FAZAL KARIM, J.-This will dispose of R.SA.No.39 of 1966 by Syed Ghayyur Hussain Shah, plaintiff, and R.SA.No.40 of 1966 by Muhammad Shafique, plaintiff. The facts giving rise to them are as follows.
2. On 1.9.1961 Alamgir defendant lodged a first information report at P.S. Sadar Sheikhupura alleging that the accused persons Syed Ghayyur Hussain Shah (plaintiff) Raja Khush Bakhtur Rehman and Muhammad Shafique (plaintiff) had on 31.8.1961 in pursuance of a conspiracy to murder Muhammad Hanif defendant abducted him from a point at Lahore Sheikhupura road. The case was investigated and the allegations were found false and baseless. The police therefore recommended for the cancellation of the case and the FIR was cancelled by the Ilaqa Magistrate's order dated 18.4.1962.
3. Two suits for damages for malicious prosecution were brought;one by Syed Ghayyur Hussain Shah and the other by Muhammad Shafique According to the plaintiffs the truth of the matter was that no such incident of abduction had taken place;that in lodging the false report and in proceeding against them the defendants Gharib Alam Alamgir and Muhammad Hanif now respondents were actuated by malice and enmity and that as a result of this false prosecution the plaintiffs had suffered humiliation and set back to their reputation and fair fame. The plaintiffs belonged to a respectable family;the father of Syed Ghayyur Hussain Shah plaintiff had been an honour life Magistrate and as a result of this false prosecution Muhammad Shafique plaintiff had suffered so much in good fame that his engagement with his would be wife was broken.
4. The suits were contested by Gharib Alam and Muhammad Hanif defendants Alamgir defendant was exparte in his written statement Gharib Alam defendant merely denied the allegation that the case against the plaintiffs and their co-accused was a false case. Muhammad Hanif defendant admitted that the case was false and that it was the result of instigation of Gharib Alam,defendant.
He,however,denied that he had taken part in the prosecution of the plaintiffs and their co-accused.
5. On the parties pleadings the learned Civil Judge formulated the following issues:-
1. Whether defendant Nos.1 to 3 lodged a false and malicious prosecution against the plaintiff and then prosecuted him?
2. Whether the reputation of the plaintiff suffered damage on account of the said false and malicious prosecution and he sustained mental and financial loss?
3. Whether the plaintiff was entitled to any damage?If so what amount?
4. Relief.
6. By his elaborate and well considered judgments the learned Civil Judge found issue No. 1 in the plaintiffs' favour; in his opinion, "the prosecution had been lodged with absolutely no cause whatsoever It alone its being reasonable or probable. This is not the case of making a mountain out of a mole but is an example of a mountain out of nothing." As to issue No.2 the learned Civil Judge held that there was conclusive and cogent proof "that the plaintiff and his companions had not only incurred expenses to get themselves rid OF a false charge inflicted on them maliciously by defendant No. 1 (Gharib Alam ) but also suffered heavy monetary set back being practically unable to attend to his personal business on account of his continuous absence from his place and his mental shake up". It was clear to the learned Civil Judge that the plaintiffs and his companions had "actually suffered physically, socially, financially, mentally and psychologically".He, therefore, held the defendants Gharib Alam and Alamgir liable to pay Rs.5000/- as damages jointly and severally"in each suit.
7. Gharib Alam,defendant,appealed. Before the learned Additional District Judge it was argued that "even if the plaintiffs case is held to be correct. No decree for damages for malicious prosecution could be passed against him" because the plaintiff had not been arrested and had not been summoned by a Court. The learned Additional District Judge referred to certain precedent cases including Raja Braja Sunder Deb and others Vs. Bamdeb Das alias Pattanaik and others (AIR 1944 Privy Council 1) and held: "A perusal of these authorities shows that it has been held in very clear terms that where a report is made to the police in consequence of which no prosecution is lodged in a Court by the police it cannot be said that there was malicious prosecution."
