' The petitioner/defendant having been aggrieved of the judgment and decree of the two Courts below, whereby a suit for the recovery of Rs,9,820 was decreed against him for damages on account of malicious prosecution, has come to this Court through the instant revision petition.
2. A brief resume of the case is that complainant/respondent 'instituted a suit for the recovery of Rs,24,820 for the malicious prosecution launched against him at the instance of the petitioner. The petitioner lodged a report with the police which was incorporated in the daily dairy whereby certain allegations were levelled against the respondent by stating that he used to sit near spring wherefrom water was taken by the women folk and he was indulging by doing obscene "acts such as making indecent sounds, gesture and insults the modesty of women coming there to the spring for fetching water. The police investigated the matter, recorded statements of the several persons and ultimately process the complaint under section 13/14 of the West Pakistan Control of Goondas Ordinance, 1959. The Tribunal constituted under the said Ordinance proceeded with the matter, recorded statements of the witnesses and ultimately passed an order "he is acquitted under section 17 of the West Pakistan Goondas Ordinance, 1959". Though there is no such word of acquittal in the Ordinance but what the Tribunal could do was to discharge him under section 17 of the Ordinance. The respondent having such a verdict in his favour filed the present suit against the petitioner for his malicious prosecution. The Courts below, as stated earlier, rendered findings against the petitioner by holding him responsible for such a prosecution of the respondent and passed the decree for the recovery of the amount mentioned above against which the recourse was made to this Court.
3. The learned counsel for the petitioner's contention was that the judgments of the two Courts below was the result of misreading of evidence and had proceeded on the wrong interpretation of law. While the learned counsel for the respondent's contention was that there was no flaw in the judgments of the Courts below and no such circumstances exist which warrant interference in the concurrent findings of the two Courts below.
4. The admitted facts of the case that complaint was lodged by the petitioner with the police with the allegations mentioned therein with a gist reproduced above and with the ultimate result in favour of the respondent. For the success of malicious prosecution, it is the bounden duty of the complainant to prove the following points:--
(i) That the plaintiff was prosecuted by the defendant;
(ii) that the prosecution terminated in favour of the plaintiff;
(iii) that the prosecution was initiated against the plaintiff without reasonable and probable cause;
(iv) that the prosecution was initiated with a malicious intention i,e, not with intention of carrying the law into effect but with an intention which was wrong in point of fact.
5. Now the present case will be tested on the above touchstone i,e, ingredients necessary to be proved for the success in the suit. The two Courts below were mainly influenced from the averments made in the complaint and derived the conclusion that the prosecution was started by the petitioner without any reasonable and probable cause with a malicious intention. But the assertions made in the complaint had to be examined in juxtaposition with the other facts of the case, i,e, the investigation of the police, recording of the statements of the various notables and after having corroborated the version of the complainant, the police arrived at a conclusion that the respondent was liable to be proceeded with. The Tribunal though passed the order of acquittal, which, as mentioned above, was not properly worded, not on the ground of insufficiency of evidence but rather mainly on the technical grounds--
(i) the record does not show any conviction slip on the case file;
(ii) no information has been received about his bad conduct since his challaned in this very complaint case;
(iii) with observations of the existence of contradictions in the statements of the witnesses.
' The two witnesses, in addition to the petitioner, who were examined during the proceedings of the said complaint were Muhammad Yousaf and Ziadullah. Out of whom the former was also produced during the present proceedings of the suit. They both have supported the complainant and they are trustworthy and notable persons even in the words of respondent himself by stating that: "Zaidullah Khan, Vice-Chairman is an honourable and notable man of the village. Muhammad Yousaf is also a notable and trustworthyman. However, he is relating to Muhammad Naseem. It is correct that the aforesaid Zaidullah and Muhammad Yousaf had deposed against me in the Court of District Magistrate. Miskeen Shah also deposed against me in the said Court."
' Muhammad Yousaf who testified the version of the petitioner during the suit had got no whatsoever against the respondent except that he was the relative of the petitioner which by itself would not be sufficient to brand the witness as an interested one and bent upon to prosecute the respondent.
6. Viewing the circumstances mentioned above one can say that the petitioner had proceeded against the respondent by lodging a report with the police with a genuine and honest belief based upon reasonable grounds of the existence of the circumstances which assuming them to be proved would reasonably lead prudent and conscious man to the conclusion that the person charged was properly guilty of the allegations levelled against him. This belief is further strenghthened by the absence of any such a motive which actuated the petitioner to had a recourse to such steps. Such a motive as set up by the respondent was that one Sabir who was the brother-in-law of his (petitioner) aunt contested local body election and the respondent had voted against him and which election took place in the year 1983 while the complaint was lodged in the year 1985. This reason for compelling the petitioner to bring a complaint of the nature as in the present case against the respondent is a far-fetched idea in view of the relationship of the petitioner with the said Sabir, the nature of election, the time that elapsed and specially only on the ground of giving vote.Against him and nothing more than that and particularly selecting only the respondent out of the hundred who voted against Sabir. Such an improper personal motive cannot be considered to have actuated the petitioner to lodge a report against the respondent with a malicious intention and not with a mere intention of carrying the law into effect. The learned Appellate Court has taken the principle of criminal administration of justice that a person is to be presumed innocent unless he is proved otherwise for the purposes of proving a case for damages of malicious prosecution as by making a reference to such a principle. It (the Appellate Court) was of the opinion that the respondent had to be presumed innocent unless proved otherwise and as he was acquitted so he was innocent and the prosecution of such a person would give him a cause of action for bringing a suit for damages with resultant consequence of success but rather such a principle might be true qua the respondent during the inquiry against 'him but not in the instant suit where the plaintiff is having the burden upon him of proving all the ingredients necessary for the malicious prosecution:
7. In consequence of the above discussion the conclusion derived by the two Courts below with regard to the absence of reasonable and probable cause for the prosecution is not well-founded.
'Resultantly, this revision petition is accepted, the judgments and decrees of the lower Courts are set aside and the suit of the plaintiff/respondent stand dismissed. Parites are left to bear their own costs.