MIAN NAZIR AKHTAR, J.- This R.S.A. ...Crises out of a suit for recovery of Rs.1,00,000/- as damages filed by the respondent on 2.10.1990 against the appellant in the Court of Civil Judge, Lahore. The respondent claimed that due to a false report lodged by the appellant he was maliciously implicated in the case, was arrested and humiliated at the hands of the police. It was also alleged that while in custody he was mercilessly given beating by the police in the customary manner. The suit was resisted by the appellant who filed his written statement in the Court which gave rise to the following issues:-
(1) Whether the plaintiff was prosecution maliciously and without just probable cause at the defendant's instance? OPP
(2) Whether the plaintiff suffered loss to body, mind and reputation and as such entitled to damages of what amount? OPP
(3) Whether the defendant is entitled to special costs? OPD (3-A) Whether the plaint does not disclose any cause of action? OPD.
(4) Relief.
After recording evidence of the parties, the Trial Court dismissed the suit vide judgment and decree dated 2.11.1991. The respondent filed an appeal which was accepted and the suit was decreed against the appellant by the learned Addl. District Judge vide judgment and decree dated 5.4.1994.
2. I have heard learned counsel for the parties and perused the material on the record. The appellant was working as Headmaster, M.C. Primary School Gurdwara Ramgarh, Lahore at the time of institution of-the suit, In the month of August, 1984 his son Sajjad Riaz had disappeared, whereupon he made a report to the police which was entered at No. 4 on 14.8.1984 at P.S. Ghaziabad, Lahore. The said report reads as under. {{URDU MISS}} Had there been any malice on the part of the appellant against the respondent or had the disappearance of-the appellant's son been a created circumstance to implicate the respondent then his name must have figured in the initiate report. Thereafter, FIR No. 198 was registered at Mustafa Abad on 18.9.1984 on the petitioner's statement. In the FIR, the respondent was not directly alleged to have abducted or kidnapped the child. It was stated therein that the matter regarding disappearance of the appellant's son was advertised' in the press and some hand bills were got published and disturbed amount the people; that Saeed Anwar, respondent, a resident of the appellant's Mohallah took a few hand-bills and informed him on the next day that he had delivered some hand-bills to a person named Munir, who was connected with the Intelligence Bureau that on 5.9.1984 Munir gave a ring to the appellant's nephew Yunus Aziz and informed him that the child had been traced out that they should come at a place bearing No. 37, Bahawalsher Road, 'Lahore and that the child would be delivered before the Magistrate; that accordingly, the appellant alongwith some respectable persons went to. The said place where Munir met him and gave him a paper in his on hand-writing in the light of which efforts were made to trace out the child at Jand and Attock Railway Stations; that thereafter, the appellant contacted Saeed Anwar, who asserted positively saying." * { ^ H M {{URDU TEXT}} During the course of investigation, the appellant's son was recovered from Munir accused and handed over to him. Thereafter finding of innocence was recorded by the Investigating Officer in favour of the respondent. On the basis of the said finding the Magistrate discharged the respondent from the case. The appellant accepted the said order and did not challenge it before any higher legal forum. This also shows that the appellant had no malicious intention to implicate the respondent falsely in the case. He being the father of the missing child was extremely worried. It appears that whatever little clue the appellant was able to get about his missing son was honestly mentioned by him in the FIR, leaving the rest to be done by the police in accordance with the law. In case the police had arrested the respondent without any reasonable material or tortured him in the police lock-up, the respondent ought to have impleaded the concerned police officials as defendants in the suit. By not impleading them the respondent has unilaterally exonerated the police officials from tortious liability. From the material on the record, it is merely established that the respondent was prosecution oh a report lodged by the appellant but it was not proved that it was done maliciously or with ulterior motives. The appellant had justifiably set the machinery of law in motion for the sole purpose of recovery of his missing son. In the FIR he had placed the main burden on Munir accused from whom his son was ultimately recovered. As soon as the police found that the respondent had in hand in abducting the appellant's son it voluntarily made a recommendation in his favour and got him discharged from the case. In the case of Muhammad Ahram v. Mst. Farman Bibi (PLD 1990 S.C. 29), the Supreme Court of Pakistan has laid the following ingredients for establishing malicious prosecution:-
(i) That the plaintiff was prosecution by the defendant;
(ii) That the prosecution ended in plaintiff's favour;
(iii) That the defendant acted without reasonable and probable cause;
(iv) That the defendant was actuated by malice;
(v) 'That the proceedings had interfered with plaintiff's liberty and had also affected her reputation; and finally
(vi) That the plaintiff had suffered damage.
In the present case it is not established that the appellant had acted without reasonable and probable cause and that he was actuated by malice. The initial onus of proving the absence of reasonable and probable cause and malice on the part of the defendant/appellant was on the respondent. The onus cannot be launched the behest of the defendant or that the case ended up in the plaintiff's discharge or acquittal. A contrary view would discourage the citizens even from making bona fide or honest reports to the police for redress of their grievances.
3. In this view of the matter the Trial Court had. Rightly dismissed the respondent's suit and the first Appellate Court grossly erred in law in reversing the judgment and decree of the Trial Court.
4. For the foregoing discussion the appeal is accepted, the impugned judgment and decree dated 5.4.1993 passed by the learned Addl. District Judge are set aside and those of the trial Court restored leaving the parties to bear -their on costs.