Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

RFA. No.972/2010
JUDGMENT

Rana Shaukat Ali Khan, etc

VERSUS

Fayyaz Ahmad, etc

Date of hearing: 09.12.2015.

Appellants by: M/s Muhammad Zafar Chaudhary and Miss
Kashwer Naheed, Advocates.
Respondents by: Ch. Akbar Ali Tahir, Advocate.
Mr. Sami-ul-Hassan Rana, Advocate for
respondent No.4.

--------------------------------

Muhammad Khalid Mehmood Khan, J. The appellants filed a

suit for recovery of Rs.11.800,600/- against the respondents claiming that
appellant No.1 is an advocate by profession, the appellant No.2 is
Government employee as well as landlord, the appellant No.3 is the son
of appellant No.1 and was studying in B.A at the relevant time, all the
appellants were enjoying good reputation in the society, specially in their
Baradri, the appellant No.1 remained the member of different committee
run and managed by the Government as well as the Secretary District Bar
Association, Chunian, the detail of his membership of different
committee and District Bar Association is given in para 2 of the plaint.

2. The respondent No.1 lodged an FIR No.222/2001 under Section

458/380/411/107/171 and 365 PPC against unknown culprits and
subsequently the offence of 395 PPC was added in the FIR. The
respondents with the malafide intention through a supplementary
statement involved the appellants in the case referred to above. The
appellants asserted that the respondents are very well aware about the
character and reputation of the appellants as both the parties are the
residents of the same village. The respondents can easily recognize the
RFA No.972/2010. -:2:-

appellants if they were involved in the incident of dacoity. The appellants

were investigated by the police and they were found innocent. After the
appellants’ discharge by the competent court of law, the respondents
continued to get the appellants investigated by the Range Crimes Branch
and DSP (CIA) Kasur but the appellants in every investigation were
found innocent, that due to malafide and malice of the respondents the
appellants’ reputation was damaged, they suffered mental and health
loss, the appellant No.3 could not complete his education, the appellants
thus claimed damages as detailed in para 8 of the plaint of
Rs.11,800,600/- jointly and severally from the respondents. The
appellants however withdrew the suit against Muhammad Azeem
defendant No.3 on 17.2.2009.

3. The respondents opposed the suit and claimed that they mentioned
the name of appellants with the bonafide intention. The suit is barred by
time and frivolous. The learned trial court, out of divergent pleadings of
the parties, framed the following issues:-

“ISSUES:

1. Whether the plaintiffs are entitled to recover an amount of

Rs.1,18,00,600/- from defendants for their alleged malicious
prosecution? OPP

2. Whether the plaintiffs have no cause of action against the

defendants? OPD

3. Whether the suit is time barred? OPD

4. Whether the defendants are entitled to recover special

compensatory costs from the plaintiffs U/S 35-A of CPC? OPD

5. Relief”.

Both the parties adduced their respective evidence both verbal and
documentary, the learned trial court vide judgment and decree dated
24.7.2010 dismissed the suit, hence the present appeal.

4. Learned counsel for appellants submits that impugned judgment is

against law and facts available on record. The learned trial court has
failed to appreciate the agony of the appellants which they suffered by
attending three investigations before three investigation agencies. It is a
proven fact on record that respondents with the malafide intention
nominated the appellants in supplementary statement only to cause
RFA No.972/2010. -:3:-

damage to the reputation of appellant No.1 who is an advocate by

profession and human activist, the appellant No.1 lost his election due to
wrong involvement in the fake case. The appellant No.1 due to
fraudulent FIR developed heart disease and had undergone the heart
surgery. Learned counsel adds that even after the arrest of real culprits
and recovery of stolen articles the respondents continued to file
applications against the appellants for their false involvement in the case.
Learned counsel adds that all the three appellants thus suffered huge
loses. Learned counsel has relied on Anwarzeb V. Mushtaq Ahmed (2014
CLD 1632), Dr. Anwar Zada & others V. Mst. Yasmeen & others (PLJ
2014 Peshawar 302) and Sufi Muhammad Ishaque V. The Metropolitan
Corporation, Lahore through Mayor (PLD 1996 Supreme Court 737).

