The plaintiff, who is proprietor of M/s. Marine Management Company, has claimed decree for Rs,3 crores against the Government of Pakistan, Maritime Security Agency and Lt.-Comdr. Zafar Iqbal, Deputy Director, Fisheries, Maritime Security Agency, on account of his prosecution under section 9 of Exclusive Fisheries Zone (Regularization of Fishing) Act, 1975 (hereinafter referred to as the Act) which prosecution is alleged by the plaintiff to be malicious. The claim is made in the following circumstances.
2. The plaintiff is engaged in fishing, catching, export of fish. For that purpose, he acquired fishing trawler and other equipments. One of such trawlers namely 'Al-Basit' was in high seas during night of 26-1-1992, when it was arrested alongwith its crew members and defendant No,3 lodged an F.I.R.
At Dock Police Station on the next day at 11-00 a.m. Under section 9 of the Act, which is reproduced as under:--- "It is to report that Maritime Security Agency Ship during the routine patrol of the Eastern region apprehended Pak Flag deep sea fishing Trawler Al-Basit who was engaged in illegal fishing within 35 miles of coast in position 2328 N 6736 E which is about 18 N.M. Miles from the coast. The trawler alongwith its 17 in number crew of which 11 are Taiwani and 6 are Pakistani have been escorted to Karachi Harbour. It is requested that a case be registered against the owner and crew of the subject trawler under the exclusive Fishing Zone Regulation of Fishing Act, 1975 as amended in 1983 and the custody of the crew be taken from Maritime Security Agency."
3. The plaintiff, after obtaining bail for himself and the crew members filed an application under section 561-A Cr.P.C. For the quashment of the proceedings arising out of the above F.I.R. Criminal Miscellaenous Application No,109/92 was allowed by the order dated 7-5-1992 and the proceedings were quashed and the trawler 'Al-Basil' was released.
4. Defendant No,2 filed Criminal Appeal in the Supreme Court against the quashment order dated 7-5-1992, which was numbered as Criminal Appeal No,21-K/1992 and was decided on 2nd March, 1994. The appeal was dismissed and the order was upheld.
6. After termination of the proceedings, the plaintiff filed the above suit for recovery of Rs,3 crores on account of personal loss, loss of property (business) and loss of reputation.
7. Defendants denied allegations of the plaintiff and further pleaded that the suit is barred under section 13 of the Maritime Security Act, 1994 and maintained that the actions taken by the defendant No,3 were bona fide, in good faith, in performance of official duty, without any ulterior motive and no malice can be proved. The action taken against the plaintiff-company was justified, fair with bona fide intention in compliance of the order of the competent authority, as the owner, master and crew members of the trawler had committed an offence under the Act of 1975 and the case has not been decided on merit but on technical ground. The loss suffered, by the plaintiff was also denied. It was maintained that no particular amount has been claimed against each type of loss suffered by the plaintiff. The defendants are not liable to make payment of imaginary, unsupported, uncalled for, unjustified and vexatious claim and pleaded that the suit is liable to be dismissed with cost.
8. Out of the pleadings the following consent issues were framed:--
(1) Whether the suit is maintainable?
(2) Whether no cause of action has been shown in the plaint?
(3) Whether the action taken against the trawler% its crew and proprietors was based on malicious designs, illegal and without lawful authority?
(4) Whether the plaintiff s.Company has sustained any loss?
(5) Whether the losses, if any, sustained by the plaintiff's company were result of mala fide actions taken against them?
(6) What should .Be the actual amount of losses, if any, sustained by the plaintiffs?
(7) Whether the plaintiffs are entitled to any relief?
(8) What should the decree be?
9. At the trial, the plaintiff examined himself and -produced numerous documents, including certified copies of the order, notice etc. Whereas on behalf of the defendant No,3, namely Lt. Comdr. Zafar Iqbal, examined himself and produced numerous documents. Reference to the documents and evidence produced by the respective parties will be made while deciding issues.
10. Additional issue was also framed "whether the suit filed by the plaintiff was barred by time?, which I propose to dispose of first.
11. The plaintiff has filed the above suit for recovery of Rs,3 crores for his malicious prosecution. Such type of suits are governed by Article 23 of the Limitation Act, which provides period of limitation of one year, when the plaintiff is acquitted or prosecution is otherwise terminated.
12. Learned counsel for the plaintiff maintained that the prosecution of the plaintiff terminated by the dismissal of the Criminal Appeal by the Supreme Court on 2nd March, 1994 and suit was filed on 27-2-1995, thus, suit having been filed within one year of the termination of the prosecution of the plaintiff, was within time.
