Student Teacher

Sikander Yar khan (133) Mr.Amjad

Semester/Section: Subject:

3rd(C) (LLB 5 year) LAW of Torts ||

Department of Law

Faculty of Islamic Learning

Islamia University of Bahawalpur

2012 C L C 644

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J.

and Raja Saeed Akram Khan, J

MUHAMMADNAZIRKHAN-----Appellant

versus

MUHAMMADAMEER----Respondent

Civil Appeal No.14 of 2007, decided on 17th January, 2012.

(On appeal from the judgment of the High Court, dated 3-11-2006 in Civil Appeal No.5 of
2006).

(a) Maliciousprosecution---

----Suit for recovery of amount on the ground of false and malicious prosecutionPlaintiff
filed a suit for recovery of amount on the ground that defendant had instituted a false and
baseless private complaint, which was dismissed by the Trial Court and Appellate Court
below---Plaintiff claimed that due to said false complaint he was
entitled to recovery of suit amount because prosecution was malicious---Defendant in his
written statement had denied all the allegations stating that he had correctly filed the
complaint against the plaintiff---Trial Court had considered the contents of plaint, written
statement and evidence produced by the parties and after detailed examination of evidence,
concluded that plaintiff had failed to prove his case Findings of the Trial Court were upheld
by the Appellate Court below and High Court---Validity---Nothing was in the statements of
witnesses wherefrom it could be ascertained that the prosecution of the plaintiff was
malicious Onlyevidencewhichwasproducedbytheplaintiffwasthathewasacquittedin
saidprivatecomplaintfiledbythedefendant/complainant Frommereacquittal,itcouldnot
be said that prosecution of the plaintiff was malicious one; it was necessary for the plaintiff to
prove in the suit for damages that his prosecution was without reasonable cause and
malicious---If a person had got reasonable and probable cause, the prosecution could not be
described as malicious because he had got enmity---Whatever was stated by the plaintiff or
his witnesses, the defendant cross-examined the witnesses and no material point was left in
cross-examination---Plaintiff also failed to prove that he had suffered damages due to
prosecution and that the proceedings had interfered with his liberty and affected
his reputation Appeal was dismissed by SupremeCourt.
Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Haji Muhammad Latif Khan v.
Muhammad Hanif 2007 SCR 125; Muhammad
Arif v. Muhammad Boota and 4 others 2007 SCR 363; Muhammad Latif Khan and 2 others v.
Muhammad Afsar Khan PLD 2000 SC (AJ&K) 31; Naber Shaha v. Shamsuddin and others
PLD 1964 Dacca 11 and Muhammad Mantazuddin v. Shamsur Rahman PLD 1964 Dacca
618rel.

(b) Civil Procedure Code (V of1908)---

----O. VIII, R.5---Specific denial---If the allegation in the plaint was not denied by the
defendant in clear terms or by necessary implication; and if there was evasive denial, such
denial could not be considered; and allegation in the plaint, would be considered to be correct.
Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC (AJ&K) 109 ref.

(c) Qanun-e-Shahadat (10 of1984)---

----Art. 133---Cross-examination of a witness---Cross-examination of witness was a right of

adverse party; and if a particular portion of the statement of a witness was not cross-
examined, that would be deemed to be admitted true---If the statement of any witness would
go against the defendant and he failed to cross-examine on that point, then the point would be
deemed to be admitted.
Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.
Asghar Ali Malik, Advocate for Appellant.
Syed Nazir Hussain Shah Kazmi, Advocate for Respondent.
Date of hearing: 10th January, 2012.

JUDGMENT
MUHAMMAD AZAM KHAN, C.J.---The captioned appeal with leave of the court arises
out of a judgment of the High Court dated 3-11-2006 whereby second appeal filed by the
appellant, herein, has been dismissed.

