1. ' Applicant Shakeel Ahmed has filed this Civil Revision against the judgment and the decree passed in Civil Appeal No, 128 of 1987 by 1st Additional District Judge, Karachi East, maintaining the judgment and the decree by which Suit No, 2901 of 1985 was dismissed on 30-8-1987 by Vith Senior Civil Judge, Karachi East.
2. ' According to the plaint, on 27-10-1983 respondent Ashfaq Ahmed made a false and malicious report at Police Station Korangi, alleging apprehension of breach of peace at hands of applicant Shakil Ahmed, owing to an alleged fight/quarrel said to have taken place on 26-10-1983. On the basis of said report, police initiated proceedings under section 107, Cr.P.C. Against the applicant.
3. Later on the applicant was sent up in Court of the S.D.M. Civil Lines, Karachi to face proceedings under section 107, Cr.P.C. Said proceedings culminated, in discharge of the applicant under section 119, Cr.P.C. Hence the suit.
4. ' In his Suit No, 2901 of 1985, the applicant claimed from the respondent Rs,5,000 for mental torture, Rs,3,000 for bodily infirmity and pain, Rs,4,000 for loss in health, Rs,5,000 for loss in future prospects and Rs,5,000 for expenses incurred on the litigation. It was alleged that real prosecutor of the applicant was the respondent, who misled the police, by lodging false report/information which resulted in malicious and unreasonable prosecution of the respondent. Prior to filing of the suit a legal notice dated 16-11-1985 was given to the respondent.
5. ' The suit was contested by the respondent who in his written statement averred that he reported against the applicant because the latter was causing breach of peace. Respondent admitted that the police after due enquiry arrested the applicant, under section 151 of Cr.P.C., to avoid breach of peace at his hands and sent him up in Court, where he was given notice under section 112, Cr.P.C.
6. To show cause as to why he should not be bound down to maintain peace. It was admitted that the applicant was discharged under section 119, Cr.P.C. After expiry of the period mentioned in the order passed under section 112, Cr.P.C. It was added that the applicant was sent up and prosecuted by the police, after due investigation and that if he has suffered any loss or torture, it was due to his activities against the respondent, and as such he was not entitled to damages from the respondent. Respondent denied if he falsely reported against the applicant. It was denied if the applicant suffered any loss or torture.
7. ' On the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the plaintiff was prosecuted by the defendant without any cause mala fidcly?
(2) Whether the plaintiff is entitled to recover the suit amount as damages?
(3) What should the decree be?
8. ' After recording evidence of the parties, the trial Court under the judgment dated 30-8-1987, dismissed the suit with costs, after finding first two issues in the negative.
9. ' Aggrieved by dismissal of his suit, the applicant filed Civil Appeal No, 128/87 which was heard by Ist Additional District Judge, Karachi East, with connected Civil Appeal No, 127/87 filed by Raees Ahmad against the same respondent. Under the impugned judgment and the decree, learned Additional District Judge dismissed both the appeals, with no orders as to costs. Hence this Revision Application.
10. ' For applicant Shakeel Ahmed his father Races Ahmed appeared in person and argued the case.
11. He contended that his son's prosecution had lowered latter's honour and reputation and it was mala fide and unjustified. Raees Ahmad referred to the written arguments filed in the case. In the written arguments filed in the case it was stated that due to his prosecution, the applicant suffered mental and physical torture besides undergoing expenses. That the applicant attended the trial Court on various dates for one year. That a non-bailable warrant was issued for arrest of the applicant. It was pointed out that the respondent in his evidence before the SDM on 4-4-1984 gave date of the incident as 20-2-1984, although it was 26-10-1983 as per the police report. It was added that theoretically, the prosecution against the applicant was conducted in name of the State but the State had acted due to reporting of the matter mala fidely by the respondent to police.
12. According to father of the applicant all the essential ingredients for claiming damages for malicious prosecution had been brought on record. Critcising judgment of the trial Court the applicant's father submitted that first two issues were dealt with together and reliance on PLD 1972 SC 74 was unnecessary. It was added that the respondent was an old school teacher and was brother of one Ishtiaq who commanded influence. In support the applicant cited the cases of:
(i) Balbhaddar Singh and another v. Badri Shah and another (AIR 1926 PC 46).
(ii) Gaya Prasad v. Bhagat Singh (30 ILR Allahabad Series 525). None appeared for the respondent who was called absent.
13. ' In an action for malicious prosecution the plaintiff has to prove that he was prosecuted by the defendant, that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating, that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention of the defendant, and not with a mere intention of carrying the law into effect, as observed by the Privy Council in the case of Balbhaddar Singh and another v. Badri Shah and another (AIR 1926 PC 46). In the same case it was also observed that giving information to the authorities leading to prosecution of a person, is just the same thing as initiating prosecution. In the case of Gaya Prasad v. Bhagat Singh (ILR 30 Allahabad 525) it was held that foundation of the action for malicious prosecution.Is malice, which may be shown at any time in the Court of inquiry. In said case defendants' names did not appear in the face of the proceedings, except as witnesses, but they produced false witnesses to support the charge at the stage of investigation by police that the plaintiff had joined the riot and they took principal part in the conduct of the case in the Magistrate's Court and had instructed the counsel appearing for the prosecution and had done all they could to procure conviction of the plaintiff who was however acquitted and it was held that the defendants were rightly found liable for damages in an action for malicious prosecution. There can be no cavil with the observations made in the cited cases. For succeeding in his suit for damages on account of malicious prosecution, the applicant was required to prove (i) that he was prosecuted by the respondent, (ii) that the proceedings against him terminated in his favour, (iii) that the prosecution was instituted against him without any reasonable and probable cause and
(iv) that the foundation of the action taken against him by police at instance of the respondent was motivated with malice. In other words prosecution of the applicant was due to a malicious intention of the respondent.
