' Mosam Khan respondent/plaintiff filed suit claiming damages of Rs,24,500 on the ground of malicious prosecution against the petitioner/defendant in the Court of learned Civil Judge, Peshawar alleging therein that the petitioner/defendant had roped the plaintiffs/ respondent in a fictitious and false case F.I.R. No,309, dated 16-7-1996 under Arts.3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with S.279, P.P.C. And 13 West Pakistan Arms Ordinance, 1965 registered at Police Station Badaber. The respondent/plaintiff was arrested, put to trial and ultimately while extending him the benefit of doubt acquitted of the charges levelled against him by the learned Additional Sessions Judge, Peshawar vide his judgment/order, dated 8-12-1996. The said suit was resisted by the defendant/petitioner by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit vide judgment and decree, dated 24-3-2003 to the extent of Rs,24,500 plus Rs,4,000 as costs. Feeling aggrieved with the said judgment and decree the petitioner/defendant filed Appeal No,24/13 in the Court of learned Additional District Judge, Peshawar, which was dismissed vide judgment and decree, dated 23-10-2003. Being not contented with the judgments and decrees of the Courts below the petitioner/defendant has filed the revision petition in hand.
2. Mr. Khalid Khan, Advocate the learned counsel representing the petitioner argued that the petitioner had only recorded F.I.R. No,309, dated 16-7-1996 under section 3/4 P.O. Read with section 279, P.P.C. And 13, A.O. In the concerned police station, where he was on duty because not only a pistol which was recovered from the possession of the respondent but contraband was also recovered from him.
3. It was argued that the case registered by the petitioner was not fake because respondent' has been acquitted by the learned Additional Sessions Judge by giving him the benefit of doubt vide judgment/order, dated 8-12-1996.
4. It was also argued that another person with the name of Akbar Khan, S.-I. Had investigated the case, who was not impleaded as party. The S.P. And the S.H.O. Of the concerned police station were also not impleaded as defendant.
5. It was also argued that the learned trial Court has based its decree on the basis of evidence recorded in criminal case. The evidence recorded in criminal case could not be imported to the civil case and could not be made basis for grant of decree. Reliance in this regard was placed on 2001 CLC 468 and 1993 CLC 1743.
6. On the other hand Mr. Muhammad Aman Khan, Advocate the learned counsel representing the respondent argued that the vehicle which was being driven by the respondent at the relevant time had been impounded by the traffic police. The petitioner demanded illegal gratification and on reply by the respondent that his vehicle had already been impounded and that he would not pay a single penny towards illegal gratification, the petitioner got annoyed and registered a case in which latter on respondent was acquitted vide judgment and order, dated 8-12-1996.
7. It was also argued that the respondent through convincing evidence had proved that the case registered against him was fake and had to undergo agony of confinement for 5 months. Reliance in this regard was placed on PLD 1990 SC 28.
8. It was also argued that the petitioner had not taken up the plea in his written statement that it was some other Akbar Khan, who had investigated the case. This plea was taken for the first time before this Court, which could not be allowed to be taken.
9. It was also argued that there was concurrent findings of the Courts of competent jurisdiction, which need no interference in the exercise of revisional jurisdiction of this Court.
10. I have heard the learned counsel for the parties and perused the record.
11. The question that requires consideration in this case is as to whether the respondents/plaintiff was entitled to receive claimed damages amount on account of malicious prosecution, mental torture and agony undergone by him, answer to this question is in affirmative. The august Supreme Court of Pakistan in Subedar (Retd.) Fazle Rahim v. Rabnawaz 1999 SCM R 700 and Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 laid down the following elements of test for malicious prosecution:--
(i) That the plaintiff was prosecuted by defendant;
(ii) That the prosecution ended in favour of plaintiff;
(iii) That the defendant acted without reasonable and probable cause;
(iv) That the defendant was actuated by malice;
(v) That the proceedings had interfered with plaintiff's liberty and had also affected his reputation; and finally
(vi) That the plaintiff had suffered damage.
12. In order to find out as to whether the suit filed by the respondent/plaintiff, evidence adduced by him was sufficient to meet the above mentioned tests, I, therefore, take the same one by one.