2. The appellants filed a suit for recovery of Rs.100,000/- in the Court of Civil Judge
Pallandari on 23-12-1999 on the ground of malicious prosecution against the defendant-
respondent, herein. The trial Court dismissed the suit for want of proof. An appeal filed before
the District Judge was dismissed. Second appeal filed by the plaintiff- appellant was also
dismissed, hence this appeal withleave.

3. Mr. Asghar Ali Malik, counsel for the appellant, argued that the judgment of the High
Court is not maintainable on the ground that plaintiff has specifically alleged the fact of
malicious prosecution which was not denied. There is no specific denial on part of the
defendant. It is settled law that evasive denial is no denial in the eye of law. The learned
counsel referred to the case reported as Qurban Hussain v. Mst. Bashir Begum and 6 others
[PLD 1986 SC (AJ&K)109].
The rule of law laid down in referred case titled Qurban
Hussain v. Mst. Bashir Begum and 6 others and reported as [PLD 1986 SC (AJ&K) 109] lays
down that there must be specific denial on part of the defendant. The denial must be specific
or by necessary implication in the written statement. If the allegation is not denied
specifically, then it shall be deemed to be admitted by the defendant. The defendant must deal
specifically with allegation of fact, to which he doesn't admittrue.
The learned counsel further argued that the High Court and the Courts below have committed
misreading and non-reading of evidence, therefore, the impugned judgment is not
maintainable. He argued that the plaintiff-appellant in his Court's statement alleged
specifically the details of malicious prosecution. The defendant-respondent failed to cross-
examine the plaintiff. It is settled law that if a party fails to cross-examine a witness on
material point, which goes against the party, then the fact shall be deemed to be admitted. He
referred to the case reported as Islamuddin and others v. Ghulam Muhammad and others
[PLD 2004 SC633].
The case reported as Islamuddin and others v. Ghulam Muhammad and others [PLD 2004 SC
633] lays correct law that under Article 133 of the Qanun-e-Shahadat Order, 1984, if a
defendant fails to challenge the statement of plaintiff on material point relating to the
controversy between the parties, the presumption shall be that statement of witness to such
extent was proved against the defendant. Same principle of law has been enunciated by this
Court in a number of cases.
Lastly the learned counsel argued that the plaintiff- appellant, herein, has proved the fact that
defendant-respondent, herein, filed a baseless complaint of criminal charges in the Court of
Magistrate, which was dismissed and appeal before the Sessions Judge was also dismissed,
therefore, it was enjoined upon the Courts below to award a decree on the basis of malicious
prosecution in favour of the plaintiff. He referred to the case reported as Muhammad Akram
v. Mst. Farman Bi [PLD 1990 Supreme Court 28].
The case reported as Muhammad Akram v. Mst. Farman Bi [PLD 1990 Supreme Court 28]
contains general principles for awarding damages on the ground of malicious prosecution. We
will apply the general principles laid down in this authority while deciding the question.

4. While controverting the arguments of the counsel for the appellant, Syed Nazir Hussain
Shah Kazmi, counsel for the respondent, argued that there are concurrent findings of two
Courts below, which are affirmed by the High Court. The concurrent findings of facts based
on evidence, recorded by the two Courts below and affirmed by the High Court are immune
from interference by this Court. He also submitted that there is no misreading or non-
reading of evidence. The learned counsel referred to and relied upon the cases reported as
Haji Muhammad Latif Khan v. Muhammad Hanif [2007 SCR
125] and Muhammad Arif v. Muhammad Boota and 4 others [2007 SCR363].
In the case reported as Haji Muhammad Latif Khan v. Muhammad Hanif [2007 SCR 125] this
Court held that concurrent findings on the question of facts shall not be disturbed unless the
same are based on some misreading or non-reading of evidence.
Similarly in the case reported as Muhammad Arif v. Muhammad Boota and 4 others [2007
SCR 363] the same view is reiterated that where there are concurrent findings on the question
of fact then this Court shall not embark upon fresh appreciation of evidence in second
appeal even if erroneous view has been drawn by both the Courtsbelow.
The learned counsel further argued that the appellant failed to prove the case that he was
maliciously prosecuted, therefore, all the three Courts after analysis of evidence correctly
dismissed the suit. The learned counsel referred to and relied upon the case reported as
Muhammad Latif Khan and 2 others v. Muhammad Afsar Khan PLD 2000 SC (AJ&K) 31.
In the case reported as Muhammad Latif Khan and 2 others v. Muhammad Afsar Khan PLD
2000 SC (AJ&K) 31 it was held by this court that plaintiffs were also required to prove that
the defendant prosecuted them without any reasonable or probable cause. The plaintiffs have
failed to prove such fact, therefore, the suit for damages was rightly dismissed by the High
Court.

