Abdul Usman plaintiff-respondent herein instituted a suit for the recovery of Rs.24,000 as damages as per detail furnished in the complaint, for malicious prosecution against the defendant- petitioner herein. The suit was at the first instance decreed ex parte but later, on the application of the respondent, the same was set aside on payment of cost of Rs.150 as per order of the trial Court dated 7-9-1983. The suit was contested and pleadings of the parties gave rise to the following issues:- (1)Whether the plaintiff has got cause of action?
(2)Whether the suit is time-barred?
(3)Whether the suit is bad for non-payment of court-fee?
(4)Whether criminal suit No.153 under section 406/418/420 lodged by the defendant against the plaintiff was with mala fide intention, if so, to what extent the plaintiff was degraded, caused him mental torture and monetary loss?
To what relief the plaintiff is entitled?
The learned trial Court, after recording such evidence as was produced by the parties in support of their respective pleadings, dismissed the suit vide its judgment dated 29-4-1985.
2. Aggrieved thereby, the respondent herein filed an appeal and his suit was decreed as per judgment of the learned District Judge Mansehra, dated 9-2-1986. Hence this revision petition.
3. I have heard Qazi Shamsuddin Advocate learned counsel for the petitioner and Qazi Abdur Rashid Advocate learned counsel for the respondent and also perused the record of the case with considerable degree of care.
4. It is contended on behalf of the petitioner that the complaint lodged by the petitioner against the respondent was bona fide; that the respondent failed to substantiate the element of malice in the criminal proceedings initiated by the petitioner and that he had a reasonable cause to press into service with the only bona fide mistake that he selected a wrong forum inasmuch as his civil suit for the same amount and on the same ground has been decreed by the learned District Judge, Mansehra vide his judgment dated 10-6-1984. He cited at the bar PLD 1975 Lah. 12, 1984 CLC 325, PLD 1970 Kar. 345 and AIR 1940 Oudh. 318 in support of his submissions.
5. As against this the learned counsel for the respondent, while supporting the impugned judgment of the learned District Judge, maintained that mere good cause to succeed before the civil Court cannot be made as a ground for getting exonerated from the malicious prosecution initiated by the petitioner inasmuch as the said proceedings were initiated, in the background of enmity developed between the parties and for a matter which was essentially civil in nature. The learned counsel thus contended that the criminal proceedings in the Court of Magistrate against the respondent were mala fide with ill designs and deliberate action on the part of the petitioner to malign him. He, therefore, defended the suit of the respondent claiming damages against the petitioner and the consequent degree passed in his favour on this score. He relied on AIR 1926 Privy Council page 46.
6. A reference to the plaint reveals that the petitioner filed a complaint against respondent on 14- 5-1980 before a local Magistrate, Mansehra under section 406/418/420 PPC alleging therein that the parties were on visiting terms with each other; that the respondent had agreed to give the - hand of his daughter Mst. Hamida Jabin to the petitioner; that the respondent received some amount from time to time as loan and remitted him a total sum of Rs.14,500 through bank drafts from Saudi Arabia where he had gone and was employed; but on his return, on his demand, the respondent refused to re-pay the amount. The parties were also proceeded against under sections 107 and 151 C.P.C. And bound down. He, therefore, prayed that the respondent Abdul Usman be suitably punished.
7. It transpires that the learned Magistrate after recording his statement, referred the complaint to the local police under section 202 C.P.C. And on receiving the report, the respondent was summoned for 6-11-1980 on which date a formal charge was framed by the learned Magistrate.
8. Feeling aggrieved, respondent invoked the inherent powers of this Court under section 561-A Cr.P.C. And my brother Fazal Elahi Khan J, finding the criminal proceedings as totally illegal and misconceived, quashed the proceedings vide his order dated 28-8-1982.
9. It will be interesting to note that meanwhile on 29-2-1983, the petitioner had instituted a suit for the recovery of the remitted amount alongwith the value of certain other articles amounting to a total sum of Rs.20,740 in the Court of Civil Judge, Mansehra. While this suit was still pending and after the criminal proceedings stood quashed on 28-8-1982, the present suit was filed by the plaintiff-respondent Abdul Usman on 12-2-1983 claiming the damages for his malicious prosecution on the part of the petitioner. Again while the petitioner's suit for the recovery was dismissed by the trial Court on 7-4-1983, in appeal his suit was decreed on 10-6-1984. The instant suit filed on 29-4-1985 was also dismissed by the trial Court but was decreed by the District Judge on 9-2-1986. The revision petition filed by Abdul Usman in the recovery case No.295/85 and the present revision petition (No.36/86) came up for hearing on 18-10-1989. I may state at this stage that the revision petition in the recovery case was accepted vide my judgment dated 18-10-1989, but the judgment in this case was reserved due to intricate questions of fact and law involved therein.
10. I have given my serious considerations to the submissions made by the learned counsel for the parties in support of their pleas.
11. The question, therefore, that falls for determination in this case is as to whether the respondent has succeeded in proving his allegation that his prosecution by the petitioner was malicious in nature?