13. Conversely, the learned counsel for defendants maintained that the proceedings arising out of F.I.R. No,6/92 were quashed by the High Court on 7-2-1992, the period of limitation would start from the date of quashment i,e, 7-5-1992 and the suit filed on 27-2-1995 would be time-barred, having been filed beyond the period of one year.
Article 23 of Limitation Act runs as under:-- "23.For compensation for the malicious , prosecutionOne year When the plaintif f is acquitted or prosecution is otherwise terminated.
14. A perusal of Article 23 of the Limitation Act shows that it deals with two alternative cases, one envisages acquittal and other termination of the prosecution.. So far as first alternative or expression acquittal that is not applicable to the present case. It is second alternative that governs such cases, as those of discharge. In the present case, the plaintiff was not put to trial nor acquittal was recorded in his favour. The proceedings were quashed as such for all purpose it will be a case of discharge. It is the first alternative which will govern the cause of acquittal. Acquittal means acquittal from trial Court or if there is a conviction from the trial Court, then order of the acquittal passed in appeal or revision. In a case where acquittal has been ordered by the trial Court and the complainant has filed revision filing of revision cannot affect acquittal already passed, it will remain an order of acquittal till acquittal is converted into order of sentence. It would thus appear that under Article 23 of the Limitation Act, the limitation would run from the date when the plaintiffs were acquitted by the trial Court or in appeal if there was conviction from the trial Court. Filing of revision against the order of acquittal cannot suspend the period of limitation, which starts running from the date of order of acquittal. (Shankar Parshad v. Sheo Narian (AIR 1935 Oudh 392, (2) Madho Lal v. Hari Shankar (AIR 1963 Allahabad 547).
15. The case of Madan Mohan Singh v. Ram Sundar Singh (AIR 1930 All. 326), was a case of discharge and so the case was covered by the second alternative of Article 23. Learned Judges of Allahabad High Court by taking the word "prosecution" in its wider sense treated the revision application under section 436, Cr.P.C. Before the Sessions Judge as prosecution. This view was re- affirmed in case of Jagat Ram v. Mst. Ghani Dulaiva and another (AIR 1938 All. 49) and followed in case of Abdul Ghani v. Province of Pakistan (PLD 1975 Lah. 1238).
16. In the present case, no doubt, proceedings were quashed by order dated 7-5-1992 but Maritime Security Agency, defendant No,2, went in appeal before the Supreme Court by way of Criminal Appeal No,21-92, which was dismissed on 2nd March, 1994. The criminal appeal before the Supreme Court on the same analogy amounts to prosecution. If this view was not to be accepted, the result would be that the discharged person would be compelled to initiate a suit for damages, even though the matter was still sub judice before the Supreme Court. It seems extraordinary that the plaintiff should be compelled to sue, while it is yet a question whether his retrial is going to be ordered. Therefore, in my view the period of limitation of one year will start from the date of the order of Supreme Court viz. 2nd March, ID 1994 and the suit filed on 2-7-1995 is within time.
Issues Nos.1 and 2: The above issues can be decided together, as they involve the same point.
17. The defendants have taken plea that the plaint does not disclose any cause of action and the suit is barred under the provisions of section 13 of the Maritime Security Agency Act.
18. Reverting to the plea of absence of cause of action, the plaintiff has filed the suit for damages for malicious prosecution. The plaintiff has pleaded that the F.I.R. Was lodged against him and crew members and the proceedings initiated on the said F.I.R. Were quashed viz. Termination of the prosecution in his favour. These facts do constitute cause of action. The cause of action means every fact, which will be necessary to give action to and form foundation of the suit.
19. Immunity has been claimed to the acts done by the defendants as such the maintainability of the suit has been attacked. The provisions of section 13. Of the Maritime Act reads as under:--- "No suit, prosecution or legal proceedings shall lie against any person for anything, which is in good faith done or intended to be done under this Act or any Rules or regularization made therein." Similar provision was enacted in the shape of section 13 of the Act 27 of ' 1975, which reads as under:--- "No suit or any legal proceedings shall lie against Federal Government or any Fish Officer for anything in good faith done or intended to be done under this Act or any rule."
