' Since common question of law and facts is involved, therefore, I intend to dispose of all the eight civil revisions bearing C.R. No,1306 of 1996 to C.R. No,1313 of 1996 through this judgment.
2. Mst. Zohra Begum mother of the present petitioner filed a criminal complaint against 12 persons under sections 500, 506/148/149, P.P.C. In the complaint the respondent alongwith others was summoned by the Magistrate. The complaint case was Fixed on 13-11-1989 when Mst. Zohra Begum could not produce the witnesses and instead an application was moved stating that the prosecution witnesses were hesitating to appear. And therefore, summons may be issued for their attendance. The Assistant Commissioner/MIC declined the request, and on the application filed by the accused under section 249-A, Cr.P.C. Acquitted them. The concluding paragraph of the judgment of the learned Magistrate is reproduced:-- "I have heard the learned counsel for the defence and learned counsel for the complainant. The case is lingering on for a long time. No hurt etc. Was caused to the complainant and there is not verbal threat. According to the complainant her witnesses are also hasitating to come to the Court."
3. The 12 accused mentioned in the complaint filed separate suits for damages, each claiming Rs,20,000, before the Civil Judge. Narowal, on account of defamation. It is stated in the plaint that defendant filed a false complaint against the facts and law on 12-9-1987, and the plaintiff- respondent was not being respected and for two years he remained under mental and financial agony. The suit was contested by Mst. Zohra Begum who filed written statement and stated that the accused were acquitted because of the failure of the witnesses to appear in Court. After framing of the issues, the parties led evidence. The learned Civil Judge decreed the suit vide judgment and decree , dated 30-4-1992 against Mst. Zohra Begum to the tune of Rs,15,000. The other suits were also decreed in the same manner. Mst. Zohra Begum filed an appeal against the said judgment and decree, dated 30-4-1992 before the District Judge. During the pendency of the appeal Mst. Zohra Begum died. The petitioner is son of said Mst. Zohra Begum while the daughters of Mst. Zohra Begum are pro forma respondents. The appeal also failed because of its dismissal by the learned Additional District Judge, Shakargarh vide judgment, dated 26-2-1996.
4. Learned counsel for the petitioner contended that the suit filed by the respondent was not maintainable as the plaintiff had not filed the suit for damages for malicious prosecution. Further submits that it has not been alleged that the complaint was instituted with mala fide intention and with the intention of carrying the law into effect but an intention which was wrongful. Precise submission of the learned counsel is that due to mental or financial agony the suit could not have been decreed by the trial Court as all the ingredients for awarding the decree for malicious prosecution were not available to the plaintiff.
' Conversely, the learned counsel for the respondent argued that the plaintiff-respondent continued to face the trial and was involved in the criminal case by Mst. Zohra Begum, mother of the petitioner, and nobody had appeared to support the case of said Mst. Zohra in the complaint case. He relied upon PLD 1994 SC 476, PLD 2000 Karachi 214 and PLD 1979 Karachi 344.
5. I have given my conscious consideration to the contentions of the learned counsel for the parties and perused the record. It is an admitted fact that Mst. Zohra Begum filed criminal complaint under the abovementioned sections of the P.P.C. Alleging that on 5-7-1987 when she intended to plough her land 12 accused named in the complaint stopped her from doing so. Filthy abuses were hurled and she was threatened with risk of life. The complaint was dismissed vide order, dated 13-11-1989.
' It is pertinent to Mention here that no F.I.R. Was recorded against the respondents as it is evident from the fact that private complaint was lodged by the mother of the petitioner Mst. Zohra Begum, meaning thereby that no harassm ent was caused to the respondents and they were not subjected to any investigation by the police. Subsequently, mother of the petitioner filed the complaint against the respondents before the competent Court which also dismissed the same. The respondent tiled a suit for damages against the petitioner, which was decreed and appeal was also dismissed.
' It is well-settled law that in a suit for malicious prosecution onus to prove the absence of reasonable and probable cause as well as malice on the part of the defendant on instituting the prosecution lies on the plaintiff. (See AIR 1946 Allahabad page 204). In the present case no malice has been attributed to Mst. Zohra Begum. Moreover, the evidence on the record produced by the respondent-plaintiff is consistent of respondent-plaintiff's own statement and the order of acquittal passed by the Magistrate. In a suit for malicious prosecution the plaintiff must prove:-- ( I) The plaintiff was prosecuted by the defendant.
(2) Prosecution ended in plaintiff's favour.
