestly described wider scope of public purpose. Admittedly the Charagah land was allotted to the respondent under Notification dated 17.01.2006 & 22.10.2007 against Lambardari Grants without changing its status and describing the public purposes. From perusal of notification dated 17.01.2006 shows that against Lambardari Grants the Colony Department has shown its willing to grant the state land on lease free of charge in the colony Districts in the Punjab alongwith other incentives, whereas, `Charagah Land' does not fall under the state land amenable to any allotment under the above said notification rather the same is beyond the jurisdiction of the subordinate hierarchy of Board of Revenue. Moreover, under Temporary Cultivation Lease Scheme and other Schemes, the `Charagah' land is expressly excluded from every grant of allotment, so the order for allotment of `Charagah' land passed by the District Officer (Revenue) Mandi Bahauddin was illegal and against the polices and also against the intention of the legislators who have formulated `Charagah' policy for the welfare of the public-at-large as well as the residents of the village. As the District Collector Mandi Bahauddin was not competent to allot Charagah's land under the policy without obtaining permission from the Board of Revenue, so, the order for allotment of land to the respondent under Lambardari grant is without lawful authority and was rightly cancelled and it is also very much clear that the appellant has rightly pointed out regarding wrong allotment of land to the respondent under Lambardari grant and his act was without any malice. In these circumstances, the appellant filed the appeal with a reasonable and probable cause and the proceedings initiated against the respondent is without any malice.
16. Moreover, the respondent failed to produce on record any medical prescription showing that he suffered any mental or physical torture due to above said litigation. He has also failed to bring on record any documents showing that he has spent a huge amount upon the litigation as expenses and that his reputation was damaged badly. Moreover, the respondent has not brought on record any proof with regard to his previous political rivalry with the appellant. Rather he himself knowingly got allotted the land of Charagah under the Lambardari scheme in connivance with the revenue officials.
17. It is matter of record that on 27.05.2016 learned counsel for the respondent got recorded his statement without oath and exhibited documents i.e. Exh.P-1 to Exh.P-25 as well as seven documents as Mark-P-1 to Mark-P.7. The respondent brought on record the documents through the statement of his learned counsel, which has no value in the eye of law because mere exhibition of the same is not required rather the same has to be proved and brought on record either by the parties themselves in their depositions on oath or through any of their witness while appearing in the witness box so as to have been subject to cross examination. Submission of such documents through statement of learned counsel without oath cannot be appreciated and cannot be considered in evidence. Reliance is placed on "Manzoor Hussain (deceased) through L.Rs., vs. Misri Khan" (PLD 2020 Supreme Court 749) and "Mst. AKHTAR SULTANA v. Major Retd.
MUZAFFAR KHAN MALIK through his legal heirs and others" (PLD 2021 Supreme Court 715), wherein it has been held that:- "35. Keeping in view the factual position as to the absence of the requisite certificate on the said certificate on the said certified copies of the foreign documents and their production in evidence in statement of the counsel without providing an opportunity to the respondents to test their authenticity, it would be safe to conclude that the alleged certified copies of the foreign document tendered in evidence did not cross the legal threshold of "admissibility" and "proof", as mandated under clause (5) of Article 89 of the Qanun-e-Shahadat"
Further reliance in this regard can safely be placed on judgment reported as "RUSTAM and others v. JEHANGIR (DECEASED) through L.Rs." (2023 SCMR 730), wherein it has been held as under: - "As regards the other two documents i.e. mutation No.1836 (Exh.D-9) and mutation No.1837 (Exh.D- 8), it is suffice to say that according to principle settled by this court in the cases reported as Mst.
Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604) and Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross- examination the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration."
18. It is evident from scanning the whole record of the case 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 respondent cannot be decreed in his favour as in the instant case the matter with regard to wrong allotment under the Lambardari scheme was pointed out by the appellant which was duly proved and as a consequence the allotment of the respondent under the said scheme was cancelled as the land was not reserved for allotment rather the same was reserved/declared as "Charagah" which was not available for allotment.
19. Since, the act of the appellant is proved as without any malice, so the respondent is not entitled to any damages on the basis of malicious prosecution because the prosecution was not based on malice rather the same was based on true facts. The revenue hierarchy also initiated proceedings against the delinquents officials involved in the said allotment in the name of the respondent.
20. In the light of above discussion it is very much clear that the learned trial Court has erred in law while deciding issue No.1 partially in favour of the respondent because it is proved that he got allotted the land reserved for "Charagah" dishonestly and this fact was rightly disclosed by the appellant and the land was resumed by the Revenue hierarchy, so the respondent is not entitled to any damages on malicious prosecution. Since the main issues is decided against the respondent- plaintiff, therefore, there is no need to discuss and decide the remaining issues, hence, the same are become redundant.
21. Epitome of above discussion is that the instant appeal is allowed and consequently the impugned judgment and decree dated 23.01.2023 is set aside. Resultantly, the suit of the respondent for the recovery of Rs.53,924,500/- on the basis of malicious prosecution is without any merits, hence, the same is dismissed. Parties are left to bear their own costs.