JUDGMENT NASIM SIKANDAR, J. - Through this single order, I intend to dispose of Civil Revisions Nos.
561, 562, 563, 564, 565 and 566 of 1991.
2. The respondents in the above petitions on 20.9.1982 filed suits for damages for marlacious prosecution to the tune of Rs. 25,000/- each. In the plaints submitted before the Civil Court, Shikargah, it was inter alia stated that they were agriculturists and educated persons coming from respectable families; that they were known to a gentleman Sahib Din son of Ibrahim with whom they had old relations; that the petitioners along with the aforesaid gentleman were present in the premises of Civil Court Shikargah when defendant got them arrested in a false case registered at his instance as F.I.R. No. 54/81 for offences under Sections 452/434/148/149/506/323 of PPC. It was claimed that the some of the petitioners were arrested and humiliated at the hands of the police at the instance of the defendant and that they could secure their release only after remaining under detention tor i.e days while the others had to get bail before arrest. It was further claimed that on the basis of an observation made by this Court, an application was filed under Section 249-A.
Cr.P.C, before Assistant Commissioner, Shikargah which succeeded and the petitioners were discharged on 22.9.1981. The plaintiffs lastly alleged that they were prosecuted with a mala i.e intention and without any legal justification and therefore were entitled to damages.
3. The suits were resisted on legal as well as factual basis. While the registration of the aforesaid case and the acquittal of the accused by Assistant Commissioner. Shikargah was not disputed, it was claimed that mere acquittal on technical grounds did not entitle them to any damages. It was affirmed that the incident attracting punishments under the said provisions of PPC as reported to Police had actually happened and therefore the entitlement of the petitioners to any damages was contradicted.
4. On the pleadings of the parties issues were framed and their evidence recorded. The learned Trial Court by way of its judgment and decree dated 17.12.1987 decided issue NO. 5 against the plaintiffs holding that-they were not entitled to the decree prayed tor. Earlier the learned Trial Court expressed the opinion that all ingredients of marlacious prosecution did not co-exist in the case of the plaintiffs and therefore they were not entitled to the decree prayed tor. In the view of the Trial Court, the plaintiffs had failed to prove want of reasonable and plausible cause or malice on the part of the defendant in prosecuting them as the damages caused on account of such prosecution. On the consideration of the evidence produced by the parties it was resolved that no damage to reputation of the plaintiffs was established and that the evidence produced by the plaintiffs lacked any weight or force.
5. The plaintiffs present respondents however partly succeeded in appeal. The learned Addl. District Judge, Sialkot on 13.3.1991 allowed their suits to the extent of Rs. 5,000/- each as damages, In the process he found that all necessary ingredients of marlacious prosecution were present in the cases before him. These ingredients being, that plaintiffs were prosecuted on criminal charge, that the prosecution terminated in their discharge, that prosecution terminated in their favour and that it was without reasonable and probable cause. While finding for the plaintiffs the learned first Appellate Court opined that bona i.e belief of the defendant in getting the criminal case registered was subjective state of his mind but nevertheless the presence of the reasonable and probable cause had to be adjudged objectively considering all aspect of the case, It was noted that the prosecution witnesses supported the plaints in all the material aspects and that the accused in the case were victimised and harassed on account of their enmity and that the case was a result of pre-meditation, consultation and deliberation. The learned first Appellate Court finally concluded that there was no reasonable and probable cause for the prosecution of the plaintiffs on the aforesaid criminal charges which were motivated by malice. The learned first Appellate Court also made a pertinent note of the fact that the defendant did not appear in the witness-box to stand the test of cross-examination. Hence, the award of damages to the tune of Rs. 5,000/-
6. Parties have been heard.
7. Learned counsel for the petitioner vehemently contends that the first appellate order is not sustainable at law inasmuch as it was totally based upon the acquittal order earlier recorded by the Assistant Commissioner, Shikargah. In the view of the learned counsel mere factum of discharge of acquittal was not a good ground to award damages for marlacious prosecution.