5. We have heard the learned counsel for the parties and perused the record. The appellant
filed a suit for recovery of Rs.100,000/- on the ground that the defendant instituted a false and
baseless private compliant under sections 148, 149, 427, 447, 504, 506 and 452, A.P.C. in the
Court of SDM, Magistrate First-Class, on the ground that the plaintiff, on 26-8-1993, has
damaged his crops and grass while letting his cattle for grazing in his fields and on his protest
he attacked him with a pistol and tried to murder his wife and children. The complaint was
dismissed by the trial Magistrate on 12-12-1998. The appeal before District and Sessions
Judge Pallandari was also dismissed on 25-6-1999. The plaintiff claimed that due to false
complaint he is entitled for recovery of Rs.100,000/- because the prosecution was malicious.
The record reveals that in the written statement the defendant categorically denied all the
allegations and stated that he has correctly filed the complaint. A perusal of the judgment of
the trial Court shows that the trial Court has considered the contents of plaint, written
statement and evidence produced by the parties and after detailed examination of evidence
concluded that the plaintiff failed to prove his case. There are concurrent findings of facts on
the record. It is well-settled law that concurrent findings of facts based on record cannot be
disturbed in second appeal. The High Court also observed that there is no misreading or non-
readingofevidence.AlthoughitisnotthedutyofthisCourttoanalyzetheevidencebutwe,
for our own satisfaction, have perused the evidence and reached to the conclusion that no
portion of the record was left out of the consideration by the Courts below.

6. The moot point in the case is that whether there is any evidence in support of the allegation
that prosecution of appellant was without any reasonable ground and it was malicious or not.
From the statement of witnesses we have reached to the conclusion that there is nothing in the
statement of witnesses wherefrom it could be ascertained that the prosecution of the plaintiff-
appellant was malicious. The only evidence which was produced by the plaintiff was that he
was acquitted in the private complaint filed against him. From mere acquittal it cannot be said
that prosecution of the plaintiff was malicious one. It is necessary for the plaintiff to prove in
a suit for damages that his prosecution was without reasonable cause and malicious. If a
person has got reasonable and probable cause, the prosecution cannot be described as
malicious because he has got enmity. In the case reported as Muhammad Akram v.
Mst. Farman Bi [PLD 1990 Supreme Court 28] the Supreme Court of Pakistan observed that
for grant of a decree of damages following have to beproved:---

"(i) That the plaintiff was prosecuted by the defendant;

(ii) That the prosecution ended in plaintiff'sfavour.

(iii) That the defendant acted without reasonable and probablecause.

(iv) That the defendant was actuated bymalice.

(v) That the proceedings had interfered with the plaintiff's liberty and had also affected her
reputation; andfinally.

(vi) That the plaintiff had suffereddamage."