(3) Defendant acted without reasonable and probable cause.
(4) When the defendant was equated by malice.
(5) The proceedings had affected plaintiff's reputation and the plaintiff had suffered financially.
' See PLD 1964 Dacca 618, PLD 1964 Dacca 11, PLD 1947 Privy Council 95, Muhammad Akram's case PLD 1990 SC 28, and Subedar (Rtd.) Fazle Rahim v. Rab Nawaz 1999 SCMR 700).
' From the reading of the aforesaid ingredients, described in the above-stated authorities and by the Hon'ble Supreme Court the case of the respondent did not fall within the parameter described by law. But both the Courts below decided the same in violation of the law laid down by this Court and the Hon'ble Supreme Court of Pakistan. In this case, as far as the first two ingredients are concerned, the respondent-plaintiff has proved that he was prosecuted on criminal charge and the prosecution ended in his favour as the complaint was dismissed. The Court has to consider whether the prosecution was malicious and whether the prosecution was without reasonable and probable cause. The question of reasonableness and probable cause, for the prosecution is an independent question and should not be regarded as finally answered in respondent's favour on the ground that the conviction was not recorded in the criminal case. Mere judgment of acquittal in criminal case only decides that the accused has not been proved guilty of the offence with which he had been charged. The learned Magistrate has held that the charge against the respondent to be groundless but he has not given any cogent reasons as to why the charge is false and vexatious. It appears that the learned Magistrate was influenced by the fact that the petitioner failed to produce evidence before him. Plausible explanation had been given by the petitioner's mother Mst. Zohra Begum that witnesses were not cooperating.
' The other ground which prevailed upon the trial Magistrate for the acquittal of the respondent and which influenced the mind of the learned Magistrate for acquitting the accused was that the case was old; this ground would not be sufficient for determining the proceedings as malicious. The question is not whether the respondent committed the offences or whether the petitioner moved the complaint mentioning the ahovesaid offences against the respondent, but the question is whether the respondent has proved. That the petitioner filed the complaint and had instituted the same for prosecuting the respondent with mala tide intention and without probable cause.
' In the case United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 it has been held:- "Plaintiff having failed to establish the essential ingredients, namely, malice on the part of the defendant and absence of reasonable and probable cause for initiating a prosecution he was not entitled to any damages on account for malicious prosecution."
' In the case Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 the Hon'ble Supreme Court held:- "Mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."
' In case Sardar Muhammad v. Ch. Muhammad Bashir 2000 CLC 1040 while relying on the judgment of the Hon'ble Supreme Court in Muhammad Akram's case PLD 1990 SC 28 (supra) it was held by this Court that:--- "Unless the ingredients or-Malicious prosecution are involved the plaintiff cannot succeed in the suit and therefore, following the judgment in Shaukat Nawaz' case 1988 SCMR 851 the concurrent finding of fact was set aside in revisional jurisdiction of this Court."
' The cases relied upon by the learned counsel for the respondent Abdul Rauf v. Abdul Razak PLD 1994 SC 476, PLD 2000 Karachi 214 and PLD 1970 Kar. 344 are not applicable in the facts and circumstances of the case because in those cases suit for damages was filed against the defendant wherein the plaintiff brought home enmity between the parties. The arrest and final acquittal read with reasons of acquittal order of the Magistrate the Court found that the plaintiffs were prosecuted without any reasonable cause and as such the criminal charges were based upon malice and the suits of the plaintiffs were decreed, when the plaintiffs had proved their case and it was for the defendants to establish the reasonable and probable cause to prosecute. In the present case in para.2 of the plaint, it has been mentioned by the plaintiff that mental and financial agony has been caused.
' After perusal of the judgment of the Magistrate it is clear that both the Courts below decided the case without applying their mind. Therefore, the judgments cited by the learned counsel for the respondent are distinguished on the facts and law laid down by the Honourable Supreme Court in cases of Muhammad Akram PLD 1990 SC 28 and Subedar (Rtd.) Fazale Rahim 1999 SCMR 700 is to be followed.
' The judgments of both the Courts below are result of misreading and non-reading of the record and the respondents tailed to prove all the ingredients as mentioned by the law and the Hon'ble Supreme Court in the aforesaid judgments. Therefore, the judgments of both the Courts below are not sustainable in the eye of law.
' In view of what has been discussed above, the revision petition is accepted and judgment of Civil Judge. Dated 30-4-1992 and of the Additional District Judge, dated 26-2-1996 are set aside. No order as to costs.