' This appeal is addressed against the judgment and decree of the learned Sub-Judge Bhimber, whereby the suit for the appellant (plaintiff) was dismissed.
2. The precise facts giving rise to the instant appeal are, that the appellant (plaintiff) brought a suit for recovery of Rs,15,000 before the Court of Sub-Judge, Bhimber. It was averred by the appellant (plaintiff), that the defendant lodged a false report against the plaintiff and others under sections 336/506, 147/148, 149, A.P.C. At Police Chowki Ali Baig. The plaintiff and Ghulam Haider were detained by the police. They remained under the detention for a whole day. The remaining accused persons obtained the concession of bail before arrest from the High Court Circuit, Mirpur. They paid Rs,5,000 as legal fee to the counsel Rs,2,000 was spent on the transport. The appellant (plaintiff) suffered mental torture and his reputation was injured. He is entitled to the damages of Rs,5,000 for the injured reputation. This case was challaned. The appellant (plaintiff) paid Rs,2,000 legal fee to the counsel for the trial of the case. The trial remained continue for about 5/6 months. In this period.
The plaintiff-appellant spent Rs,1,000 on transport and other miscellaneous items. On 29-9-1992, the plaintiff-appellant was acquitted and the case was dismissed as it was false. The plaintiff claimed the total damages of Rs,15,000 for the malicious prosecution.
3. This suit was contested by the defendant. After the trial, the learned Sub-Judge, Bimber dismissed the suit. The instant appeal has been filed against this judgment and decree.
4. Mr. M.X.Arvi, the learned counsel for the appellant contended, that a false F.I.R. Was lodged against the plaintiff (appellant). He submitted, that it was claimed in the F.I.R., that on 3-4-1992 at about 6 p.m., the plaintiff alongwith other accused person opened the attack on the complainant.
When he was going towards his house from his land, after putting the forage to his tattles. They started reckless firing and abused him. In the F.I.R. The plaintiff (appellant) and the other accused persons were shown armed with fire-arms weapons. The plaintiff (appellant) was shown having a 7-MM rifle. He further submitted that on 3-4-1992 at 6.p.m., the complainant was under the detention of the police, as he was arrested in some other case, therefore, a false F.I.R. Was lodged against the plaintiff (appellant). A false story was narrated by the defendant. The plaintiff (appellant) was acquitted from the trial Court on the ground, that at the time of the occurrence, the complainant was under the detention at Police Chowki All Baig, therefore, a false story was built up. He submitted that from the entire evidence, it is sufficiently proved, that the plaintiff (appellant) was involved in a false case by the defendant and his reputation was injured, therefore, he was entitled to the claim of damages.
5. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondent, Mr. Muhammad Ayub Sabir, argued, that the judgment and decree of the, lower Court is based on sound, sagacious and tenacious reasoning's and warrants no interference. He submitted, that the plaintiff has failed to prove, that he was taken into custody by the police and he remained in the custody of the police. It is admitted by the learned counsel for the respondent, that a F.I.R. Was lodged by the defendant against the plaintiff (appellant). The challan was submitted against the plaintiff (appellant) in the Court, but the Court, while exercising power under section 249-A, dismissed the case. He submitted, that the case was not false at all. As the appellant was not arrested, so he was not entitled to damages.
6. I have heard the learned counsel for the parties and perused the relevant record and given my utmost muse to the respective arguments advanced by the learned counsel for the parties.
7. In the instant case, the following points are admitted between the parties:--
(i) The defendant lodged a F.I.R. At Police Chowki Ali Baig against the plaintiff (appellant).
(ii) The case was challaned by the police.
(iii) The trial Court dismissed the challan submitted against the plaintiff (appellant).
' However, it was contradicted by the defendant that a false allegation was attributed to the plaintiff and he was maliciously prosecuted.
8. In order to obtain damages for malicious prosecution, it is obligatory for the plaintiff to prove that:
(i) He was prosecuted by the defendant on a criminal charge.