5. Learned counsel for respondents supports the impugned judgment

and submits that appellants have failed to prove any alleged loss, hence
the learned trial court has rightly dismissed the suit. Learned counsel for
respondents has relied on Hafiz Hakim Muhammad Fayaz V. Akbar Ali
(2006 CLC 489) and United Bank Limited and 5 others V. Raja Ghulam
Hussain and 4 others (1999 SCMR 734).

6. We have heard the learned counsel for the parties at length and
gone through the record with their assistance.

7. The case of appellants is that they are respectable educated

persons, the respondents with the malafide intention wrongly nominated
the appellants, the culprits through supplementary statement. The
appellants have produced the investigation Officer P.W-1, he deposed
that appellants were nominated through supplementary statements, he
investigated the allegations against the appellants and found that they are
innocent and the Magistrate accepted his report under Section 173
Cr.P.C. In cross examination he deposed that incident of dacoity was
found correct, the complainant has lodged FIR with bonafide intention,
he denied that he wrongly come to the conclusion that appellants are
innocent. Appellant No.1 appeared as P.W-2, he deposed that he is
practicing lawyer from the last 13/14 years, he remained member of
number of committees like District Khadmat Committee Kasur, District
Land Privatization Committee, District Agriculture and irrigation
RFA No.972/2010. -:4:-

Committee, District Consultation Council, District Food Stuff

committee, Legal Advisor (Panel) United Bank Limited, Legal Advisor
PTCL, General Secretary District Bar Association Kasur for the year
1993, he contested District Council Kasur election number of times, once
he contested the election for member Provincial Assembly, the appellant
No.2 is school teacher and is landlord, he belongs to a respectable
family, appellant No.3 is student of Bachelor of Arts and is the son of a
senior lawyer, they all are enjoying good reputation in the society, on 22-
23 June 2001 an incident of dacoity took place in the house of
respondent No.1, the respondent No.1 lodged FIR against unknown
culprits with the police station Changa Manga under Section 458/380,
411/365, 170/171 PPC, subsequently offence under Section 395 PPC was
also added, he and appellant No.2 are the residents of Mohallah
Mohamdi Pura, hence the complainant and appellants know each other
very closely and deeply since long, they are also the member of same
Bradari. If the appellants were related in any maner with the dacoity
incident, the respondent must have mentioned their names in the FIR. As
per contents of the FIR number of people of the village have seen the
dacoits when they were going back, the respondent No.1 with the
collusion and connivance of respondents No.2 to 4 nominated the
appellants in supplementary statements, the respondents in
supplementary statements alleged that culprits committed dacoity on the
instigation of appellant No.1, the appellant No.2 pointed out their house,
appellant No.3 remain associated with the culprits, they could not
recognize the appellant No.3 as he was wearing helmet, they recognized
the appellant No.3 from his voice. The local police and other three
agencies investigated the incident and every one found all the appellants
innocent. The police arrested the culprits and recovered stolen articles.
The Additional Sessions Judge confirmed the appellants’ bail petitions
on 15.9.2001, the appellants in connection of investigations appeared
with their witnesses before the investigation officers at Changa Manga,
Chunian, Lahore and Kasur, due to the malafide acts of the respondents
the appellants suffered loss of reputation and their family remain
disturbed, the appellants failed to pass his B.A examination. In these
circumstances it was not possible for the appellant No.1 to continue with
his profession, the appellant No.1 lost his election of Naib Nazim, due to
RFA No.972/2010. -:5:-

