NAIMUDDIN, J.--This is an appeal by leave from the judgment and decree passed by the High Court of Sindh in IInd Appeal No. 3 of 1984 in the following circumstances:
2. Respondent No. 1 sent a telegram to the S.H.O. SITE Police Station on the basis of which a First Information Report was recorded, which reads as under:-- "Workers . Of our mills continued their go-slow tactics in ail departments. (stop) On October 7th Akram Naseem son of Ch. Abdul Sharif,(comma) Muhammad Aslam Latif, Mohammad Rafiq son of Ghous Khan and others Gharaoud the Mills staff out of the phone to outside and stopped work of the mills for off fifty minutes in the second shift. (stop) Again they did not allow the workers to join then duties ;n the first plus first shift in October 9th until twenty-five minutes after the normal start of the shift. (stop) Once again they Gheraoud the van of the mills and instigated the workers to stop work for 15 minutes in the first shift today and have not allowed goods to go out of the mills.
The van was loaded and the workers un-authorisedly unloaded goods (stop) Have informed site police station immediately (stop) Request immediately necessary action be taken to stop their illegal acts. Director Shalimar Silk Mills Ltd:'
3. After investigation Police submitted Challan against respondent No. 1 and other accused persons.
4. The appellant was examined on 6th March, 1973 as a witness and on 20th August, 1973 he was cross-examined but other witnesses could not be produced and the case was adjourned from time to time for various reasons including abscondence of some of the accused and/or absence of some of them. Ultimately, the ACM-IV, Karachi, in whose Court the case was pending, discharged all the accused by the order dated 11th February, 1975. The order reads as under:- "PSI, present. All the accused present on bail with their DC. Summons not received back either served or unserved. Before this, many times, summons have reportedly been issued but witnesses have not turned up and they are reported to have left the service and have gone to somewhere else. This is an old case of about more than two years and prosecution has failed to produce the witnesses in spite of repeated process issued. Hence all the accused are discharged under section 253, Cr.P.C."
5.This led respondent No. 1 to file a suit on 7th February, 1976 in forma pauperis against appellant No. 1 and the Government of Sindh in the Court of IInd Senior Civil Judge, Karachi for damages in the sum of Rs. 50,000 for malicious prosecution which was dismissed by the learned Civil Judge by the judgment and decree dated 8th August, 1981. The operative part of the order, reads as follows:- - "Though there is nothing in rebuttal, yet the order of discharge produced by plaintiff as Annexure `C' shows that the plaintiff was dishcarged under section 253, Cr.P.C. For want of prosecution Insufficiency of evidence is not the conclusion (conclusive) proof that case registered was altogether false. The production of challan by police before Magistrate itself shows that a prima facie case was made out by the police for cognisance of the Court for which defendant No 1 should not be blamed about the consequences."
6. Respondent No. 1 filed First Appeal which too was dismissed by the d Additional District Judge, Karachi by the judgment dated 14th April, 1984. It would be useful if the relevant para of the judgment with the operative part of the order is quoted here. It reads as under:-- "I have heard the appellant in person and have gone through the arguments submitted by him and R&P of the lower Court. Respondent No. 1 had lodged F.LR. On 11-10-1972, against the-- appellant and other accused persons under sections 147, 427, 352, P.P.C. The case was duly investigated by SITE police and the accused persons were challaned in the Court of learned S.D.M. Before learned S.D.M, only, complainant i.e. Respondent No. 1 was examined on 20-8-1973. I have gone through his statement, in which, he has supported the contents of F.LR. I have also gone through the order dated 11-2-1975, passed by ACM No. 4, Karachi under section 253, Cr.P.C. By which he discharged the accused persons including the appellant from the case. They were discharged only because the witnesses could not be examined as they were reported to have left the services and have gone to somewhere else and the case was old one, therefore, it cannot be said that the appellant was falsely prosecuted. I agree with the learned IInd Senior Civil Judge, Karachi that insufficiency of evidence is not conclusive proof that the case registered was altogether false. The accused persons were challaned in the Court after proper investigation therefore, it shows that prima facie case was made out by the police for cognizance of the Court, for which respondent No. 1 could not be blamed about the consequences. The appellant had failed to make out the case for malicious prosecution therefore, suit was rightly dismissed. For the above reasons I see no force in this appeal which is accordingly dismissed with no order as to costs."
