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HCJDA 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
R.F.A. No.9388 of 2020
Ch. Zafar Muhammad Iqbal
Versus
Mst. Kausar Parveen and others

JUDGMENT

Date of hearing: 25.09.2023

Appellant(s) by: Mr. Masood Ahmad Zafar, Advocate

Respondent(s) by: Rai Shaukat Ali, Advocate

SHAHID BILAL HASSAN-J: Succinctly, the present

appellant instituted a suit for recovery of Rs.62,500,000/- on the

basis of malicious prosecution, against the respondents by

maintaining that he belongs to a very respectably family having

good reputation/character in society as well as qualified person;

that Mst. Kausar Parveen alongwith other defendants/

respondents filed miscellaneous applications by creating

fictitious, fabricated and bogus occurrence; that respondents got

lodged FIR No.345 of 2017 against the present appellant by

mentioning a false and fabricated occurrence under sections

506-B/379 PPC at Police Station, Saddar Pattoki, whereas no

such occurrence took place; that after detail investigation by the

concerned authorities, a cancellation report was prepared which

was submitted to the concerned Area Magistrate, who agreed

with the same and discharged the present appellant. The other
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miscellaneous applications were also dismissed by the

concerned authorities; that due to above mentioned applications

the present appellant suffered mental agony and torture; that the

said allegations affected the honour and reputation of

appellant’s family; that due to such mala fide applications, the

appellant suffered irreparable loss to his health and business;

therefore, he claimed damages on the basis of malicious

prosecution. The respondents/defendants were summoned but

despite service they did not appear before the learned trial

Court, so they were proceeded against ex parte on 21.02.2018.

The appellant produced his ex parte evidence, oral as well as

documentary. The learned trial Court vide impugned ex parte

judgment and decree dated 03.01.2020 dismissed suit of the

appellant; hence, the instant appeal.

2. The learned counsel for the petitioner has argued

that learned Court below has wrongly decided the case against

appellant and has failed to appreciate the material available on

record in true perspective; that the appellant has proved his case

by leading cogent and convincing evidence but even then he has

been non-suited; that impugned judgment and decree passed by

learned Court below is the result of misreading and non-reading

of evidence on record; that the learned Court below has

committed illegality and material irregularity while passing the

impugned judgment and decree; that the impugned judgment

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and decree is against the law and facts of the case, therefore,

same is liable to be set-aside by allowing the appeal in hand.

3. On the other hand, the learned counsel, representing the

respondents has supported the impugned judgment and decree

and has prayed for dismissal of the appeal in hand.

4. Heard.

5. Undeniably, in the plaint, the appellant/plaintiff

has prayed for award of damages on account of leveling of false

allegations against the respondents in the FIR lodged against

the appellant, with malice and due to this an inquiry was

conducted which ended in favour of the appellant as

cancellation report was prepared, which was submitted before

the learned Area Magistrate, who agreed with the same and the

appellant was discharged; however, it is, by now, a settled law

that every criminal prosecution/inquiry which ends in the

clearing of opponent will not per-se entitle the opponent to file

a suit for compensation. Successful proceedings initiated under

this law required that the original proceedings must have been

malicious and without cause. There is no cavil to the fact that

every person in the society had a right to set in motion

Government and Judicial machinery for protection of his rights

but said person should not infringe the corresponding rights of

others by instituting improper legal proceedings in order to

harass by unjustified litigation. In a reported case titled

Muhammad Akram v. Mst. Farman Bibi (PLD 1990 Supreme

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Court 28), Hon'ble Supreme Court has reckoned conditions

that have to exist for an action for malicious prosecution to be

successful. The first two of these conditions are required for the

issue of maintainability whereas the remaining three are to be

proved; furthermore, the said conditions must exist conjointly.

These conditions are as follows:

 i) That the plaintiff was

prosecuted by the defendant;
 That the prosecution ended in
plaintiff’s failure;
 That the defendant acted without
reasonable and probable cause;
 That the defendant was actuated
by malice;
 That the proceeding had inferred
with plaintiff’s liberty and had
also affected her reputation; and
finally
 That the plaintiff had suffered
damages.

This precedent has further been reiterated invariably in case of

Niaz and others Vs. Abdul Sattar and others (PLD 2006

Supreme Court 432).