the malafide and collusive acts of respondent developed heart disease

and till today he is under the treatment of doctors, he has given the detail
of loss suffered amounting to Rs.11,800,600/-. In cross examination he
admitted that incident of dacoity took place in the house of respondents
and they have lodged FIR with bonafide intention, before the incident of
dacoity there was no civil litigation between the parties, however
criminal litigation was going on between the parties. He admitted that he
is not having receipts of expenses which he incurred, he is unable to give
detail of his business loss, however due to the dishonest FIR he was
unable to concentrate on his profession and he lost his entire business, he
was not paying Income Tax before the above said incident. He denied the
suggestion that during the investigation the respondents’ stance was
found correct. Appellant No.2 appeared as P.W-3 and he deposed on the
lines of P.W-2 and supported his statement. The dacoits are the relatives
of respondents and their names were known to respondents, the
respondents wrongly lodged FIR against the appellants only with the
malafide intention to defame the appellants. Appellant No.3 appeared as
P.W-4, he also supported the statements of P.W-2 and P.W-3. P.W-5
who is an advocate by profession appeared and deposed that both the
parties are known to him and he supported the version of appellants.
P.W-6 Sardar Muhammad Saddique Dogar is an advocate by profession,
he also supported the appellants version and deposed that due to wrong
FIR the appellant No.1 was humiliated in the estimation of public at
large specially the lawyers’ community.

8. Respondent No.1 appeared as D.W-1, he deposed that he lodged

FIR of incident of dacoity in his house and has not nominated any one,
he called “Khoji” they traced the foot prints of culprits up to metaled
road, on their advise the tracer dogs were engaged, the tracer dogs went
to the house of appellant No.1, when the incident took place the elections
of Nazim were scheduled, appellant No.1 agreed to appear before
“Punchait” after the elections are over, after the election were over they
called appellant No.1 but he failed to attend the “Panchait” and then he
lodged FIR against the appellants, he lodged FIR against the appellants
with bonafide intention, his intention was not to humiliate and cause loss
to the reputation of the appellant. In cross examination he admitted that
RFA No.972/2010. -:6:-

appellant No.1 was contesting election of Nazim against Rana Abbas. It

is correct that Rana Abbas has murdered his paternal brother. Probably
he has not mentioned in the FIR that while leaving his house the culprits
have threatened him if they will not compromise with the accused of
murder, they will treat them badly, at that time the accused were
convicted for the murder of his brother, he nominated the appellants after
so many days of the incident, he is not aware of the names of culprits
who threatened him, he is not aware about the name of “Khoji”, police
has not recorded the statement of “Khoji”, he admits that for conducting
investigations Riaz was filing applications on his behalf, Riaz and
Azeem were attending the investigations on his behalf, he has not filed
application for providing the tracer dogs, police has not mentioned the
name of army man who brought the dogs, the respondents compromised
with the accused of Rafaqat and the accused were acquitted, the only
accused of murder was Rana Ibad’s cousin, Rana Shaukat Ali lost the
election. It is correct that in murder case against them Rana Shaukat Ali
helped them. It is incorrect that they involved the appellants on the
asking of Rana Ibbad. It is not correct that Rana Ibbad and his brother
remain associated in the investigations. It is correct that appellant No.1 is
an advocate from the last 10/11 years. It is correct that appellants were
found innocent in all investigations. It is correct that he filed application
before DSP Chunian, he is not aware whether appellants were exonerated
and they again filed application against appellants before the Crime
Branch for change of investigation. He is not aware whether he filed
application to CIA Kasur for change of investigation, he is not aware the
appellants were discharged and acquitted by the court, however they
were released from dacoity case. Rana Javaid appeared as D.W-2, he
deposed that Fayyaz Ahmed respondent involved appellants with
malafide intention. In cross examination he admitted that he knows
appellant No.1 since long, he is thorough gentleman, he contested the
Nazim and MPA’s election, he remained member of number of
committees. It is correct that appellant No.1 contested election against
Rana Ibad Ali Khan, Rana Wahid is the cousin brother of Rana Ibbad.
Rana Wahid was convicted in the murder of respondent No.1’s brother.
It is correct that dacoits threatened respondent No.1 to compromise with
Rana Wahid, otherwise they will murder him. Liaqat is the father of
RFA No.972/2010. -:7:-

Wahid, Zahid and Shahid are the brothers of wahid. It is correct that
Rana Ibad helped Fayyaz Ahmed, he continued to appear with
respondent No.1 in investigations. He continued to appear against
appellants. Fayyaz Ahmed, etc helped Rana Ibad in election, they
worked hard for his success, they propagated against Rana Shaukat about
the registration of case, Rana Shaukat lost election due to the said reason.
The appellants were found innocent in all investigations. The witness in
cross examination specifically admitted as under:-