In the case reported as Naber Shaha v. Shamsuddin and others [PLD 1964 Dacca 11] it was
observed as under:---
".... Plaintiff's respectability and prestige may be the basis for determining the amount of
compensation to be awarded to the plaintiff in a suit for malicious prosecution, but that
prestige and respect are not very much material for the purpose of finding
that the prosecution was malicious and withoutreasonable
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"
Similarly in the case reported as Muhammad Mantazuddin v. Shamsur Rahman [PLD 1964
Dacca 618] it was held as under:---
"
18. However, wrong-headed a prosecutor may be, if he honestly thinks that the accused has
committed a criminal offence, he cannot be considered as the initiator of malicious
prosecution. For action for malicious prosecution, the prosecution must be initiated with
malicious spirits, that is, from an indirect and improper motive and not in furtherance of
justice. In initiating a prosecution, the intention must be to injure the party rather than
vindicate the law. Malice has been described as any wrong or indirect motive. Even malice
alone is not enough. Absence of reasonable probable cause must be shown."
This Court in the case reported as Muhammad Latif Khan and 2 others v. Muhammad Afsar
Khan PLD 2000 SC (AJ&K) 31observed as under:---
"5. We have given due consideration to the matter. The moot point in the case is that whether
there is any evidence in support of the allegation that the prosecution of the appellants was
without any reasonable ground. It may be stated that the learned counsel for the appellants
could not point out any such evidence; he only stressed that, as the appellants were acquitted
by the Tehsil Criminal Court they were entitled to the compensation. It may be stated that as
is evident even from the case reported as Jogendra Garabadu and others v. Lingeraj Patra and
others (AIR 1970 Orissa 91), relied upon by the learned counsel for the appellants, it is
necessary for the plaintiff to prove in a suit for damages that his prosecution was without any
reasonable ground. The mere fact that the accused-appellants were acquitted would not justify
to award them compensation for malicious prosecution without proving the aforesaid fact. A
reference may be made to the cases reported as Khawaja Muhammad Naseem v. Shafiqur
Rehman (1996 CLC 1460) and Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) in
support of the view that it is also necessary for the plaintiff to prove that the defendant
prosecuted him without a reasonable or probablecase."

7. We have considered the argument of the counsel for the appellant that defendant has not
denied the fact of malicious prosecution, therefore, it is deemed to be admitted. The law on
the point is settled that Rule 5 of Order VIII, C.P.C., provides that if the allegation in the
plaint is not denied by the defendant in clear terms or by necessary implication and if there is
evasive denial, such denial cannot be considered and allegation in the plaint is considered to
be correct. A perusal of the plaint and written statement shows that the defendant- respondent,
herein, categorically denied the allegation in the plaint. The argument of the learned counsel
for the appellant is without anyfoundation.

8. Another argument of the counsel for the appellant is that if a part of the statement of
plaintiff or the witness goes against a party and the party fails to cross-examine the witness on
such point, that part of the statement is deemed to be admitted by such party. Under Article
133 of the Qanun-e-Shahadat Order, 1984, cross-examination of witness is a right of adverse
party and if a particular portion of the statement of a witness is not cross-examined, that is
deemed to be admitted true. The rule of law laid down in the case reported Islamuddin and
others v. Ghulam Muhammad and others [PLD 2004 SC 633] is correct. Similar view has
been expressed by this Court in number of cases that if the statement of any witness goes
against the defendant and he fails to cross-examine on that point, then the point will be
deemed to be admitted but there is nothing stated in the statement of plaintiff which was not
cross-examined. A perusal of the statement of the witnesses shows that whatever was stated
by the plaintiff or his witness, the defendant cross-examined the witnesses and no material
point was leftuncross-examined.

9. On the principle of law laid down in the above-referred cases we have examined the record.
The plaintiff proved that he was prosecuted by the defendant and prosecution ended in
plaintiff's favour but he failed to prove that defendant acted without reasonable and probable
cause and the prosecution was actuated by malice rather defendant has a reasonable cause to
prosecute the plaintiff. The plaintiff also failed to prove that he had suffered damages due to
prosecution and the proceedings had interfered with his liberty and affected his reputation.
The result of the above discussion is that finding no force in this appeal, it is hereby dismissed
with no order as to thecosts.

H.B.T./20/SC(AJ&K) Appeal dismissed.