7. Still dissatisfied with the judgment and decree of the trial Court and the judgment of IInd Additional District Judge. Karachi, Respondent No. 1 preferred second appeal, in which he succeeded. In allowing the appeal the reasons which weighed with the High Court may be usefully quoted here, which are very brief. These are:-- "The trial Court is required to consider the pleadings as well as documentary evidence brought on record and then come to the conclusion whether the tests required to be fulfilled for making ,out a case for grant of damages for malicious prosecution had in fact been satisfied or not. This exercise has neither been undertaken by the trial Court nor by the learned IInd Additional District Judge, Karachi. The learned IInd Additional District Judge, Karachi has also given the same reasons for dismissing the appeal of the appellant. In my view on the evidence on record, which has not been considered by the two Courts below, the for tests mentioned in PLD 1970 Kar. 544 had been satisfied and as such the appellant had made out a case that he had been prosecuted by the respondent No. 1 maliciously and, therefore, he is entitled to the award of damages for malicious prosecution."
8.In awarding damages in the sum of Rs.50,000 the High Court took into consideration the following facts as stated in the judgment: "According to the appellant, he comes from a respectable family of Karachi and he was working as weaving clerk in the mill of respondent No.1. No written statement was filed by respondent. No. 1. The assertion that the appellant comes from a respectable family of Karachi has gone uncontroverted.
Appellant's services had also been terminated in November, 1972 after lodging of the F.I.R. By respondent No. 1. On a question from the Court, learned counsel for the respondent No. 1, . On instructions, stated that reasons for termination of appellant's service were his involvement in criminal offences for which respondent No. 1 had lodged the F.LR. It is apparent that, but for the criminal case launched by the respondent No.1, the appellant would not have been dismissed from service. Then on account of complaint lodged with ulterior motive to harass the appellant, the appellant was arrested at 2-00 a.m. In the night and remained in custody for nearly 16 days. No amount of money can fully compensate a citizen for deprivation of his liberty for 16 days without any plausible reason or cause. In my view, the sum -of Rs.50,000 claimed by the appellant in not even a fair. Compensation for the arrest and the detention of the appellant and facing criminal proceedings for a period of nearly 2-1/2 years but this is the amount which he has claimed and I have no hesitation" in observing that he is entitled to this amount as damages for malicious prosecution."
9.It is well settled that in a suit' for malicious prosecution the plaintiff is under the onus to show that:
(i) he Was prosecuted by the defendant on a criminal charge, (ii) the prosecution terminated in favour of the plaintiff, (ii:) the prosecution was malicious, (iv) the prosecution was without reasonable and I A probable cause, (v) the proceedings had interfered with the plaintiffs liberty) and had also affected his reputation, and finally, (vi) the plaintiff had suffered damages. See Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and Abdur Rashid v. State Bank of Pakistan and another PLD 1970 Karachi 344.
10. Therefore, we have to examine whether these ingredients are present in the case in appeal before us. There is no doubt that the appellant moved the police by sending the telegram on the basis of which F.I.R. Was recorded. Therefore, the first condition is satisfied that the appellant prosecuted respondent No. 1. As regards the question whether prosecution ended in favour of respondent No. 1, it is clear from the record that respondent No. 1 was not acquitted by the trial Court but he was only discharged because the witnesses could not be served and examined.
Therefore, it could not be said that the prosecution terminated in favour of respondent No. 1. Then there is no finding that the appellant was actuated by any malice against respondent No. 1 in lodging the report. The term "malice" in a prosecution of the nature which is before us has been held not to be spite or hatred against any individual but of 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 appellant was not actuated by this desire but by his personal feelings. See Mitchell v. Jenkins (1833) 5 B & Ad. 588 Pike v. Waldrum (1952)1 Lloyds/Rep. 431 and Steven v. Midland Counties Ry. (1854) 10 Exh. 352
11. It is necessary that the malice should be proved affirmatively. But there is no averment in the application under Order XXXIII, Rule 11, C.P.C. Which was under the rules treated as plaint, as to the malice. The only averment made is false indictment from which no such inference can be conclusively drawn. It would be useful if a passage from Abdur Rashid v. State Bank of Pakistan and another (supra) is quoted here. It reads: "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 of `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 prosecutor was not actuated by this desire but by his personal, feelings --See Mitchell v. Jenkins, Pike v. Waldrum and Stevens v. Midland Countries. Further, malice should be proved by the plaintiff affirmatively:--. Abrath v. N.E. Ry. (1886) ,11 CA 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 defect of want of reasonable and probable cause cannot be supplied by evidence of malice -- See Turner v. Amber (1847) 10 QB 252: Mitchell v. Jenkins; Brown v.