20. Learned counsel for the defendants has vehemently contended that the acts of defendant No,2 are protected under section 13 referred to above. He further contended that the action taken against the plaintiff was in good faith and in pursuance of the provisions of the Act. He has taken me through the evidence of defendant Zafar Iqbal, wherein he deposed that Maritime Fishery Department in order to check unauthorized fishing by Pak Flag vessel and other vessel in the Maritime Zone of Pakistan, had empowered Maritime Security Agency to check of any violation of N.O.C. By the vessel. On 25-1-1992 they received an information through the vessel M.S.S. Rehmat that one trawler "Al-Basit" is doing illegal fishing within the prohibited area 35 nautical miles of the Coast. After seeking instructions, they checked the record and it transpired that N.O.C. Issued to the vessel in question stands expired on 20-1-1992. The position was conveyed to the D.G. MSS, who instructed the Commanding Officer of M.S.S. Rehmat to apprehend the vessel namely Al-Basit and escort it to Karachi Harbour. Whatever he did he did under the power conferred upon him under the law and applicable rules and in line of his duties under the directions and supervisions of his officers and he further deposed that he acted in good faith with bona fide motive and in discharge of his official duty. He further deposed that he is duty bound under the law to enforce law and exercise power conferred upon him under the law and he is also duty bound under the applicable law and rules by virtue of his appointment to comply with the orders of his superior. Whatever action was taken in fact was taken in accordance with law.
21. On the above evidence, it has been contended that the action taken by the defendant against the plaintiff was in good faith and in accordance with rule and under the provisions of Act. In my view, in an action for malicious prosecution, the plaintiff has to allege and prove that not only he was prosecuted by the defendant and prosecution terminated in his favour but his prosecution was malicious and without any reasonable and probable cause. If the plaintiff succeeds in proving later ingredients, then the immunity cannot be extended in other words the important conditions of immunity i,e, "good faith" in pursuance of the provisions of the Act evaporate, when the plaintiff has pleaded the mala fide on the part of the defendants and the action initiated by defendant No,3 has been struck down on the ground that Lt.-Comdr. Zafar Iqbal was not Fishery Officer as such the action taken by him cannot be termed in accordance with the provisions of the Act to claim immunity. Therefore, these issues are decided against the defendants.
Issues Nos.3 and 5
22. These issues can be decided together as the same point is involved whether the prosecution under section 9 of the Act was malicious, without reasonable or probable cause. For malicious prosecution, the plaintiff has to prove (i) that he was prosecuted by the defendant on criminal charge, (ii) that prosecution terminated in favour of the plaintiff and (iii) the prosecution was malicious and (iv) the prosecution was without reasonable and probable cause. I need not dwell on the first requirement because, it is not denied by the defendant that criminal proceeding was initiated against the plaintiff under section 9 of the Act on the report of defendant No,3 in the capacity of Deputy Director Fisheries.
23. With regard to the second requirement, the plaintiff has shown that the prosecution terminated in his favour by quashment dated 7-5-1992 and ultimately by order dated 3-4-1994 by the Hon'ble Supreme Court. In the instant case, therefore, the judgment has to rest on the determination of the two points i,e, (i) whether the prosecution of the plaintiff was malicious and (ii) whether this prosecution was without reasonable or probable cause.
24. The term "malicious" in a prosecution of this nature of present suit, has been held not to be spite or hatred against an individual but of 'malus animus' and as denoting the working of improper and indirect motives. The proper motive for a prosecution is the desire to secure the ends of justice. It should, therefore, be shown that the prosecutor was not actuated by the desire but by his personal feelings. Malicious may sometime be inferred from absence of reasonable and probable cause.
But this rule has no general application and there may be cases where it would be appropriate not to infer malice from any unreasonableness. Further, if reasonable and probable cause is proved, the question of malice becomes irrelevant, and also defect of want of reasonable and probable cause cannot be supplied by evidence of malice. It would be proper to quote the observations of Denning, L. J., in Tempest v. Snowden (1952) 1 KB 130: "Even though a prosecutor is actuated by the most expression malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution." The above rule has been applied by the Courts of sub-continents during pre-Partition era, several decisions on this point can be referred. First case on this point is the decision of Lahore High Court in Abdul Shakoor v. Lipton & Co. (AIR 1924 Lah. 1), wherein, it was held that in suits for malicious prosecution proof of the existence of malice itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause. The same view was reiterated in Noor Khan v.
Jiwandas (AIR 1927 Lahore 120). The same view prevailed with High Court of Madras V.T. Srinivasa Thathachariar v. P. Thirunvenkatachariar (AIR 1932 Mad. 601). This view was also approved by the Judicial Committee of the Privy Council Balbabaddar Singh v. Badari Sah (AIR 1926 PC 46) and in Raja Braja Sunder Deb v. Bandeb Das (AIR 1944 PC 1 ), in last case it was further observed that malice cannot be inferred from the anger of the prosecutor.