For the opposite view. Muhammad Amin Vs Joeendra Kumar Bannerjee and others (AIR 1947 Privy Council 1081 and Nabir Shaha Vs. Shamsuddin and others (PLD 1964 Dacca 111) were cited before the learned Additional District Judge and he observed that in those cases the accused were discharged after being summoned in Court; in any case so observed the learned Additional District Judge, "it has been clearly laid down that if the matter does not reach the Court and the proceedings are dropped after investigation only. It cannot be said to be a case of malicious prosecution at the hands of the maker of the report".The learned Additional District Judge was,therefore unable to" subscribe to the view of the learned trial Judge that from the evidence on record a charge of malicious prosecution has been made out against the appellant".
8. The learned Additional District Judge then proceeded to consider the question whether "the present decree can be maintained as the decree for damages for slander and libel" and held that "there can be no doubt that the imputation of abduction with the intention to murder makes the appellant liable for damages for slander and libeT. The learned Additional District Judge was however of the view that the suit if it was treated to be a suit for slander and libel was barred by time. In his view Articles 24 and 25 of the Second Schedule to the Limitation Act applied to such a suit under those Articles the period of limitation was one year from the date of Ubel and slander and as in the present case the first information report was made on 1.9.1961 and the suit was instituted on 7.1.1963 it was "more than one year after the imputation".
9. In short the learned Additional District Judge was of the opinion that on the facts of the case,"no decree can be passed in favour of the plaintiff on the ground of malicious prosecution and that the present decree cannot be maintained as a decree for damages on ground of slander and libel because of the bar of limitation".
10. It ought to be mentioned here that but for this view of the law the learned Additional District Judge would have dismissed the appeals and maintained the decree of the learned Civil Judge for as regards the findings of fact that the plaintiffs had suffered damage as a result of the proceedings against them the learned Additional District Judge was in agreement with the learned Civil Judge that the circumstances of the case "go to show that false allegation was made against the plaintiffs and others about abduction of Muhammad Hanif at their hands" and that the plaintiffs had suffered "mentally and ill-repute" by the false allegations against them.
11. The first question that must be asked is whether the view of the law taken by the learned Additional District Judge is supportable by the precedent cases. For that purposed will be cantest to refer to the principles to be gleaned from three Privy Council cases. Nemelv^ilbhaddar Singh and another Vs. Badri Shah and another (AIR 1926 Privy Council 46) Raja Baraia Sunder Deb and others Vs. Barodeb Das alias Pattanaik and others (AIR 1944 Privy Council 1) and Muhammad Amin Vs Joeendra kumar Bannerjee and others (AIR 1947 Privy Council 108).Before considering the ratio decidendi of these cases it is well to mind two observations of a general character made by Lord Halsbury in Quinn Vs. Leathem (1901 A.C.495,506): "One is to repeat what I have very often said before that every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides! Entirely deny that it can be quoted for a proposition that may seem to follow logically from it."
12. In the first case (AIR 1926 Privy Council 46) the appellants before the Privy Council had been accused of the murder of one Sher Bakhsh As a result of an inquiry a Magistrate issued warrants for their arrest. The warrants could not be executed but when the case was taken up on the next day the Magistrate discharged the appellants who had without the execution of the warrants of arrest voluntarily appeared. When the case reached the Court of the District Judge some doubt arose whether this discharge was right and the summonses were issued to the appellants to appear before the District Judge. The District Judge again discharged the appellants "considering that there was no sufficient evidence to warrant their being put on their triaT. These facts were held to be sufficient for founding an action for malicious prosecution was held: "In any country where as in India prosecution is not private an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing And if that is done and trouble is caused an action will lie."
But as a result of the appraisement of the evidence the Privy Council found that "there is not sufficient certainty in this doubtful matter to find that the appellants have discharged the heavy onus laid upon them",namely that the story implicating the appellants had been invented.
