1. ' WALI MUHAMMAD KHAN, J.---Muhammad Yjusaf, appellant herein, through leave of the Court, calls in question the judgment dated 20-6-1990 passed by a learned Single Judge of the Lahore High Court, whereby R.SA. No,39 of 1966 filed by Syed Ghayyur Hussain Shah, respondent No,1 in Civil Appeal No,104 of 1991, and R.SA. No,40 of 1966 filed by Muhammad Shafiq, respondent No,1 in Civil Appeal No,105 of 1991, were accepted, the judgments and decrees of the learned Additional District Judge, dated 21-9-1965 were set aside and judgments and decrees of the learned Civil Judge dated 25-5-1964 decreeing the suit of Syed Ghayyur Hussain Shah plaintiff/respondent and Muhammad Shafiq plaintiff of the connected case against Gharib Alam, his predecessor-in- interest, and Alamgir defendant, were restored. The operative part of the leave granting order reads as follows:--- "Having heard the arguments of the learned counsel for the petitioners, we grant leave in both the petitions to consider inter alia the following questions:
(1) Whether the facts and circumstances of the cases gave any cause of action against the tortfeasor for damages for malicious prosecution or for libel?
(2) Whether any cause of action claiming damages for wrong done to any person survives against the tortfeasor after his death, or conversely survives to the heirs of the person wronged after his death against the tortfeasor?
(3) Whether a suit for damages can be decided under any other concept of law, apart from English common law, without there being legislation giving it retrospective effect and whether the lis is subject to English Common Law?
(4) Whether theory of Islamic Criminal Law and its concept for compensation to the heirs of deceased can be imported while interpreting civil liabilities, under the decree of any Court by analogy?
(5) Whether liabilitry accruing out of the present suit can be deemed a charge on the estate of the deceased tortfeasor for which his heirs can be held responsible under the Muslim Law?
(6) Whether the appeal abated against Gharib Alam as he died in 1975, when there existed no decree against him?"
2. ' The facts of the case from which the instant appeals have arisen are that Syed Ghayyur Hussain Shah plaintiff/respondent filed a suit for recovery of Rs,5,000 as damages against Gharib Alam, predecessor-in-interest of the appellant, and Alamgir on account of damages sustained by him as a result of his malicious prosecution on the complaint of Alamgir defendant No,2 at the instigation of Gharib Alam, predecessor-in-interest of the appellant. The suit was duly contested, necessary issues arising out of the pleadings of the parties were framed, evidence led pro and contra thereon recorded, and the learned trial Judge, vide his judgment and decree dated 25-5-1964 decreed the suit against defendants 1 and 2 jointly and severally, whereas the suit against Muhammad Hanif defendant No,3 was dismissed. Gharib Alam preferred appeal before the learned District Judge, who, vide his judgment dated 21-9-1965, held that no decree could be passed in favour of the plaintiff on the ground of malicious prosecution and that the decree impugned before him could not be maintained as a decree for damages on the ground of slander and libel because of the bar of limitation and, in consequence, accepted the appeal, set aside the judgment and decree of the trial Court, and dismissed the suit of the plaintiff. This led to the filing of the instant R.S.A. By Syed Ghayyur Hussain Shah plaintiff against Gharib Alam defendant, since dead represented by Muhammad Yousaf appellant, which was accepted through the impugned order and hence the instant appeals through leave of the Court.
3. ' We have heard Mr. M. Zafar Chaudhry, Advocate, for the appellant, Mr. Ejaz Ahmad Khan, Advocate-on-Record, for the respondents and have perused the record of the case.
4. ' The learned counsel for the appellant reiterated the arguments recorded in the judgment of the first appellate Court and submitted that there is no statutory law in the field governing the cases of malicious prosecution and empowering the Courts to award damages therefor, and that in the determination of such disputes principles of English common law are followed. He added that the suit in case of treating the allegation as amounting to libel or slander is time-barred and that the judgment of the first appellate Court being in accordance with the law was not open to interference by the High Court, and that the impugned judgment of High Court suffers from legal infirmity and needs setting aside. When he was posed a question that if there is no statutory law governing the cases of malicious prosecution whether the act of false complaint by the plaintiff/respondent is permissible under Islamic law and immune from being made the basis for action against the tortfeasor in a Court of law. He was confronted with the judicial pronouncements in this respect in the case of Haji Nizam Khan v. Additional District Judge, Lyallpur PLD 1976 Lah. 930 and that of Muhammad Bashir v. The State PLD 1982 SC 139 in which, after thorough analysis and consideration of legal, Constitutional and Islamic laws, it was positively held that all residuary law in Pakistan to be applied in fields other than those occupied by existing statutory law has to be Muslim Law and jurisprudence and philosophy underlying the same. He candidly conceded that in Muslim society prosecuting innocent persons maliciously is not permitted and, in consequence, the aggrieved person can have recourse to Courts in Pakistan who were not only Courts of law but justice, equity and good conscience as well. We appreciate the fair attitude of the learned counsel for the appellant in assisting the Court to arrive at a just conclusion.
5. All the three Courts below have come to the conclusion as a fact that the prosecution of the plaintiff was without any foundation and intentionally initiate 1 to persecute and harass him to harm his reputation and to subject him to mental agony and torture and lower him down in the eyes of public. In the presence of these factual findings, we have no other option but to hold that he was rightly awarded damages by the trial Court, maintained by the High Court and their decisions are not exceptionable.
6. As regards the question of limitation, suffice it to say, that the Article applicable in the situation like the one in hand would be residuary Article 120 of the Limitation Act under which the period of limitation is provided for as six years from the date of accrual of cause of action and applying the said Article the suit was obviously within time.
7. As regards the contention of the learned counsel for the appellant that the tortfeasor having died the cause of action died with him and his heirs are not liable for the personal wrongful act committed by him, we are afraid, the arguments are not legally entertainable inasmuch as the tortfeasor was not only alive at the time of the initiation of the proceedings against him in a competent Court of law but was alive at the time of the passing of the decree by the trial Court as well. His death thereafter could not take away the right of the decree-holder to proceed for the recovery of the decretal amount against his property under the ordinary law as well as under the principles of Muslim law. In this respect para. 43 of Muhammadan Law by D.F. Mulla (1981 Edition) can be referred to, according to which the heirs of the deceased are liable to pay all the debts and liabilities of their deceased predecessor to the extent of share of the debts proportionate to his share of the estate inherited by them. In this view of the matter, we agree that the appellant is not personally liable for payment of the decretal amount but he is bound to pay the proportionate share of the same to the extent of the estate inherited by him from the deceased judgment- debtor.
8. ' Accordingly, the judgment of the lower Court is modified to the extent that the amount of decree passed against Gharib Alam, predecessor-in-interest of the appellant, shall be a charge on the property in the hands of his heirs/successors and if his heirs do not pay it, it shall be recoverable from such property. The decree against Alamgir shall remain intact. The finding of the trial Court and the High Court that the decree shall be joint and several is also maintained. With the above modification regarding the decree against Gharib Alam deceased/defendant, both the appeals are dismissed.