All three civil revisions (C.R. No. 3208-D/96, C.R.3209-D/96 and C.R. 3210-D/96) arise out of the same facts and circumstances and, as such, are intended to be disposed of by this single judgment.
2. The facts as they can be gathered from the documents certified copies of which have been placed by the petitioners on record, briefly stated, are that Mirza Muhammad Usman Baig petitioner (in C.R. No.3209-D/96) was in possession of an evacuee property in village Aroop, Tehsil and District Gujranwala. He alleged that he had been occupying the same as a claimant since 1947 but one Sultan Mehmood A.I Khan started litigation with him for the transfer of this property in his name by the Settlement Department; that Sultan Mehmood A.I Khan also brought a suit for eviction of the said Mirza Muhammad Usman Baig from the property in dispute in the Civil Court, Gujranwala; that an F.I.R. No.844/85 was lodged by the said Sultan Mehmood A.I Khan at Police Station Saddar, Gujranwala on 4-11-1985--under section 457/380/448, P.P.C. Against Mirza Muhammad Usman Baig and his two sons, namely, Fazal A.I Baig and Qamar Baig and that after the necessary investigation by the Police all the three accused therein were challaned. They faced trial before Illaqa Magistrate but were ultimately acquitted.
3. Mirza Muhammad Usman Baig and his two sons, therefore, brought separate civil suits on 24-7- 1990 claiming damages to the tune of Rs.24,500 in each case for malicious prosecution, against Sultan Mehmood A.I Khan alleging in the plaints inter alia that defendant had all along been harassing and pressurizing Mirza Usman Baig by adopting illegal means for his dispossession from the property in question and it was in this very connection that they were involved in this false, buseless and fabricated criminal case. They claimed that they got their bails and then faced the trial for which they had to engage a counsel and put in attendance for about 44/45 times before the Magistrate. According to them, they not only established before the Illaqa Magistrate that. The prosecution version was totally wrong but also that they were innocent. The learned Magistrate,- therefore, acquitted them on 9-6-1990 holding that the case was false and the charge could not be brought home to the accused. Each one of them then claimed a sum of Rs.16,500 as expenses which, each one had to incur on account of the fee of the legal advisor and also to meet other charges and a sum of Rs.8,000 on account of loss of reputation.
4. These suits were contested by Sultan Mehmood A.I Khan who put in written statements therein.
He admitted the allegation in para. No. l of the plaint which mentioned that Mirza Muhammad Usman Baig had been in possession of the house since 1947 and both the parties were busy in litigation with regard to its transfer, as correct. He, however, maintained that the F.I.R. Was correctly lodged and that the investigation was lastly carried out by an A.S.P. Who also found the accused guilty and it was on the basis thereof that the accused were challaned. According to hint they were acquitted only because the Investigating Officer in the case could not be produced as a P.W. He denied all other allegations in the plaint and maintained inter alia that the plaintiff in each case had no locus standi/cause of action to file the suit; that the suit was not maintainable and that he was entitled to special costs under section 35-A, C.P.C. Because these suits were false, frivolous and vexatious.
5 The pleadings of the parties in each case were reduced to the following issues by the learned Civil Judge then seized of the matter: (1)Whether the plaintiff is entitled to recover Rs.24,500 from the defendant as damages? OPP (2)Whether the plaintiff has no cause of action and locus standi to file thissuit? OPD (3)Whether the suit is not maintainable in its present form? OPD (4)Whether the suit is false, frivolous and vexatious and the defendant isentitled to special costs under section 35-A, C.P.C.? OPD (5)Relief.
6. Parties then led evidence on these issues. The learned Civil Judge after having a detailed discussion on issue No. l came to the conclusion that the plaintiff in each case had failed to establish his claim. He. Therefore, decided the same against him. Issue No.2 was answered in favour of the defendant on the basis of findings on issue No.2. Issue No.3 was not pressed before him. Issue No.4 failed because the defendant could not produce any evidence to show that he was entitled to special costs. Consequently, the learned Civil Judge dismissed all the three suits with costs by means of his judgments and decrees dated 11-1-1995.