13. In the second case (AIR 1944 Privy Council l),the question was whether the plaintiff Raja of Aul had a cause of action for malicious prosecution As regards him the first information report suggested that he was to a large extent responsible for the purchase of a girl for sexual intercourse^ a result of this information in the charge-sheet prepared by the police the Raja was noted as an accused not sent up for trial and in fact he was never sent up. No criminal proceedings were ever taken against him. It was in these circumstances held that he had no cause of action.
14. In the third case (AIR 1947 Privy Council 108),the facts were as follows An agreement was entered into between the appellant and respondent No. 1 whereby the appellant had agreed to sell certain property to a company which was formed by respondent No. 1. The appellant alleged that subsequently an oral agreement was made between himself and respondent No! Containing certain provisions which went beyond the written agreement. Respondent No.3 company was incorporated in order to carry out the purchase from the appellant and certain property was transferred by the appellant to the company Subsequcntly.The appellant took the view that the terms of the oral agreement which he had made with respondent No! Had not been carried out and accordingly he refused to transfer the rest of the property included in the sale to the company.
It was upon these facts that respondent No.2 acting on behalf of himself and respondents No! And 3 filed a complaint against the appellant in the Court of the Magistrate under Section 190 of the Cr.P.C; it was said that as the appellant had refused to deliver the remainder of the properties agreed to be sold he had committed an offence under section 420 of the Penal Code or section 406 of that Code. The charge was duly registered under section 420 of the Penal Code. The Magistrate having taken cognizance of the complaint, forwarded it to one Mr. Kukarji for inquiry and report under section 202 of the Cr.P.C. The Magistrate gave the appellant a notice of the complaint against him and informed him that the inquiry would be held on certain dates. Later,the inquiry was entrusted to one Mr. Peenraji;he too did not hold the inquiry. Thereupon the Magistrate himself held the inquiry in open Court. Notice of the inquiry was given to the appellant who attended with counsel. The Magistrate after inquiry concluded that no case of cheating or for the matter of that no criminal case of any nature was made out by the complainant and he dismissed the complaint under section 203 of the Cr.P.C After a survey of a large body of case law the Privy Council held: "The foundation of the action lies in abuse of the process oi me Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious without reasonable and probable cause that they terminated in his favour ( if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt CJ. In It Raym 374 that damages might be claimed in such an action under three heads,(1) damage to the .Person (2) damage to property and (3) damage to reputation and that rule has prevailed ever since. That the word 'prosecution' in the title of the action is not used in the technical sence which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings for instance falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company: (1888) 11 Q.B.D.674. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is as explained by Bowen LJ. In the last mentioned case that such a case does not necessarily and naturally involve damage to the party such civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him and he wall be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety or for extra costs incurred beyond those imposed on the unsuccessful paryt. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage and in such a case damage to reputation will be presumed.
From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found and action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious presecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion and no damage to the plaintiff results. But in this case the Magistrate took cognisance of the complaint examined the complaint on oath held an inquiry in open Court under S.202 which the plaintiff attended and at which as the learned Judge has found he incurred costs in defending him self. The plaint alleged the institution of criminal proceedings of a character necessarily involving damage to reputation and gave particulars of special damage alleged to have been suffered by the plaintiff. Their Lordships think that the action was well founded and on the findings at the trial the plaintiff is entitled to judgment."
15. It will be seen that in none of these cases was there prosecution in the technical sense. In the first case (AIR 1926 Privy Council 46) all that happened was that the appellants were summoned by the Magistrate through warrants of arrest and by the District Judge by summonses but the appellants had not been arrested: nor had they been proceeded against for the charge of the murder of Sher Bakhsh. In the second case there was only a suggestion in the first information report that Raja of Aul was responcible for the purchase of a girl for sexual intercourse; no proceedings of any Kind either before the Police or any Court appeal to have been held against him. In the third case (AIR 1947 Privy Council 108) the complaint had not gone beyond the stage of inquiry under section 202 of the Cr.P.C. Yet in the first as also in the third case the person responsible for the proceedings against the plaintiff would have been held liable for damages for malicious prosecution but for the fact that the evidence adduced was not sufficient to found the actions. As has been observed above the second case (AIR 1944 Privy Council 1) upon which the learned Additional District Judge had so heavily relied was a case in which there had been no proceedings whatever against the Raja of Aul. That case must therefore be held to be an authority for its own facts.