Hawks (1891) 2 QB 718 and Herniman v. Smith (1938) AC 305. It would be proper here to quote the following observation of Denning, Li (as he then was ) in Tempest v. Spowden, (1952) 1 KB 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 in this country.
12. However, there is no finding that the appellant was actuated by any malice against respondent No. 1 for lodging the report. Further, there is also no averment in the plaint that the report was lodged without any reasonable or probable cause. Indeed, in the absence of any averment no amount of evidence could be looked into. Still in the absence of any pleadings, no evidence was produced on behalf of respondent No. 1 in this regard. Further, in a decision of the Lahore High Court in the case of Abdul Shakoor v. Lipton & Company (AIR 1924 Lah. 1), it was held that in a suit for malicious prosecution proof of existence of malice itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause. This view was reiterated by the D same High Court in Nur Khan v. Jiwandas (AIR 1927 Lah. 120) and Gobind Ram v. Kaju Ram (AIR 1939 Lah. 504).
13. The learned Single Judge in the High Court criticised the judgment of the trial Court by observing that "A trial Court is required to consider the pleadings as well as the documentary evidence brought on record and then come to the conclusion whether the test required to be fulfilled for making out a case for grant of damages for malicious prosecution had in fact been satisfied or not. This exercise has neither been undertaken by the trial Court nor by the llnd Additional District Magistrate." But the learned Single Judge himself fell into the error by not referring to pleadings or any documentary evidence or, for that matter, to any evidence on record, for holding that "In my view on the evidence on record, which has not been considered by the two courts below, the for tests mentioned in PLD 1970 Kar. 344 had been satisfied ...."
14. Now a perusal of the judgment of the trial Court would show that the suit had proceeded against the appellant ex parte and in ex parte proof respondent No. 1 had annexed the copy of the F.I.R. Copy of the order of the Magistrate and the copy of the deposition of the appellant before the Magistrate and the copies of the notices exchanged between the advocates of the parties. In spite of these documents the trial Court, as stated earlier in the judgment, had found that "Insufficiency of evidence is not the conclusive proof that case registered was altogether false. The production of the challan by the police before Magistrate itself shows that a prima facie case was made out by the police for cognizance of the Court for which defendant No. 1 should no: be blamed about the consequence". Moreover, in the present case the appellant had only sent a telegram and the police, after investigation, had E submitted challan which shows that the police, prima facie, was of the view that an offence had been committed by the accused persons, respondent No. 1 being one of them.
15. Therefore, in our opinion, the appellant in the circumstances of the case could not be said to have acted without reasonable or probable cause or with - malice. It would be pertinent if we refer to the observations of Ameer Ali, J. In the case of Graham v. Henry Gidney, (AIR 1.933 Cal. 708). It reads as under:-- "A private individual should not be held responsible for the supervening arrest, on the ground that arrest was likely to follow from information given by him' unless, although he has not expressly directed the arrest, he has in fact made it impossible for the constable to act otherwise.
Reference may also be made to the observation of Collins, M.R., J, in the case of Sewell v. The National Telephone Company Limited ((1907) 1 K.B. 557), which are as follows:-- "The signing of a charge-sheet, standing alone, is not evidence of anything directly causing the imprisonment. Of the person charged, and will not support an action for false imprisonment against the person who signs."
16. Lastly, the learned Single Judge in the High Court accepted the claim, for damages as detailed below: "(i)Due to being jobless:,Rs. 5,000 (ii)Due to lower downRs.20,000 prestige and honour of the appellant in the eyes of the public.
(iii)Due to undergoing mentalRs.23,000 and moral torture.
(iv)Miscellaneous expenses. Rs. 2,000 Total:Rs.50,000 This the learned Judge did simply because in his opinion "the sum of Rs.50,000 claimed by the appellant (Respondent No. 1) is not even a fair compensation for the arrest and detention of the appellant (Respondent No.1).
However, the learned Judge failed to distinguish between special damages and general damages.
Special damages could be awarded only on strict proof thereof. No particulars of special damages were stated much less G any proof thereof was furnished. Even otherwise since no case for malicious prosecution was made out, therefore, it is not necessary to go into this question any further.
18. For the aforesaid reasons, we find substance in this appeal and accordingly allow it by getting aside the impugned judgment and decree.
However, in the circumstances of the case, we leave the parties to bear their own costs.