1. ' This consolidated judgment will dispose of three connected Revision Applications being Nos. 226, 227 and 228 of 1993, as subject-matter is the same. All these Revision Applications are based on orders of learned IIIrd Senior Civil Judge, Karachi East on applications in Suits Nos. 667, 668 and 669 of 1992, filed by Sher Muhammad applicant herein. These suits were filed by Moula Bux, Abdul Shakoor and Rasool Bux against applicant Sher Muhammad, Mst. Rabia, Mst. Murad Bibi and Mst.
2. Jamal Khatoon for damages of Rs,46,000 on account of defamation and malicious prosecution.
3. ' Facts leading to filing of these Revision Applications are that Sher Muhammad, applicant herein, lodged F.I.R. No, 171 of 1989 at P.S. Gadap, Karachi East on 3-9-1989 under section 307/34, P.P.C.
4. Against Moula Bux, Abdul Shakoor and Rasool Bux, respondents herein. It was alleged in the F.I.R.
5. That respondents abovenamed caused hatchet and Danda blows to applicant Sher Muhammad who is a disabled person, his two daughters namely Murad Bibi and Rabia and that this incident was witnessed by Mst. Jamal Khatoon.
6. ' After registration of case respondents Moula Bux, Rasool Bux and Abdul Shakoor were challaned and learned VIth Additional Sessions Judge, Karachi, East vide his judgment dated 3-3-1991 convicted all the respondents (herein) under section 323, P.P.C. And sentenced each of them to undergo RI for six months and pay fine of Rs,1,000 or in default to undergo. RI for one month more.
7. Against this judgment respondents filed Criminal Appeal No,48 of 1991 before the High Court. By a judgment dated 14-11-1991 respondents were acquitted giving them benefit of doubt by my learned brother Allah Dino G. Memon, J. (as he then was). After acquittal they filed the above suits for damages on account of defamation and malicious prosecution.
8. ' The appellant filed an application under Order 7, Rule 11, C.P.C. For rejection of the plaints, which was allowed by the IIIrd Senior Civil Judge, Karachi East vide his order, dated 17th March, 1993.
9. Against this order respondents filed Civil Appeals Nos. 41, 42, and 43 9f 1993 before District Judge, Karachi East. Respondents withdrew their appeal against Mst. Rabia, Murad Bibi and Jamal Khatoon while against the present applicant it was allowed. Against these orders these revision applications are filed.
10. ' Learned counsel for the applicant argues that order of the learned District Judge, Karachi East is not in accordance with law, malice is the main ingredient in suit of malicious prosecution.
11. Respondents have been acquitted due to benefit of doubt as such there is no malicious intention, and also that applicant had no cause of action to initiate prosecution against the respondents.
12. ' Reliance is placed on case of Mst. Shahnaz Begum v. Mst. Zulekha Bibi reported in 1989 CLC 1526.
13. ' Learned counsel for the respondents has argued that the very fact that respondents were acquitted after being charged in a criminal offence makes it a malicious prosecution, as such, the order of the learned trial Judge is a good order in the eyes of law.
14. ' I have perused the judgment of the learned District Judge, Karachi East, he has relied upon case of Mst. Amna v. Nizamuddin reported in 1985 M LD 271. In the case of Mst. Amna v. Nizamuddin reported in 1985 M LD 271 my learned brother Naimuddin, J. Has based his findings on judgment of Privy Council in case of Raja Braja Sunder Deb which reads as follows:- "In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things: (i) that prosecution was malicious and (ii) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrong headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough, there must also be shown to be absence of reasonable and probable cause."
15. ' It clearly shows that malice and absence of reasonable and probable cause should be there for damages and that if prosecutor honestly thinks that accused has been guilty of a criminal offence he cannot be sued for malicious prosecution.
16. ' In this case we have to see if the applicant had malice or that he had no reasonable and probable cause to initiate prosecution against the respondents.
17. Admittedly, the applicant and his two daughters Mst. Rabia and Murad Bibi had received injuries for which medical evidence has been produced. It was a day time incident. Apparently it is improbable that applicant would file false F.I.R. Against the respondent leaving actual assailants.
18. Police has investigated the case and the learned trial Court has convicted them. Honourable High Court has acquitted them on the ground of benefit of doubt. It shows that it is not altogether a false case but prosecution has failed to prove its case beyond any reasonable doubt which is a principle of justice in criminal law. It would not mean the prosecution is malicious. Applicant has reasonable and probable cause to initiate criminal proceedings against the respondents and failure to prove the case beyond reasonable doubt will not be termed it as malicious prosecution. Damages as claimed by, the respondents are based on malicious prosecution.
19. ' According to paras. 6--8 of the plaint report lodged by the applicant is alleged to be false so as to disgrace respondent in the eyes of people of his locality friends and relatives. According to para. 14 complainant's entire family due to this false case remained in awkward situation from 3-9-1991 to 14-11-1991 According to para. 16 the plaintiff being respectable person was subjecting to mentle torture and it was on account of malicious prosecution which resulted in his loss of business.
20. Plaintiffs claimed Rs,12,000 as expense for the trial, Rs,30,000 as loss of his business and Rs, 4,000 on account of medical treatment. Application under Order 7, Rule 11, C.P.C. Has been moved on the ground that complainant and his daughters Mst. Rabia and Mst. Murad Bibi did receive the injuries which is proved by the medical evidence. Police after investigation have challaned the respondents and learned trial c Judge have convicted them being guilty of that offence.
21. Subsequently High Court has acquitted the respondent not on the ground that it is a false case but on account of benefit of doubt.
22. ' In view of the above discussion the impugned order of learned District Judge, Karachi East is set aside.
23. ' These are the reasons for short order dated 21-9-1994.