16. The principles deducible from these cases if I may venture to summarise them are that the word "prosecution" in the context of malicious prosecution is not to be understood in the technical sense which it bears in the criminal law; that the plaintiff is entitled to damages if he is able to prove that the proceedings whether civil or criminal were malicious and were instituted without reasonable and probable cause and that he has suffered damage As regards criminal proceedings involving scandal to reputation or possible loss of life or liberty to the plaintiff they do necessarily and naturally involve damage and in such cases damage to reputation will be presumed.
17. The real test therefore is not whether the label of prosecution applies to such proceedings;it is whether they "have reached a stage at which damage to the plaintiff results"As Lord Reid said in H.
West & Sons Ltd Vs Shepherd (1964)A.C326,342), "damages are awarded not to punish the wrong- doer but to compensate the man injured".
18. The true rule if I may say so with great respect which I would respectfully adopt was laid down in Naber Shaha Vs. Shams-ud-Din and others (PLD 1964 Dacca ll).The facts of that case have a close similarity to the facts of this case. There was a burglary in the house of Shams-ud-Din defendant; the latter's cousin Jalil-ul-Haq lodged an FIR in which he named the plaintiff as the person suspected to have some sort of connection with the theft and suspected thieves. On the basis of that first information report investigation was started and the house was searched by the Investigating Officer. Ultimately;the police submitted a final report under Section 173 of the Cr,P.C. and the FIR was cancelled. During the investigation the plaintiff being apprehensive of his arrest voluntarily surrendered and was allowed bail. On behalf of the plaintiff search and defamation were relied upon as grounds for damages and the question was whether "in a suit for damages for malicious prosecution the alleged defamation and defamatory statements which, according to the plaintiff lowered him down in the estimation of the public can be the basis for damages for defamation independently of the malicious prosecution of the purpose of determining the amount of damage." It was found that "whatever damages the plaintiff claimed were on account of false prosecution which impaired his reputation by defaming him in the eyes of the public and there is no separate cause of defamtion. If the plaintiff fails in establishing his case of malicious prosecution without reasonable and probable cause we do not think that he can claim in this suit compensation for defamation apart from malicious prosecution which was stated as a cause for damages for malicious prosecution." Regarding the question whether the information to the police which did not culminate in or reach the stage of prosecution could be called a prosecution for the purpose of an action for damages for malicious prosecution it was held: "Though the information to the police before it reached the stage of going before the Court cannot be technically called a prosecution within the meaning of the Code of Criminal Procedure but for the purpose of malicious prosecution any proceeding akin to prosecution is enough. If it is proved that there is no reasonable and probable cause for such a proceeding against the plaintiff and if it is malicious then certainty the person injured is entitled to the compensation".
19. But even if I am wrong in thinking that the Privy Council cases referred to above lend themselves to the view that the proceedings in this case amounted to malicious prosecution I should take this opportunity to re-examine the law so that it is modified "to bring it into closer accord with the changed conditions in which it falls to be applied today".In so doing I feel encouraged by the guidance to be gained from the decision in a recent case, namelv. Muhammad Akram Vs. Farman Bi of my learned brother Gul Zarin Kiyani J (reported as PLD 1989 Lahore 200) and affirmed by the Supreme Court (reported as PLD 1990 S.C.28).
20. First a word about the English Common Law for it was said in Muhammad Amin Vs Jogehar Kumar Bannerjee (AIR 1947 P.C.108) that the action for damages for malicious prosecution is part of that law.
