This appeal is to challenge the validity of judgment and decree recorded by Additional District Judge, Muzaf farabad dated 26-6-2000
2. .Khurshid Iqbal appellant brought a suit for damages amounting Rs,1,50,0 00 for defamation along with Rs,50,000 deposited by him in the bank. It was claimed by him that he belonged to a respectable family and he was tax payer also. On 23-5-1984 when he was running a shop at Chatter Baza r. a person namely Asid Malick came to his shop. The aforesaid person asked him to identify him before the bank authorities as he wanted to open an account with the Allied Bank of Pakistan, Muzaf farabad Branch. Asid Malick was known to him, therefore, the appellant accompanied him to the bank and introduced the said person with the bank officials. After some time the manager of the bank approached the appellant and disclosed that Asid Malick had defrauded the bank by taking away Rs,50,000 from the bank as such the service of then Manager of the bank was at the risk if the said amount was not deposited with the bank by the appellant being his introducer . The appellant keeping in view his family honour deposited Rs,50,000 with the bank at the request of the manager who also assured him to produce the said person who defrauded the bank. The appellant and the manager had been searching for the said person but respondents Nos.1 and 2 secretly managed to register a criminal case under sections 419/420, A.P.C. Against the appellant, his father and brothers etc. On account of which they were arrested. This action on behalf of the respondents was malicious to defame or lower down the honour and dignity of the appellant and his family . It was also averred in the plaint that the criminal case registered against him stood decided in favour of the appellant and he was acquitted honourably . He, through the present suit has requested the Court for payment of Rs,1,50,000 being damages for defamation and Rs,50,000 being the amount which he has deposited with the bank at the request of the manager .
3. The defendant-respondents resisted the suit inter alia on the other grounds that the appellant manoeuvred to open a fictitious account with the bank by producing a fictitious person namely Asid Malick. Thereafter , he deposited a foreign demand draft in the said account number which in fact was in the name of any other person having the same name on which the acco unt was opened with the bank. When this fraud came to the knowledge of the respondents, the appellant himself on intimation by the bank deposited Rs,2,000 and 3,000 on 25-1-1984 and 28-1-1984 respectively . The deposit of amount by the appellant, according to their version, amounted to confession of his guilt. It was also pleaded in the written statement that the amount was drawn from the bank by the appellant, his brother and father and so-called Asid Malick never turned-up to draw the money deposited in the account. It is admitted in the written statement that a criminal case was registered against the appellant alongwith his relatives and the same was dismissed for want of proof. However , they claimed that they were neither heard during the trial of the case nor they were intimated to attend the proceedings. They , according to them, neither defamed the appellant and his family nor they intended to do so. The appellant and his family , if disgraced or defamed, it was due to his fraud which he committed with the bank. The trial Court after submission of written statement named the relevant issues and the parties were directed to lead evidence in support of their respective claims. The plaintif f- appellant produced Ghulam Qadir , Karimullah, Muhammad Kabir-ud-Din, Mr. Ashfaque Kayani, Advocates and he also recorded his own statement as witness. On the other hand, Muhammad Sabir Qureshi, Manager Allied Bank, Civil Secretariat, Muzaf farabad and Musarrat Hussain Abbasi a bank official recorded their Court statements in support of the defendant-respondents. At the conclusion of the evidence the suit was disallowed by the trial Court through the impugned judgment and decree:
4. The learned counsel for the appellant argued that his client was prosecuted in a criminal case maliciously registered at the instance of respondents as no reasonable cause was available to launch criminal proceedings against him. The action of the respondents defamed the appellant and his family as such their position in the society has been lower down. The respondents exerted undue influence upon the appellant to deposit Rs,50,000 with the bank by threatening him with dire consequences if the amount was not deposited with the bank, the learned counsel argued. A particular reference was made during arguments to the Court statements of Karimullah P.W. And Musarrat Hussain Abbasi D.W. And it was contended that these two statements were not considered by the trial Court. According to the learned counsel, so-called Asid Malick himself went to the bank and opened his account, however , was identified by the appellant, therefore, no role for commission of forgery or fraud by the appellant appeared from the evidence and the trial Court fell in error while disallowing the suit by the plaintif f- appellant. The learned counsel further submitted that registration of the case and presence of Asid Malick with the bank are an admitted fact as transpired for the pleadings and evidence brought on record. The appellant was acquitted honourably and no fraud by him was established, therefore, his prosecution was maliciously initiated at the instance of respondents. During his arguments, he relied upon the following case-law:--
(1) PLD 1964 Dacca 111; (2) PLD 1969 Dacca 985; (3) PLD 1970 Karachi 757; (4) PLD 1963 Karachi 155; and
(5) 1993 SCMR 1 185.