(ii) The prosecution was terminated in the plaintiff's favour.
(iii) The prosecution was malicious.
(iv) The prosecution was without reasonable and probable cause.
9. In suit for damages, it is fundamental duty of the plaintiff to prove, that the prosecution was instituted against him without any reasonable and probable cause. It was due to the malicious intention. In the instant case, the entire claim of the plaintiff is based on the plea of malicious prosecution. For arriving at appropriate conclusion, it is necessary to examine the meaning and scope of phrase, "malicious prosecution". Phrase "malicious prosecution" connotes an action in a case accompanied by enmity, despite, or hatred. The word "malicious prosecution", has been defined in case titled "Ghulam Nabi v. Azad Government of State of Jammu and Kashmir", reported in 1984 CLC 325 relevant p.4, which is as under:- "The claim of the plaintiff, primarily, rests on the plea of malicious prosecution. In order to arrive at a proper conclusion, it is necessary to examine the meaning and scope of phrase 'malicious prosecution'.
' The phrase mala fide' and 'malicious prosecution connotes an action in a case accompanied by ill-will, enmity, despite, or hatred. In 'Wharton's Law Lexicon, the phrase 'malicious prosecution' is defined as:-a prosecution, preferred maliciously without reasonable or probable cause; the remedy is an action on the case, in which damages may be recovered. The allegation of want of probable cause, must be substantively and expressly proved, and cannot be implied; but it is for the Judge, to determine upon ie."
' The meaning of the word "malicious" as defined in 'Webster's International Dictionary (Second Edition), is:-- "(1) Indulging or exercising malice harboring or enmity.
(2) Proceeding from hatred or ill-will; dictated by malice.
(3) Play fully or archly mischievous.
(4) Obs. a Mod, Malignant; virulent. b. Clever; cunning.
(5) Law. Characterized by, or involving, malice; having or done with, wicked or miscount intention or motives; as a malicious act."
' In presence of the meaning and scope of phrases, 'malicious prosecution', referred to above, it is, therefore, further necessary to find out the meaning and scope of the phrase "probable cause". The phrase "probable cause" in its dictionary meaning, defined in Webster's International Dictionary Second Edition) signifies as:-- " 'A reasonable ground or presumption that a charge is well-founded'. Two definitions of probable cause with reference to the criminal prosecution and actions in tort are in general acceptance.
One is that 'probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts, within the knowledge of the prosecutor, that the persons charged was guilty of the crime for which he was prosecuted'. The other, and more widely accepted definition, tantamounts this, is; 'probable cause' means a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person caused is guilty of the offence with which he is charged".
' It is evident, from the aforesaid meaning of the phrase, 'probable cause' that a bona fide prosecution rests on the circumstances sufficiently strong and convincing to warrant, a man of ordinary prudence, to entertain an impression and belief that the person accused was guilty of offence with which he was charged. On an action for damages, on the ground of malicious prosecution, the initial onus of proof was on plaintiff to satisfy Court on the following points:--
(i) That his criminal prosecution was malicious; and
(ii) that the prosecution was without reasonable and probable cause."
10. In suit for damages on the basis of malicious prosecution, the onus to prove remains on the plaintiff. He has to prove that his criminal prosecution was malicious as well as there was no reasonable and probable cause for undertaking his prosecution. The burden to prove lies on that person, who would fail, if no evidence at all is adduced by either side. In my opinion, the initial burden of proof was on the plaintiff, but on the discharge of the initial onus the burden shifted on the defendant. He was bound to show the existence of reasonable and probable cause for the prosecution. It is the fundamental duty of the defendant to prove that the prosecution was not malicious, but there was some reasonable or probable cause for the prosecution of the plaintiff.
This view finds support from same 1984 CLC 325.