14. ' Applicant examined his father and next friend P.W. Races Ahmed Exh.4, who produced certain documents. The respondent examined himself and closed his side. Fact that the applicant was prosecuted at instance of the respondent is established on record. P.W. Races Ahmed Exh.4 deposed that on 27-10-1983 the respondent lodged report at Police Station Korangi against him and the applicant, alleging that the two had fought with him and he was apprehending danger from both. P.W. Races Ahmed added that police submitted case against him and against the applicant under section 107/151, Cr.P.C. In Court of the SDM Bin Qasim, who issued N.B.Ws, against him and the applicant. P.W. Races Ahmed Exh. 4 produced copy Exh. P/4 of the police report submitted in Court of the S.D.M. He produced copy Exh.P/2 of the order passed under section 112, Cr.P.C. By the SDM against the applicant, against him (Races Ahmcd) and two otheRs, Races Ahmed added that in the proceedings against the applicant the respondent was examined who gave wrong date of the alleged incident viz. 20-2-1984. He produced copy Exh.P/5 of deposition of the respondent recorded in Court of SDM Qasimabad, where date of the fight was given as 20-2- 1984, instead of 26-10-1983 given in the police report copy Exh. P/4. Races Ahmed Exh.4 further stated that under an order dated 27-11-1984 copy Exh.P/3 he was released from the proceedings by the SDM Civil Lines, to whose Court the proceedings were transferred under an order copy Exh.P/13.
15. Order by the. SDM copy Exh.P/3 shows that on 27-11-1984 all the opponents in the proceedings under section 107, Cr.P.C. Were discharged under section 119, Cr.P.C. Because the proceedings were over one year old and no witness was produced.
16. ' In his deposition Exh.5, respondent M. Ashfaq stated that on 27-10-1983 he lodged report with Korangi Police about an incident dated 26-10-1983 when the applicant and his father alongwith other persons had quarrelled with him. M. Ashfaq added that on his report police conducted inquiry and took away the applicant, who was subsequently let off. M. Ashfaq added that thereafter proceedings under section 107, Cr.P.C. Were initiated against the applicant but the same were dropped after one year and the applicant was discharged. M. Ashfaq admitted that his statement was recorded in the proceedings before the SDM. All this evidence shows that the applicant and his father were prosecuted by the respondent and that those proceedings terminated in favour of the applicant and his father.
17. ' Besides this, the applicant was further required to establish that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention of the respondent and not with a mere intention of carrying the law into effect. In his deposition Exh.5 the respondent explained that he lodged the report with police on 27-10-1983 because of the quarrel by Shakeel Ahmed and Raees Ahmed. In his cross-examination the respondent admitted that his eldar brother Afaq was living in F.B. Area and his younger brother, working in Office of the A.G., was living with him in the same house. He showed his ignorance about any dispute between him and widow of Iqtidar Din over a quarter. He did not know if applicant Shakeel Ahmed and Raees Ahmed were witnesses in the dispute between him and widow of Iqtidar Hussain. It was suggested to the respondent in cross-examination, that the incident, in respect of which he lodged report with police, was of 20-2-1984. This was wrong suggestion put to the witness, because as per police report copy Exh.P/4, the incident in question took place on 26-10-1983. In his cross-examination the respondent was not questioned if the proceedings lodged against the applicant were malicious or were having malice as a foundation. It was not suggested to respondent M. Ashfaq in cross-examination if prosecution was instituted against the applicant without any reasonable and probable cause. It was not suggested to the respondent if the prosecution lodged by him was due to his malicious intention and not with a mere intention of carrying the law into effect. As a matter of fact, the onus was on the applicant to prove that the proceedings against him were malicious and they were without any reasonable and probable cause. In his deposition respondent did not state if the proceedings against him were malicious.
18. ' The order copy Exh.P/3, shows that the applicant was discharged because the case against him was pending for over one year and no witness was produced. In any case this was not a discharge on merits. As observed in the case bf Balbhaddar Singh and another v. Badri and another (AIR 1926 PC 46) the question is not whether the applicant committed the offence or whether the respondent invented the offence against the applicant, but the question is whether the applicant has proved that the respondent invented and instigated the whole proceedings for prosecution. As already discussed, the applicant has failed to prove necessary ingredients for maintaining action for malicious prosecution.
19. ' While hearing a Revision Application under section 115, C.P.C., this Court has to satisfy itself upon three matters viz. That the order of the subordinate Court is within its jurisdiction, that the case is one in which the Court ought to exercise jurisdiction and that in exercising jurisdiction the Court has not acted illegally. In the case of Shahzad Muhammad Umar Baig v. Sultan Mehmood and others (PLD 1970 SC 139) it was held that section 115, C.P.C. Is meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those errors which are made in their jurisdiction unless the jurisdiction is found to have been exercised fancifully or arbitrarily.
20. Morover concurrent findings of the Courts below are not to be interfered with in revision except when such findings are suffering from any infirmity, as held in case of Faiz Ahmed v. Allah Wassai (1988 SCM R 234).
21. ' In the light of case-law discussed above, there is little scope for unsettling the concurrent view, taken by the two Courts below.
22. ' For these reasons this Revision Application stands dismissed with no order as to costs.