According to him a reasonable and probable cause being available in the present case no damages could be awarded against the defendant/present petitioner. In this regard he refers to the fact that the police after proper investigation put up a challan against the accused and, therefore, it could not be said that either the incident did not happen at all or that plaintiffs were named in the F.I.R, solely on account of there being an enmity between the parties. To support part of his contentions, learned counsel relies upon a reported judgment of 22nd June, 1883 by Court of Appeal, Queens Division Bench in re: Abrath v. The North Eastern Railway Company.
8. Learned counsel for the respondent however, supports the impugned order. She claims that all essentials of marlacious prosecution were present in this case and that the defendant prosecutor himself having avoided to take the test of cross-examination, the argument of lack of reasonable and probable cause could riot be granted.
9. I will agree. A reasonable and probable cause as rightly found by the learned first Appellate Court besides emerging from various physical situations also relates to condition of mind of the prosecutor at the particular time. The enmity between the parties, nomination of accused in the F.I.R., their arrest or imminent threat; the grant of bail by the Court, submission of challan by police and acquittal of the accused for the aforesaid reasons are established on record. Thereafter subjective state of mind of the petitioner could only be judged if he had opted to stand the test of cross-examination which he avoided without any explainable reason. Therefore, the presence of a reasonable and probable cause as evident from the aforesaid physical and perceptible aspects could conveniently be taken into account to know the state of mind of the defendant-prosecutor.
In re: Mst. Khair un Nisa Vs. M. Ishaque (PLD 1972 S.C. 25), their Lordships referred with favour a judgment of Peshawar High Court reported as re: Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 (W.P.) Peshawar 81). In that case their Lordships observed that-it was a bounded duty of a party personally knowing circumstances of the case to give evidence on his behalf and to submit to cross-examination. Further that non-appearance of a party as a witness would be strongest possible circumstance going to discredit the truth of his case.
10. Learned counsel for the petitioner is not correct in alleging that the impugned order is totally based upon the reason that the plaintiffs had been acquitted of the charge. As observed earlier the learned first Appellate Court did take that fact into consideration but it would not be correct to say that the ing damages was solely based upon the said acquittal order. The view adopted by the first Appellate Court finds support from re: Abdul Rauf v. Abdul Razzaq and another (PLD 1994 SC 476) wherein their Lordships discussed the essentials to be established by a plaintiff in case of marlacious prosecution. While explaining the term "malice" in marlacious prosecution their Lordships observed that it was not spite or hatred against any individual but of malus animus and denotes the working of improper and indirect motives. Further that proper motive for a prosecution is the desire to secure the ends of justice and it should be shown that the defendant was not actuated by such desire but by his personal feeling.
11. In a most resent judgment of the Supreme Court re: Subedar (Retd.) Fazale Rahim v. Rah Nawaz (1999 SCM R 700) their Lordships reaffirmed their earlier view as far the factors in re: Abdul Rauf (supra) were concerned which in the opinion .Of their Lordships needed t<5 be proved by the plaintiff for a decree for marlacious prosecution. All these factors appear available in this case.
12. As against the finding of the first Appellate Court, the Trial Court appears to have looked at things too casually. Its observation that the plaintiffs failed to prove want of reasonable and probable cause or malace was against the record. In fact the suits of the plaintiffs were rejected by using general remarks and without considering even the admitted facts. On the other had, learned first Appellate Court as observed earlier, considered the issue involved in the perspective of the evidence, the .Judgment of the acquitting Court as well as the fact that defendant had failed to stand the test of cross-examination. The case relied upon by the learned counsel for the petitioner is clearly distinguishable where the case issue remained direction of the Judge to the Jury to find whether the defendants had taken reasonable care to appraise themselves of the facts of the case and whether they honestly believed in the correctness of the case which they laid before the Magistrate. In this case all necessary ingredients as discussed above by their Lordships in the case re: Abdul Rauf (supra) were fully established on record. After the respondents/plaintiffs had brought home enmity between the parties, the arrest and final acquittal read with the reasons of the acquittal order of the Magistrate the burden on them stood discharged. It may be noted that after previous enmity between the parties had been admitted it was for the defendant to establish the "reasonable and probable cause" to prosecute. The respondent having failed to assail discharge order or otherwise to bring home any reasonable and probable cause for the prosecution the impugned orders still appear favourable to him as the Appellate Court allowed only part of claimed damages.
13. No case for an interference having been made out, this revision shall be dismissed.