21. The English Common law is the national law of England. It has developed on a case to case basis gradually in response to the pressures of particular situations the teachings of experience the guidance of ideal and general principles and the influences of legislation.(Cornelius C J. In Abdul Ala Maudoodi case PLD 1964 S.C.673).Before independence the English Common law was applied in India first because the Government of India Act,1935 expressly provided that the law declared by any judgment of the Privy Council was binding on and should be followed by all Courts in British India and secondly in the guise of the principle of "equity justice and good conscience".Though the Privy Council decisions are still held entitled to great respect yet both these basis have long ceased to be valid in Pakistan. We are governed by a Written Constitution;and have an ideology based on the religion of Islam. Common law of England is not and cannot be, the Common law or the national law of Pakistan. It was held by the Supreme Court in Muhammad Akram Vs. Farman Bi that a suit for malicious prosecution is a suit of a civil nature within the meaning of Section 9 of the Code of Civil Procedure and that makes resort to the Common law of England unnecessary As regards the question whether the rule of Common law of England as laid down in Muhammad Amins case can be pressed into service as an implied bar it was held: 'The resort to a rule of Common law of England in preference to the one of Pakistan law or a rule of Islamic law or jurisprudence;or for that matter the Islam Common law is not now possible under the Pakistan Constitutional legal set up".
22. The common law of any country must almost invariably march in step with common sense; it must accommodate to borrow that classic phrase of Holmes to "the felt necessities of the times".For it is a manifestation of an eternal struggle between constancy and change;a struggle between past reason and present needs As was said in a recent English case Namely MacShannon Vs. Rockware Ltd (1978) 1 All ER 625 at 629): The progress of the Common law is gradual. It is undertaken step by step as what has been stated in previous precedent to be the law is reexamined and modified so as to bring it into closer accord with the changed conditions in which it falls to be applied today".
23. Thus historical continuity is neither a legal duty nor a necessity for us; nor should respect for the decisions of the Privy Council degenerate into mechanical slavery. We can therefore take the English common law fr6m where it left OF in 1947 and develope and modify it so as to "bring it into closer accord with the changed conditions in which it falls to be applied today", or to put it in another was to bring it into accord with the genius of our own law.
24. The genius of our law is enshrined in the Constitution and os that there is no doubt about it the Constitution is written. The preamble of the Constitution declares it to be the will of the people of Pakistan to establish an order wherein among others the principles of democracy,freedom equality tolerance and social justice as enunciated by Islam shall be fully obseved and the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and wherein shall be guaranteed fundamental rights including equality of status of opportunity and before law social economic and political justice and freedom of thought, expression, belief, faith, worship and association subject to law and public morality. By Article 4 of the Constitution it is the inalienable right of very citizen to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life liberty body requtation or property of any person shall be taken except in accordance with law Article 14 of the Constitution guarantees the dignity of man, and ,subject to law the privacy of home.
25. Good reputation or fair name is a basic right of a citizen in Islam.(Muhammad Akram Vs. Farman Bi-PLD 1990 S.C.28.39).
26. As Article 4 of the Constitution forbids any action detrimental to the life liberty body reputation or property of any person to be taken except in accordance with law it should follow logically that if any such action is taken and it is not in accordance with law damage will be presumed it is plain that a person may as well suffer by an action detrimental to his life liberty body reputation or property which is not in accordance with law in proceedings in Court as in proceedings before an executive or administrative authority. In the context of the Constitution therefore it is no more necessary to hedge in an action for damages for malicious prosecution by the condition that the action was an abuse of the "process of the Court Mt will in my opinion be more in consonance with the genius of the Constitution^Articles 4 and 14 in particular to say that the foundation of the action for damages for malicious prosecution lies not in the abuse of the process of the Court but in the abuse of the process of law. For,if we bear in mind the stark realities of life. It should appear plainly that proceedings before the police afford a stronger ground for an action for malicious prosecution than proceedings in Court of law,for it an unfortunate fact that as things are, human dignity suffers or is likely to suffer more at the hands of the police than in a Court of law.