5. Conversely , it was argued on behalf of respondents that the burden to prove malicious prosecution was placed on the appellant and he failed to discharg e the same in the light of evidence. Moreover , a reasonable cause was available with the respondents to initiate criminal proceedings against the appellan t as Rs,50,000 were drawn from the bank through father and brothers of the appellant by defrauding the bank, therefore, this suit was rightly disallowed by the trial Court. It was furthe r submitted that the criminal case registered against the appellant and his relatives was dismissed for want of proof meaning thereby the appellant was not acquitted in the case. The learned counsel relied upon the following case-law:
(1) 1996 MLD 2017 ; (2) 1999 SCMR 700 ; (3) 1995 CLC 1 134 and (4) 1996 CLC-1460 .
6. Before arriving at some conclusion, it is felt expedient to examine law cited at Bar . In Naber Shah's case ( PLD 1964 Dacca 1 11) it was observed as under: "Plaintif f's respectability and prestige may be the basis for determining the amount of compensation to be awarded to the plaintif f in a suit of malicious prosecution, but that prestige and respect are not very much material for the purpose of finding that the prosecution was malicious and without reasonable and probable cause. Bare malice also is not enough to pass a decree in a suit for damages for malicious prosecution, but there must be absence of reasonable and probable cause. If a person has got reasonable and probable cause, the prosecution cannot be described as malicious simply because he has got enmity . The trial Court, it seems to us, did not understand the full scope of enquiry in the suit and of the burden of proof. In a suit for malicious prosecution it is incumbent on the plaintif f to prove not only the prosecution but also that the prosecution was out of malice and without reasonable and probable cause." In Nayeb Ali Dafadar's case ( PLD 1969 Dacca 985 ) the following observation was made:-- "Tort--Malicious prosecution--Mere setting law in motion--No . Criterion--Foundation of action--Malice may be shown at any time in course of inquiry--Guiding principles for making defendant responsible for damages (i) person making complaint does not go beyond what he believes to be correct and (ii) gives honest assistance in inquiry and prosecution--Plaintif f a man of substance and member of affluent family named by defendant in complaint to police as suspect for theft--Plaintif f arrested and kept in Hajat over night, bailed out next day and subsequently discharged on recommendation of police--Existence of defendant's jealousy and grudge against plaintif f overwhelmingly proved--Facts showing no reasonable or probable cause for naming plaintif f as a thief and thus characterising him as a criminal--Malice of defendant, in circumstances held, obvious and suit for compensation against defendant decreed." In Abdul W ahab Khan's case ( PLD 1970 Karachi 757 ), the learned Judges observed as follows:-- "Tort--Malicious prosecution--Burden of proof--Heavy on plaintif f--Plaintif f not only to prove prosecution ending in his favour but also that it was without reasonable and probable cause--Plaintif f alleging to have been falsely implicated in criminal case due to malice--Defendant failing to adduce evidence in rebuttal of allegation--Plaintif f, in circumstance, could be said to have proved that prosecution was without reasonable and probable cause." In Qurban Ali's case (PLD 1963 (W .P.) Karachi 155) the learned Judges held as follows:-- "It is for the Civil Court to make an independent inquiry on the question whether the plaintif f was or was not guilty of the offence with the commission of which he was charged by the defendant, and in a suit for damages for malicious prosecution, the acquittal is a fact in issue, and the judgment of acquittal is admissible not only to establish that the plaintif f was in fact acquitted, but the circu mstances which resulted in his acquittal. The grounds, however , on which the acquittal was based are not relevant, and it was for the Civil Court to inquire into the relevant question as also whether there was reasonable and probable cause for the complainant." In Muhammad Yousaf Shah's case ( 1993 SCMR 1 185) it was observed as under:-- "All the three Courts below have come to the conclusion as a fact that the prosecution of the plaintif f was without any t'oundation and intentionally initiated to persecute and harass him to harm his reputation and to subject him to mental agony and torture and lower him down in the eyes of public. In the presen ce of these factual findings, we have no other option but to hold that he was rightly awarded damages by the trial Court, maintained by the High Court and their decisions are not exceptionable." In Fazale Rahime's case ( 1999 SCMR 700 ) it was observed as follows:-- "In the present case the petitioner stepped into the witness-box to give evidence but all that he stated was that the case registered by the police against him on the report lodged by the respondent was disposed of under section 169, Cr.P.C. And thereafter , a case was instituted against the respondent for malicious prosecution. The respondent was then found guilty by the M'agistrate upon his own confession and was convicted. However , as it can be clearly spelt out from the order of the Magistrat e itself, such confession had been made by the respondent due to the reason of his protracted trial and delaying tactics employed by the prosecution. Therefore, it was not a confession simpliciter , in such circumstances, the learned Judge in the High Court did not find such evidence sufficient to sustain the