25. The superior Courts in Pakistan have also applied the same view in (i) Abdul Rasheed v. State Bank of Pakistan (PLD 1970 Kar. 344), (2) Muhammad Amin v. Zaman Ali (PLD 1990 SC 280) (3)
Abdul Rauf v. Abdul Razaq (PhD 1994 SC 476) and (4) United Bank v. Raja Ghulam Hussain (1999 SCMR 343).
26. As regards the reasonable and probable cause is concerned, the definition given by Hawkins, J.
In Hicks v. Faulkner (1881) 8 QBD 167 that it is "an honest belief in the guilt of the accused based upon full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. It is not necessary that the prosecutor should have the belief that evidence is sufficient to secure conviction. The requirement of law would be satisfied if the prosecutor has prima facie evidence pointing out towards the plaintiff's guilt. It is not necessary that the prosecutor should enter into an examination of the strength of evidence for the defence.
He is concerned only with the question whether there is a fit case to be tried. The rule may be summed up, according to Lord Develin v. McIver in Glinski (1962 AC 726) Did the Prosecutor actually believe and did he reasonably believe that he had ,cause for prosecution.
27. The evidence adduced has to be examined to find out whether the plaintiff had established malice and absence of reasonable and probable cause for his prosecution. With regard to the malice, only the ground on which malice imputed by the plaintiff is that Lt.-Comdr. Zafar Iqbal, Deputy Director, Fishries was not competent to lodge the report under section 9 of the Act. It is not disputed that Zafar Iqbal was serving in Pakistan Navy, who was deputed as Deputy Director, Fishing Maritime Security Agency. The report lodged by him was struck down. On the ground that at relevant time, though he was competent as Navel Officer to take action under the S.R.O. But he being on deputation, with Agency, was not Fishing Officer.
28. The facts stated in the F.I.R. Are not disputed. The trawler owned by the plaintiff was found fishing in the prohibited Zone on 25-1-1992. Even the permit for fishing had expired on 20-1-1992.
NOC has been produced as Exh.D/2/1. It was valid up to 20-1-1992. The plaintiff have not disputed that the trawler was not engaged in fishing. The expiry of N.O.C. On the day of detention of the trawler viz. 25-11-1992 is also not disputed. The proceedings were quashed on technical ground that at the relevant time defendant No,3 was not a notified Fishing Officer for lodging of the Report.
Initially; the burden to prove malice on the part of the defendant was on the plaintiff. He has admitted that he does not know if the official or the defendant No,2. Had any personal grudge against him. He also admitted that he does not know of defendant No,3 had any personal prejudice, personal reservations against him. Defendant No,3 has deposed that in order to check any unauthorized fishing by Pakistan flag vessel and other vessel in Maritime Zone of Pakistan, Maritime Security Agency have been assigned job of checking of any violation.
29. The evidence on the record leads me to the conclusion that the plaintiff has failed to establish malice against the defendants.
30. Examination of the evidence on record also leads me to the conclusion that the plaintiff has failed to prove that there was no reasonable or probable cause for his prosecution under section 9 of the Act. The trawler owned by the plaintiff was found fishing in the prohibited Zone on 25-1-1992.
The N.O.C. For fishing expired. This fact alone leads to reasonable and probable cause for initiation of the report against the plaintiff. The prosecution was terminated by quashment and no evidence has been led by the plaintiff to establish the absence of reasonable and probable cause on the part of the defendant. On 26-1-1992. Plaintiff's fishing trawler was fishing in prohibited Zone, the N.O.C. Had already expired. These facts were sufficient for a prudent man to conclude that the persons responsible for illegal fishing were guilty.
31. At the outset, it may be stated that the plaintiff has failed to prove either malice in the defendants or absence of reasonable and probable cause. He is not entitled to claim any damages from the defendants. Even otherwise the plaintiff has failed to prove that he has suffered any damages at all. He has deposed that on account of news published in press, his reputation has been damaged as he was treated as criminal by his family members and others and has claimed Rs,30 million, including the damages suffered by him and his family remaining in immense tension and torture between 26-1-1992 to 20-3-1994 because of action of the defendant and he became pauper and sold entire property and loss of credibility in market but no evidence has been produced in this regard. Mere claiming of Rs,3 crore on account of loss/damages to his person, properties and his reputation cannot be granted in absence of proof. Therefore, these issues are decided against the plaintiff.
32. In view of the above reasons and findings, the suit of the plaintiff is dismissed. However, with no order as to costs.