27. I would hold therefore that if a plaintiff is able to prove that he was proceeded against by the defendant that the proceedings were malicious without reasonable and probable cause that they terminated in his favour (if that be possible) and that the proceedings had resulted in damage to his person preperty of reputation then he should recover damages whether the proceedings before a civil Court before the police or before a criminal Court.
28. It has seen above that all these ingredients were fully established in this case. In the result I would hold that the decrees of the learned Civil Judge were wrongly set aside by the learned Additional District Judge.
29. The tort feaser. Gharib Alam has dies and this raises the question whether the suits as well as the appeals have abated. It is argued that the maxim that applies in such cases is that personal actions die with the person. It will in this behalf be sufficient to refer to Mahant Saliq Ram W&.Charam Dass and another (AIR 1939 Lahore 492),in which the legal position was summarised as follows: "It is no doubt true that the right to get compensation for malicious prosecution is personal to the person wronged and to such a right the maxim action personalis moritur cum personal personal right of action dies with the person) fully applies. If therefore such person dies before suing the wrong doer his heirs executors or administrator cannot after his death maintain an action for the same relief against the wrong doer. In such a case clearly there is a discharge of the tort by the death of the person wronged and the wrong doer is released from all liability for his tortious act. It is equally clear that if the injured person had brought a suit in his life-time but had died before a decree had been passed in his favour the suit would have abated and his legal representatives could not have continued the suit after his death for the 'right to sue' in such a case being personal to the deceased did not 'survive' (0.22,R.I Civil P.O.).The position however is different when the suit had been decided in the plaintiffs lifetime and a decree passed in his favour granting him compensalion. On the passing of the decree there is no longer an action personalis in existence; it has passed into a judgment and become a matter of record (transit in rem judicature)The original personal claim has merged in the decree of the Court and as such its character has entirely changed. The quondam plaintiff as the decree-holder has acquired the right to realize the amount decreed from the judgment-debtor and this is a right of an entirely different character. He may enforce it himself by process of law or (unlike the original claim),he may assign it to a third party who can execute the decree. Further the decree itself (also unlike the original claim) is liable to attachment by a creditor of the decree- holder. It has to all intents and purposes become a part of the 'property' of the decree holder and on his death it devolves as part of his estate on his heirs executors or administrators and they can execute it in the same manner as he would have done if alive."
30. Learned counsel for the respondents also strongly relied upon Maniramlala Baliramlala Vs Mst.
Chattibai & another (AIR 1937 Nagpur 216) for his contention that as the decree in the plaintiffs favour was set aside by the First Appellate Court the death of Gharib Alam has resulted in the abatement of this appeal against him. In that case, the plaintiff was awarded a decree for Rs.400/- .On appeal the decree was reversed and the plaintiffs suit was dismissed. The plaintiff preferred a second appeal when the defendant died. The defendant's legal representatives raised the objection that the right to sue did not survive and that the appeal had abated. It was held that "it is clear law that an action for defamation is a personal one and if the defendant had died during the course of the original trial the case would undoubtedly have abated........ The matter is undoubtedly transit in rent judicial, but the first decree has been wiped out by the appellate decree which grants no relief to the present appellant and imposed no liability on him except for payment of costs".It was also held that the plaintiff in such a case was practically in the position in which he was before he started the litigation so far as his claim was concerned;"in such a case there seems no valid reason why the litigation should not rest".