13. So far as the first element is concerned, the evidence available on record is sufficient to establish that the respondent/plaintiff was prosecuted by the petitioner/defendant. It was on 16-7- 1996 that the respondent/plaintiff was driving Datson Pick-up No,PRJ 5199 and had taken Fruit to Darra Adam Khel. On his way back the Traffic Police signalled to stop the vehicle, but he did not stop the same. He was chased by the Traffic Police and on mobile phone the. Illaqa Police was also informed to stop the vehicle of the respondent/plaintiff. On police barrier at Jangali when the plaintiff stopped his vehicle, Traffic Police overpowered him, challaned the vehicle and it was impounded in the Police Station Badaber, where the petitioner asked the respondent/ plaintiff to pay him illegal gratification (as per respondent/-plaintiff) and in case of his refusal, he was threatened with dire consequences. Respondent/plaintiff refused to pay him any amount with the pretext that his vehicle has already been impounded and he would appear before the Traffic Magistrate and if found guilty, he would be fined, otherwise released. This answer of the respondent/plaintiff irritated the petitioner, therefore, he lodged F.I.R. No,309 under section 3/4 P.O., 13 A.O. And 279, P.P.C. On 16-7-1996 in Police Station Badaber (Exh.P.W.1/2). The petitioner himself investigated the case and challan of the case was put in the Court of learned Additional Sessions Judge, Peshawar wherefrom he was acquitted vide judgment/order, dated 8-12-1996. During this time the respondent/plaintiff remained in the judicial lock-up/jail for five and a half months. The above mentioned record proves that the respondent/ plaintiff was prosecuted on the report lodged and investigated by the petitioner/defendant.
14. So far as the second ingredient as to whether the prosecution ended in plaintiff's favour, answer to this proposition is in the affirmative. As mentioned above challan of the case was put in the Court of learned Additional Sessions Judge, wherefrom he was acquitted vide judgment and order, dated 8-12-1996.
15. The next element for the test of malicious prosecution is as to whether the defendant acted without reasonable and probable cause, answer to this question is in negative. It is on record that the Vehicle bearing No,PRJ-5199 was impounded by the Traffic Police, but later on when the respondent/plaintiff refused to greece the palms of the petitioner he registered a case vide F.I.R.
No,309. Not only the case registered by the petitioner was bogus but the investigation of the case was also one sided. Not only in the criminal trial but in the case in hand also the witnesses deposed against the petitioner and that was the reason that the respondent/plaintiff was not only acquitted of the charges levelled against. Him but the learned Additional Sessions Judge, Peshawar directed the high ups of the Police Department to departmentally proceed against him. Today I was informed by the learned counsel for the petitioner that the petitioner was compulsorily retired from service. After the conduct of the trial in criminal case the learned trial Court had reached to the conclusion that there was no reasonable and probable cause for registering a case against the respondent/plaintiff and that was the reason that direction for proceedings departmentally against the petitioner was given.
16. The question as to whether the petitioner/defendants' action of registration of case against the respondent/plaintiff was actuated by malice, answer to this question is also in the affirmative. Not only Pordil Khan, Attorney of respondent/plaintiff, who was examined as P.W.1 stated that the petitioner/defendant had demanded illegal gratification and on refusal by his son false case against him registered, but this fact was further supported by Rahmatullah, who was at the relevant time working as Conductor with the respondent/plaintiff on Vehicle No,PRJ-5199. He also stated in clear terms that when vehicle in question was impounded in Police Station Badaber, it was checked by the staff of the police station, respondent/plaintiff was given a traffic violation memo. (challan), but the petitioner/defendant demanded some amount from the plaintiff and threatened that in case of his refusal an F.I.R. Would be registered, but the plaintiff refused to pay any amount on which a criminal case was registered. The evidence adduced by the respondent/ plaintiff clearly indicates that the action of the petitioner/defendant registering a criminal case against him was actuated by malice.
17. The next element of test of malicious prosecution is as to whether the proceedings had interfered the plaintiff/respondents liberty and had also affected his reputation, answer to this proposition is also in affirmative. No only the respondent/plaintiff was confined in judicial lock- up/jail for five and half months, during which he had to undergo mental torture and agony, but he obviously spent huge amount on litigation (criminal case). Not only his reputation, but dignity of the entire family was spoiled. Zulfiqar Ali alias Bhutto was examined as P.W.3. He stated that the respondent/plaintiff and his family members were respectables of the area and despite being poor were living nice life in the village. The above mentioned statement also proved that the reputation of the respondent/plaintiff and his family was affected clue to registration of a false criminal case.
18. The next question which needs determination in this case is as to whether the plaintiff has suffered damages, answer to this question has been given by the Courts below concurrently and this Court finds no reason to disagree with the same.
I have not been able to find out any misreading or non-reading of evidence or any material irregularity of any jurisdictional error or defect in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition in hand is dismissed in limine alongwith C.M. No,989 of 2003.
Revision .