12. It may be pointed out that in order to succeed in an action of malicious prosecution the plaintiff is required to establish:- (1)that he was prosecuted by the defendant.
(2)that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating.
(3)that the prosecution was instituted against him without reasonable or probable cause, and (4)that it was due to a malicious intention of the defendant and not with the intention of carrying the law into effect.
It is not disputed that the first two requirements in the action for malicious prosecution are fulfilled in the instant case inasmuch as not only the factum of the 'prosecution is not denied by the petitioner but it is also a matter of record that the proceedings complained of, terminated in favour of the plaintiff and from their nature they were capable of so terminating for an obvious reason that the nature thereof, by no stretch of imagination, could be considered as criminal and were quashed by the High Court in exercise of its inherent powers under section 561-A Cr.P.C.
13. Regarding the remaining two constituents of malicious prosecution, the contention of the learned counsel for the petitioner is that the plaintiff-- respondent has failed to prove conclusively that there was an absence of reasonable and probable cause or that the complaint was brought with a malicious intention.
14. A reference to the judgment of the learned trial Court indicates that on issue No.4 the plaintiff has failed to bring such evidence on the record as to have proved that the complaint was baseless or mala fide. He also opined that since the criminal proceedings were quashed on technical grounds, it cannot give rise to a presumption that the same was with a mala fide intention on the part of the petitioner.
15. On the other hand the learned appellate Court has been of the view that despite the proceedings having been struck down by the High Court on technical ground, it cannot be denied that the machinery was put into motion by the complainant, nor did the learned District Judge think that a decree on the same facts having been granted in favour of the petitioner could justify a criminal complaint. In his view, the parties were inimical on account of serious litigations, civil as well as criminal and in this background of enmity, he found that the petitioner prosecuted the respondent in a criminal Court rather unjustifiably for a matter which fell exclusively within the jurisdiction of the civil Court and presumably with malicious intention.
16. A reference to the evidence need also to be made in order to determine the remaining two factors in an action for malicious prosecution. Giving the background of his present suit, Abdul Usman plaintiff-respondent has stated that the petitioner and his son Nahid Khan both were employed in a company in Saudi Arabia as driver and technician respectively and that since his son was serving far away in the desert and had no occasion to come to the town, he was remitting money through defendant though in his own name. He further stated that the petitioner and his son Nahid Khan stayed at Lahore on their way back from Saudi Arabia and the petitioner took away Naheed Khan's Identity Card, Driving Licence and Passport with his visa and on reaching the home town, petitioner conveyed his desire for marriage to his daughter which the plaintiff-respondent refused inasmuch as the petitioner already had a were and 5 children. Abdul Usman thus alleged that in order to exert undue pressure on him, the petitioner first brought a suit for restitution of conjugal rights against his daughter, besides withholding the passport documents of his son and finally initiated criminal proceedings against him under sections 406/418/420 P.P.C. Which respondent ultimately got quashed from the High Court.
17. As against this an attorney of the petitioner namely, Daud Khan appeared in his defence claiming that the complaint against the respondent was filed by the petitioner with bona fide intention though he showed his ignorance that the petitioner had with held the passport documents of Nahid Khan and filed the complaint in order to pressurise the respondent to agree to the marriage of his daughter with the petitioner.
18. Briefly reproducing the main features of the whole evidence brought on the record by the parties would indicate that whereas the petitioner's real object of the: whole exercise of these litigations throughout has been to achieve his object of getting the hand of Mst. Hamida Jabin, the fact remained that despite his having filed a suit for recovery of the disputed amount in the Court of Civil Judge, Mansehra on 19-2-1981, he took no steps whatsoever to withdraw his complaint, when a petition was filed in the High Court under section 561-A Cr.P.C. Or, for that matter, even till 28-3-1982 when it was finally quashed by the High Court. These circumstances give rise to a legitimate assumption, founded on cogent grounds, that not only there was no reasonable or probable cause available to the petitioner to initially file a complaint against the respondent, more particularly when the facts of the case, even if assumed to be true did not constitute the offence which the respondent was charged with and if he had done so inadvertently, he failed to withdraw it till it was struck down; but also that the complaint was brought with no other intention but blended with malice and with no such intention at all as to carry the law into effect. And I have no hesitation in holding so.
19. Let it be borne in mind that if a person initiates criminal proceedings against another, in a matter which, from its very nature, he reasonably believes as a man of ordinary prudence, does not constitute a criminal offence and rests exclusively with a civil Court to adjudicate upon; such action of his shall be g deemed as prosecution without reasonable and probable cause and as such malicious in nature. Such a situation shall furnish the person prosecuting a legitimate cause of action to sue the complainant successfully for damages therefore. The case in hand is the most apt example of the aforesaid proposition.
20. In this context of the matter, the learned appellate Court was right in setting aside the judgment of the trial Court and decreeing the suit of the respondent against the petitioner.
21. Resultantly while I dismiss the revision petition, I maintain the impugned judgment of the learned appellate Court whereby the suit of the plaintiff --respondent stands decreed. The parties are, however, left to bear their own costs.