7. Feeling aggrieved, the plaintiff in each case preferred an appeal against these judgments and decrees. All these three appeals were taken up together by the learned District Judge, Gujranwala who by means of his single judgment dated 10-2-1996 upheld the findings of the learned Civil Judge and resultantly dismissed all these three appeals but left the parties to bear their own costs.
8. Still dissatisfied, all the three plaintiffs Mirza Muhammad Usman Baig, Fazal A.I Baig and Qamar Baig have filed these three separate civil revisions.
9. I have heard the learned counsel for the petitioners at some length and have also very carefully considered the material available on record. The learned counsel for the petitioners has tried to urge before me that the mere fact that criminal Court while acquitting the plaintiffs/petitioners had not declared the prosecution as false would not disentitle them to damages for malicious prosecution, as was held in Muhammad Tufail v. Ghulam Ullah etc. (1991 MLD 53). He has also placed reliance on Abdul Razzaq v. Abdul Rauf and another (PLD 1986 Karachi 476) for asserting that the acquittal would not be fatal to case for damages for malicious prosecution. I have had the privilege of going through these esteemed judgments but after considering the facts and circumstances of the present case in the light thereof I have no doubt in my mind that the findings of the two Courts below are unexceptionable and cannot be interfered with in exercise of the revisional jurisdiction under section 115, C.P.C. Because no illegality, irregularity or jurisdictional defect has been pointed out. In PLD 1970 Karachi 346 the requirements for establishing case for damages for malicious prosecution were enunciated and it was observed that the plaintiff was under the onus to show that:--
(a) he was prosecuted by the defendant on a criminal charge;
(b) the prosecution terminated in plaintiff's favour;
(c) the prosecution was malicious; and
(d) the prosecution was without reasonable and probable cause.
PLD 1970 Karachi 757, it was observed that the burden to prove in a suit for malicious prosecution was heavy on the plaintiff and the plaintiff was not only required to prove that the prosecution ended in his favour but also that it was without reasonable and probable cause. In 1984 CLC 325 also it was observed that initial onus of proof in such cases was on the plaintiff to satisfy the Court that his criminal prosecution was malicious and that the prosecution was without any reasonable and probable cause.
There is no denying the fact that there was civil litigation between the parties. The defendant claimed that an order of ejectment was passed in his favour and he was in possession of the property when he was forcibly dispossessed and his movable property in the said premises was taken away by the plaintiffs leading to the registration of the case. The defendant claimed in his written statement that the investigation Was finally carried out by an A.S.P. Whofound the accused/plaintiffs guilty and it was in these circumstances that they were challaned. Both the Courts below have taken note of this fact and also that all the three of them were charged by the learned Magistrate under section 448/380/34, P.P.C. As they denied the charge they were put to trial but since the prosecution failed to prove its case, they were consequently acquitted. The plaintiffs claimed in their plaints that they were acquitted by the Magistrate after observing that this case was false. The judgment of the learned Magistrate is not before this Court but both the Courts below did observe that both the parties failed to place on record even a copy of the F.I.R. Or of the evidence led therein. Both of them have also made a reference to the order passed by the Magistrate, copy Exh.P-1 and observed that the plaintiffs were acquitted only for non-appearance of the Investigating Officer and non-production of the case property. It, therefore, follows that it could not be said that the prosecution case was malicious or baseless; as observed by the learned District Judge.
10. The judgments relied on by the learned counsel for the petitioners can be of no help to him because it was observed in PLD 1984 Karachi 476 that the trial Court is required to consider pleadings as well as documentary evidence brought on record and then come to the conclusion whether tests required to be fulfilled for making out case for grant of damages for malicious prosecution had in fact been satisfied or not. In the instant case, however, the plaintiffs definitely failed to place before the Court any documentary evidence brought on record. They did not even bother to produce a copy of the F.I.R.
Similarly in 1991 MLD 53, it was observed that the Appellate Court was the final Court on facts and was quite competent to believe/disbelive the evidence disbelieved/believed by the trial Court and the Appellate Court had applied its mind to the relevant facts and evidence and had given cogent reasons in support of the conclusion arrived at by it. In the instant case, however, both the Courts have given concurrent findings of facts and I do not find any good reason to interfere therewith.
The result is that I find all these three revision petitions without merit and there being no good reason to admit them to regular hearing I cannot but dismiss them and they are accordingly dismissed _in limine.