The respondents No.1 and 2 cross examined D.W-2, he admitted that he

filed written statement, but his lawyer has not read over the same to him.
Written statement bears his signatures. He denied the contents of written
statement, he deposed as under:-

He admitted that he signed power of attorney in favour of Ahmed Yar

Qadri Advocate, now he has changed his counsel, again admitted that:-

9. From the pleadings and evidence brought on record the incident of

dacoity is a proven fact, it is also a fact that respondent No.1 lodged FIR
against unknown persons, the appellants were nominated as accused
through the supplementary statement, D.W-1 in his statement explained
the reason for mentioning the appellants’ name subsequent to lodging of
FIR, D.W-1 deposed that when the incident of dacoity occurred he
arranged the foot tracer “Khoji” and on the advise of those “Khojis” the
sniffer dogs were arranged from Army, the sniffer dogs sat in the house
of appellant No.1, the respondents asked the appellants to appear before
RFA No.972/2010. -:8:-

the “Punchait” the appellants were busy in elections they promised to

appear before “Punchait” after election and when the appellants failed to
appear before the “Punchait” and the respondents having no other option
except to nominate the appellants their accused in supplementary
statement. It is an admitted fact that “Khoji” nor the owner of sniffer
dogs who completed the alleged search operation and any member of
Punchait was produced, the D.W-1 in his statement admitted that he has
no proof with him for requesting the Army personal to provide the
assistance of sniffer dogs, he also admitted that he is not aware about the
name of any “Khoji”. It is also proved on record that there was an enmity
between the parties. D.W-2 in his statement admitted as under:-

The respondents No.1 and 2 also cross examined the D.W-2 but the said
witness remained firm on his statement.

10. The respondents’ case is that they came to know through “Khoji”
and sniffer dogs that the appellants are the accused of dacoity and then
they through supplementary statement nominated the appellants. The
supplementary statement is available on record as Mark/P-1, although the
said document is not exhibited but it is an admitted document between
the parties being the part of FIR. The supplementary statement did not
find mentioned the story of “Khoji” and sniffer dogs as narrated by the
respondents in their statements. What the respondent No.1 stated in
supplementary statement, is reproduced as under:-
RFA No.972/2010. -:9:-

11. From the above narrated facts it is established on record that the
act of respondents to involve the appellants in the incident of dacoity was
malafide. The charge against the appellants was wrong to the knowledge
of the complainant, he misled the police by brining engineered witnesses
in support of his assertion, the complainant tried to influence the police
to sent the innocent appellants to jail. It is a settled law that if the
following elements are available the court can grant damages for
malicious prosecution:-

(a) The prosecution of the plaintiff by the defendant.

(b) There must be a want of reasonable and probable cause for that
prosecution.

(c) The defendant must have acted maliciously i.e with improbable
motive and not to further the ends of justice.

(d) The prosecution must have ended in favour of the person

proceeded against.

(e) It must have caused damage to the party proceeded against.

The Hon’ble Supreme Court of Pakistan defined the “Reasonable and

Probable cause” in Niaz and others case supra as under:-

(i) “The maxim “The reasonable and probable cause” means that it
is an honest belief in the guilt of the accused based upon full
conviction, based on reasonable grounds, of the existence of a
state of circumstances, which, assuming them to be true would
reasonably lead any ordinary prudent man to the conclusion that
the person charged was probably guilty of crime imputed. See
(1881) 8 QBD 167 Hicks v. Faulkner. It is also a settled
principle of law that if reasonable and probable cause
is established, then question of malice becomes
irrelevant as observed by Denning L.J. in Tempest v. Snowden
(1952) 1 K.B. 130”.

Learned trial court has dismissed the suit relying on the statement of
P.Ws when they admitted that the act of registration of FIR was
bonafide, the appellants’ statement is correct as the appellants were not
nominated in the FIR so all the P.Ws have rightly deposed that the act of
registration of FIR was bonafide as an incident took place in the
respondent’s house. In fact the appellants’ grievance started when the
respondents nominated the appellants through supplementary statement,
the respondents’ explanation why they named appellants in
supplementary statement was proved incorrect from the statement of
D.W-2 and record, it is proved that the culprits were the relatives of
RFA No.972/2010. -:10:-

convicted person Rana Wahid and they wanted a compromise between

the respondents and Rana Wahid. The said facts were in the knowledge
of respondents but they suppress these facts and lodged wrong FIR
against the appellants, hence the malice on the part of respondents is
proved.