11. Now the question emerges, whether in the instant case, the plaintiff was prosecuted maliciously and allegation attributed to him was false one? The case of the plaintiff according to the F.I.R. Is that the plaintiff opened the attack on the defendant complainant, when he was going towards his house from his land after putting forage to his cattle's. This allegation is false, because at the alleged time of occurrence the defendant-respondent was under the detention of the police, so no question arises about opening of the attack on the defendant at the relevant time.
12. I have gone through the acquittal order, Exh.P.E. Although, the learned Sub-Judge has stated in his judgment, that the acquittal order was not exhibited, but it was wrongly held by the learned Sub-Judge. It is Exh.P.E. It was exhibited on 16-12-1996. This order contains, that the complainant was arrested in Chowki Police Ali Baig on 3-4-1992 and he was released at night. On 4-4-1992, he lodged this false report against the plaintiff-appellant. During the arguments, this fact was admitted by the Prosecuting Inspector, so he was acquitted by the trial Court, while invoking the powers under section 249-A of the Cr.P.C. Against this order of the trial Court, no appeal was filed, so it has attained finality. The plaintiff even otherwise, produced Head Constable Muhammad Latif, Chowki Police Ali Baig as a witness. He stated, that Muhammad Akram was arrested. Muhammad Akram himself appeared as a witness. He nowhere refuted the allegation, that he was not under the detention of the police at the time of the occurrence, therefore, it is established, that the alleged time of the occurrence, the defendant-respondent was under the detention of the police. A false report was lodged by the complainant. A false story was built-up by the defendant. The learned Sub-Judge has wrongly held, that the plaintiff was not arrested by the police. The learned Sub-Judge has not gone through the evidence. Muhammad Latif Head Constable appeared as a witness and stated, that Ali Haider and Ghulam Haider were arrested and kept into the lock-up..
This portion of his statement was not challenged during the cross-examination. When this portion of his statement was not challenged in cross-examination, then it shall be deemed to be admitted.
13. Now the next question emerges, whether the prosecution of the plaintiff was a "malicious prosecution". The plaintiff Ali Haider appeared as a witness, he was suggested during the cross- examination, that it is correct, that the litigation regarding the land is sub judice between the plaintiff and the defendant from the last 22 years. The defendant himself suggested, that there is enmity between the plaintiff and the defendant. Ghulam Haider appeared as a witness of the plaintiff. He was also suggested by the defendant, that due to the litigation, the enmity was prevailing between them. It was the case of defendant, that the enmity and malice was existing between the plaintiff and defendant.
14. Now the next question emerges, that to what extent, the plaintiff was entitled to the damages?
' In this case, the plaintiff-appellant has claimed Rs,5,000 for the injury caused to his reputation and remaining Rs,10,000 was claimed for the expenditure suffered by the plaintiff-appellant. Although, the amount of Rs,5,000 is nothing as compared to the torture suffered by the plaintiff-appellant, but when the plaintiff-appellant himself claimed Rs,5,000 for the injury caused to his reputation, then the damages in the sum of Rs,5,000 could only be awarded to the plaintiff-appellant. As the remaining expenditures are concerned, the plaintiff stated, that the other accused persons were also arrested and the total amount of Rs,7,000 was spent on them which was borne by the plaintiff- appellant. No one of the other accused persons appeared as a witness and supported this version of the plaintiff, therefore, the amount of Rs,7,000 could not be awarded to the plaintiff, because he has failed to prove the aforesaid amount. It was further stated by the plaintiff, that he paid Rs,2,000 to the counsel legal fee for the trial of the case and Rs,1,000 was spent during the trial on the transport and other miscellaneous items. He is entitled to this amount. In this way the plaintiff is entitled to Rs,8,000. It could not be ignored, that the society, in which we are living, in this society, the trend of building false story is increasing day by day. It must be discouraged, otherwise it will pervade in the society. The result of which will be debacle of the society.
15. The nutshell of the above discussion is that this appeal is accepted and the judgment and decree of the lower Court is hereby set aside and the suit of the plaintiff is decreed to the tune of Rs,8,000 (Eight thousand) with costs.