31. Now there are in my opinion a number of reasons for holding that the appeals have not abated.
The first is that the maxim that personal actions die with the person is a Roman maxim of doubtful origin. As has been said by that great author Sir Frederick Pollock in his book."The Genius of the Common Law" the maxim has no authority to support it. This is what he has to say on the subject: "Most unluckily some one got hold of a supposed Roman maxim for which there is really no authority that 'personal actions die with the person'. By further ill luck an opinion for which classical Roman warrant does exist came to reinforce this pretended authority the opinion that a free man's life is incapable of pecuniary valuation. It is a i.e ethical observation but I venture to think inappropriate in the field of legal justice. In the result the Common Law was saddled with the rule that the death of a human being cannot give rise to a civil cause of action,one of the most foolish rules if I dare say so, that have ever been adopted by the Courts of a civilized country;and we have to learn for law that except for statutory exceptions and apart from criminal liability a man wounds or disables another at his peril but may kill him outright with impunity".
32. I cannot therefore see any reason and none was suggested why we should import such a maxim into our law particularly when instead of advancing the cause of justice it has the effect of depriving the legal heirs of a plaintiff of their right to recover damages. It is common knowledge that if a man is subjected to false and malicious prosecution the object is to persecute and harass not only that man but his dependants and family members also. Thus,the resulting damage is not confined to that man;the entire family suffers. I therefore in thinking that the action is personal to the plaintiff and the defendant and it dies with them.
33. One of the objects of actions for damages for malicious prosecution is "to discourage the preversion of the machinery of justice for an improper purpose"and it would be scandalous to say that though the entire family has suffered humiliation mental torture as well as financially yet death of the plaintiff or the defendant puts an end to the action.
34. There is then the well known maxim an act of the Court shall prejudice no man which is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
Herbert Broom in his well known book on "Legal Maxim",says: "In virtue of it where a case stands over for argument on account of the multiplicity of business in the Court or for judgment from the intricacy of question the party ought not to be prejudiced by that delay but should be allowed to enter up his judgment retrospectively to meet the justice of the case;and therefore if one party to an action die during a curia advisatory Judgment may be entered nunc pro tunc for the delay is the act of the Court for which neither party should suffer".
This maxim of justice and good sense applies to the facts of this case in this way that a decree for damages had been passed in the plaintiffs favour and if the learned Additional District Judge had not proceeded on a wrong view of the law the decree would have been maintained. This appeal was instituted as far back as May,1966. Gharib Alam defendant died recently and if this appeal had been decided within a reasonable time of its institution the situation with which we are confronted as a result of the death of Gharib Alam, would not have arisen. It is obvious that the appellants are, in no way, to blame for the delay in the decision of these appeals and it will therefore be wholly unjust to punish them for something for which they are not responsible at all As has been seen above. It was not on the merits of the case that the learned Additional District Judge reversed the decree of the learned Civil Judge. He would have dismissed Gharib Alam's appeals but for the wrong view of the law which led him to hold that the facts of the case did not amount to malicious prosecution.
35. The last and the most important reason is that the so-called maxim that personal actions die with the person is repugnant to the spirit and the common-sense principles underlying the law of Islam. The rule of the English Common law that the death of a human being cannot give rise to a civil cause of action is based upon the principle that a dead-man cannot be compensated. What it fails to take into account is that if the dead-man cannot be compensated his dependants who had suffered with him can be compensated. In sharp contrast to this view Islam allows the victim and his heirs even in cases of serious crimes to accept monetary or other compensation from the criminal and the State "must to its best assist them in achieving their object and in appropriately exercising their rights".(Per Shafi-ur-Rehman J in Federation of Pakistan Vs. Gul Hassan Khan - PLD 1989 S.C. 633,684).The hoary fallacy from which the common law suffers must therefore give way to one of the first principles of the Islamic Law that a dead-man's heirs are in appropriate case entitled to be compensated.
36. For these reasons the appeals are accepted the judgments and decrees of the learned Additional District Judge dated 21.9.1965 are set aside and the judgments and decrees of the learned Civil Judge dated 25.5.1964 are restored. In the circumstances of the case and view of the time that has elapsed since the filing of these appeals the parties are left to bear their own costs.