12. The argument of learned counsel for respondents is that discharge

of accused by the Magistrate is not equated with the acquittal of accused,
hence suit for damages for malicious prosecution is not maintainable. In
the present case the appellants were discharged after a long
investigations, after registration of case all the appellants procured pre-
arrest bail from the court and they remain under threat of arrest in case of
withdrawal of concession of bail by the court.

13. In Pandit Gaya Parshad Tewari V. Sardar Bhagat Singh and

another (Privy Council, 1908 (35) L.R.-I.A. 189), it is ruled as under:-

“In India the police have special powers in regard to the investigation
of criminal charges, and it depends very much on the result of their
investigation whether or not further proceedings are taken against the
person accused. If, therefore, a complainant does not do beyond giving
what he believes to be correct information to the police, and the police,
without further interference on his part (except giving such honest
assistance as they may require), think fit to prosecute, it would be
improper to make him responsible in damages for the failure of the
prosecution. But if the charge is false to the knowledge of the complaint
if he misleads the police by brining suborned witnesses to support it, if
he influences the police to assist him in sending an innocent man for
trial before the magistrate, it would be equally improper to allow him to
escape liability because the prosecution has not, technically, been
conducted by him.”

14. The Privy Council again in AIR 1947 PC 108 examined the issue
of proceedings of malicious prosecution and held as under:-

“The action for damages for malicious prosecution is part of the

common law of England, administered by the High Court at Calcutta
under its letter patent. The foundation of action lies in abuse of the
process of the Court by wrongfully setting the law in motion and it is
designed to discourage the perversion of the machinery of justice for an
improper purpose. The plaintiff must prove that the proceedings
RFA No.972/2010. -:11:-

instituted against him were malicious, without reasonable and probable

cause, that they terminated in his favour (if that be possible), and that
he has suffered damage. As long ago as 1698 it was held by Holt C. J.
in 1 Ld. Raym. 374 that damages might be claimed in such an action
under three heads, (1) damage to the person (2) damage to property,
and (3) damage to reputation, and that rule has prevailed ever since.
That the word “prosecution” in the title of the action is not used in the
technical sense which it bears in criminal law is shown by the fact that
the action lies for the malicious prosecution of certain classes of civil
proceedings, for instance falsely and maliciously presenting a petition
in bankruptcy or a petition to wind up a company: (1883) 11 Q.B.D
674. The reason why the action does not lie for falsely and maliciously
prosecuting an ordinary civil action is, as explained by Bowen L. J. in
the last mentioned case, that such a case does not necessarily and
naturally involve damage to the party sued. A civil action which is false
will be dismissed at the hearing. The defendant’ reputation will be
cleared of any imputations made against him, and he will be
indemnified against his expenses by the award of costs against his
opponent. The law does not award damages for mental anxiety, or for
extra costs incurred beyond those imposed on the unsuccessful party.
But a criminal charge involving scandal to reputation or the possible
loss of life or liberty to the party charged does necessarily and
naturally involve damage and in such a case damage to reputation will
be presumed”.

15. In Abdul Majeed Khan V. Tawseen Abdul Haleem and others

(2012 CLD 6) the Hon’ble Supreme Court of Pakistan has held as
under:-

“20. Where the claimant has been subjected to a criminal

prosecution, as a consequence of which he loses or risks of losing his
liberty and/or his reputation, a remedy in the tort of malicious
prosecution will lie. The institution of a civil action should
exceptionally, results in liability under tort, when the claimant loses the
suit, the defendant’s reputation is restored and he recovers his cost
spent on defending the action. However, for malicious proceedings in
bankruptcy and winding up, which may wreck the claimant’s business,
destroy confidence in his competence and integrity and in his
company’s goodwill, a remedy in the Tort will lie.