said decree against the respondent. The petitioner no doubt, had also relied upon the evidence of one Radi Gul, Moharrar , then posted at Police Station Batagram, but his evidence was not materially different from that given by the petitioner . However , the evidence of the witnesses further indicated that an altercation had taken place between the parties on 10-4-1986 before lodging of the F.I.R. By the respondent. Although, in the F.I.R. Lodged by the respondent, he had accused the petitioner of firing at him, which charge was found to be false by the police, but before the Court the respondent stood by his earlier statement made by him in the F.I.R. Such evidence was, therefore, not found sufficient by the learned Judge in the High Court to warrant awarding of the decree against the respondent. Consequently , the revision filed by the respondent was allowed, In our opinion, the view taken by the learned Judge in the High Court does not appear to be unreasonable, as evidently the petitioner appears to have failed to establish that the respondent had invented such prosecution against him or that he had acted with malice or without reasonable or probable cause. The mere fact that the petitioner was discharged in the earlier case under section 169, Cr.P.C. Or that the respondent was, subsequently , prosecuted by the police under section 183, Cr.P.C. Is not sufficient, by itself, to' establish a case of malicious prosecution against the respondent. The entire onus in such case would be on the plaintif f which the petitioner appears to have failed to discharge this case. In Sher Muhammad's case ( 1995 CLC 1 134) it was observed as follows:-- "In order to succeed in an action for malicious prosecution the plaintif f must in the first instance prove two things; (I) that prosecution was malicious and (II) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger .
However , wrongheaded a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough, there must also be shown to be absence of reasonable and probable cause." In Khawaja Muhammad Naseem's case ( 1996 CLC 1460 ), it was held as follows:-- "The admitted facts of the case that complaint was lodged by the petitioner with the police with the allegations mentioned therein with a gist reproduced above and with the ultimate result in favour of the respondent. For the success of malicious prosecution, it is the bounden duty of the complainant to prove the following points:--
(i) That the plaintif f was prosecuted by the defendant;
(ii) that the prosecution terminated in favour of the plaintif f:
(iii) that the prosecution was initiated against the plaintif f without reasonable and probable cause;
(iv) that the prosecution was initiated with a malicious intention i,e, not with intention of carrying the law into effect but with an intention which was wrong in point of fact." In Muhammad Latif's case (PLD 2000 SC (AJ&K) 31) the learned Judges made the following observation:-- "Malicious prosecution--Suit for damages--Necessary for plaintif fs to prove that their prosecution was without any reasonable ground- Mere fact that plaintif f/accused were acquitted, would not justify to award them compensation for malicious prosecution without proving said fact."
7. After examining above-referred authorities on the point of damages claime d on the ground of malicious prosecution, it may be observed that the plaintif f was under legal obligation to prove before Civil Court that the prosecution which ended in his favour was not the prosecution but it was persecution. He was under heavy burden to prove that no reasonable or probable cause or justification was available of his prosecution. There should be evidence before Civil Court in a suit for damages to show that the plaintif f was prosecuted out of enmity , ill-will hatred and malice without any reasonab le cause or justification on the part of defendant. Keeping in view the above-stated legal position, the facts of present case were examined with care and caution. The facts on the ground of which the present suit for damages has been brought before Civil Court did not suggest to allow the suit because it is not proved by the plaintif f-appellant that he was maliciously prosecuted. No enmity , grudge, ill-will hatred or malice is shown on the part of defendants. Secondly , the evidence brought on record shows that the bank authorities were defrauded and there was reasonable cause entitling them to have legal course against the appellant. The person who was introduced and identified by the appellant never turned-up so as to draw the money and the amount was drawn by the father and brothers of the appellant. The foreign demand draft is found to be in the name of another person having same name i,e, [sad Mahmood Malick. It appears that foreign demand draft somehow or the other was received by the appellant and he managed to open the account by producing a fictitious person and thereafter the amount was collected from the bank. These are the facts which reasonably entitled the defendant to initiate criminal proceedings against the appellant and it cannot be said that the criminal action was without any reasonable cause. It is correct that the criminal case was dismissed under section 249-A of Cr.P.C. But this fact by itself is not sufficient under law to claim damages from the defendant-re spondents in view of settled law as mentioned above. Moreover , the appellant was neither discharged nor acqu itted but the criminal case was dismissed only .
8. The result is that the impugned judgment and decree is found to have been recorded in the right direction which does not deserve to be reversed. The appeal, therefore, stands dismissed.