21. It is well-known that a person who is maliciously prosecuted on

a criminal charge can sue in tort for damages if the prosecution ends in
his acquittal and the prosecution was malicious in the sense that it was
without any reasonable cause. To ground a claim for malicious
prosecution a plaintiff must prove (1) that the law was set in motion
against him on a criminal charge; (2) that the prosecution was
determined in his favour; (3) that it was without reasonable and proper
cause; and (4) that it was malicious.”

16. In another case Niaz and others V. Abdul Sattar and others (PLD
2006 Supreme Court 432) the Hon’ble Supreme Court of Pakistan has
held as under:-

“9. By Article 4 of the Constitution, it is the inalienable right of

every citizen to enjoy the protection of law and to be treated in
RFA No.972/2010. -:12:-

accordance with law and in particular no action detrimental to the life,

land, liberty, body, reputation or property of any person shall be taken
except in accordance with law. Article 14 of the Constitution also
guarantees the dignity of man and subject to law, the privacy of home.
In the context of the Constitution, it is no more necessary to hedge in an
action for damages for malicious prosecution by the condition that the
action was an abuse of the “process of the Court”. It will in our
opinion be more in consonance with the genesis of the Constitution,
Articles 4 and 14 in particular, to say that the foundation of the action
for damages for malicious prosecution lies, not in the abuse of the
process of Court, but in the abuse in the process of law. For, if we bear
in mind the ground realities of life existing in our country, it should
appear plainly that proceedings before the police afford a stronger
ground for an action for malicious prosecution than proceedings in a
Court of law, for it is an unfortunate fact that, as things are, human
dignity suffers or is likely to suffer more at the hands of the police than
in a Court of law. One of the modes to achieve this goal is to file a suit
for damages against the offenders by the aggrieved persons. It is the
duty of the members of the Bar Association and Bar Council to educate
the people and to file suits for damages against the offenders apart
from the criminal proceedings.

10. We have also re-examined the evidence in the interest of justice

and fairplay. We are of the view that both the courts below were
justified to award nominal damages to the petitioners. It is a high time
to put the nation on a right path to promote the law of tort. According
to us in case citizens and the courts are conscious to save the nation
from the agony of telling lies or involving innocent persons in criminal
cases, then the only solution to stop this frivolous litigation for the
purpose of taking revenge from the other side is to file suits for
damages as and when the competent forum has declared the accused
persons as innocent acquitted/discharged by the competent court so
that prosecution must lodge genuine cases”.

17. Now the question is whether the appellants have proved the loss
claimed or not? The appellant No.1 has deposed that he incurred huge
expenses in attending the investigations. All the three appellants secured
bail and incurred legal expenses. D.W-2 admits that appellant No.1 lost
election due to the registration of FIR against him. P.W-6 and P.W-7
have deposed that they are the member of law fraternity and due to
registration of false case against appellant No.1 he was humiliated in
District Bar Chunian. The appellant No.1 further deposed that due to
wrong involvement in the case he was unable to do his business i.e
Advocacy and lost his clients, he also suffered a heart attack and
undergone a heart surgery, however he has not given the separate details
of each loss. The Hon’ble Supreme Court of Pakistan in Abdul Majeed
Khan case supra, in these circumstances, has held as under:-

“It is, however, correct that the petitioner has failed to quantify the
damages claimed by him as required under the law. This does not mean
 RFA No.972/2010. -:13:-

that the petitioner was not entitled to the grant of general damages
under the rule of thumb on the face of the material brought on record
by him during trial”.

The Court in these circumstances of the case has the powers to grant
general damages to plaintiffs/appellants keeping in view of the pleadings
and evidence brought on record, we thus grant Rs.10,00,000/- the
compensation/ damages to appellant No.1, the appellant No.2 and 3 have
not brought any evidence on record, hence the appeal to their extent is
dismissed. The appeal of appellant No.1 is allowed and appellant No.1’s
suit is decreed against respondents No.1, 2 & 4 with costs.

(Shahid Bilal Hassan) (Muhammad Khalid Mehmood Khan)

Judge Judge

Announced in open Court on 17.02.2016.

(Shahid Bilal Hassan) (Muhammad Khalid Mehmood Khan)

Judge Judge

Imran/*
*Approved for reporting*