6. Touching to the first requirement that is the

initiation of the criminal prosecution. Black's Law Dictionary

defines the term 'prosecution' as "a criminal proceeding in

which an accused person is tried". A prosecution exists where

criminal charge is made before a judicial officer or tribunal. A

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malicious prosecution is an abuse of the process of the Court by

wrongfully setting the law in motion on a criminal charge. To

be actionable as a tort, the prosecution must have been

malicious and terminated in favour of the plaintiff. The mere

filing of a complaint before the police authorities on the basis of

allegation was not a "legal wrong”. Another ingredient is to see

that whether the initiation of the prosecution was with a

reasonable and probable cause. The circumstances between the

parties are to be taken into consideration in order to determine

the state of mind of the prosecutor and the defendant. However,

jealousy and grudges held by defendants against plaintiffs will

not amount to reasonable cause. The next and striking

ingredient for the action for compensation is that the criminal

prosecution should have been initiated with malice. Black's

Law Dictionary has defined the term 'malice' as wrongful

intention. The term 'malice' has been elaborated and defined in

the authoritative judgment reported as, Abdul Rasheed v. State

Bank of Pakistan (PLD 1970 Karachi 344). The operative para

No.7 is relevant and for ready reference is reproduced

hereunder:-

"7. The term "malice", in a prosecution of the

nature which is before me, has been held not to be
spite or hatred against an individual but of 'malus
animus' and as denoting the working of improper
and indirect motives. The proper motive for a
prosecution is the desire to secure the ends of
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justice. It should, therefore, be shown that the

prosecutor was not actuated by this desire but by
his personal feelings-See Mitchell v. Jenkins
((1833) 5 B & Ad 588); Pike v. Waldrum ((1352) 1
Lloyd's Rep. 431) and Stevens v. Midland Counties
Ry. ((1854) 10 Ex. 352). Further, malice should be
proved by the plaintiff affirmatively:- Abrath v. N.
A Ry. ((1886) 11 A.C 247). Malice may sometime
be inferred from absence of reasonable and
probable cause, but this rule has no general
application and there may be cases where it would
be appropriate not to infer malice from
unreasonableness. Further, if reasonable and
probable cause is proved, the question of malice
becomes irrelevant, and also defect of want of
reasonable and probable cause cannot be supplied
by evidence of malice-See Turner v. Ambler
((1847) 10 Q B 252) ; Mitchell v. Jenkins; Brown
v. Hawkes ((1891) 2 Q B 718) and Herniman v.
Smith ((1938) A C 305). It would be proper here to
quote the following observation of Denning, L. J.
(as he then was) in Tempest v. Snowden ((1952) 1
K B 130) "Even though a prosecutor is actuated by
the most express malice, nevertheless he is not
liable so long as there was reasonable and
probable cause for the prosecution." The same
rule has been applied by the Courts in India and
Pakistan. Several decisions on this point were
brought to my notice by Mr. Fazeel. The first case
on this point is the decision of the High Court,
Lahore, in Abdul Shakoor v. Lipton & Co. (AIR
1924 lah. 1) where it was held that in suits for
malicious prosecution, proof of the existence of
malice itself is not sufficient but should be
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accompanied by proof of absence of reasonable

and probable cause. The Lahore High Court
reiterated this view in Nur Khan v. Jiwandas (AIR
1927 Lah. 120) and Gobind Ram v. Kaju Ram
(AIR 1939 Lah. 504). The same view prevailed
with the High Court of Madras in V.T. Srinivasa
Thathachariar v. P. Thiruvenkatachariar (AIR
1932 Mad 601). This view also found approval of
the Judicial Committee of the Privy Council in
Balbhaddar Singh v. Badri Sah (AIR 1926 PC 46)
and in Raja Braid Sunder Deb and others v.
Bamdeb Das and others (AIR 1944 PC 1) in which
last case it was further observed that malice
cannot be inferred from the anger of the
prosecutor."

The term 'malicious prosecution' is defined in Black's Law

Dictionary as "The institution of a criminal or civil proceeding

for an improper purpose and without probable cause. In a case

reported as Muhammad Yousaf v. Abdul Qayyum (PLD 2016

SC 478), the Apex Court of the country has defined malicious

prosecution as "a tort which provides redress to those who have

been prosecuted 'without reasonable cause' and with

'malice'....".

7. It is evident from the perusal of above mentioned

judgments, passed by the August Court of the country that suit

of the plaintiff(s) for recovery of damages on the basis of

malicious prosecution was not decreed even in those cases

where the plaintiff(s) were discharged and even where the

proceedings under section 182 of P.P.C. were initiated against

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the defendants/complainants. In view of the above discussion, it

is evident that basic ingredients to establish and prove a case for

recovery of an amount as damages for malicious prosecution,

are not established in the instant case, and in absence of said

ingredients, the suit of the appellant/plaintiff cannot be decreed

in his favour as in the instant case only an FIR was lodged or

certain other miscellaneous applications were filed, wherein no

malice was found on the part of the respondents. The litigation

between the parties over drainage of waste water is admitted

which shows that hostility occurs between the parties. The

stance of the appellant has not been proved by him through

cogent and confidence inspiring evidence. Neither consistent

trial was made nor the appellant was arrested by the police,

therefore, the appellant has failed to prove any dishonor and

mental as well as financial loss, alleged to have been caused to

him via lodging of FIR ibid or filing of miscellaneous

applications.

8. In view of the above, the appeal in hand fails,

which is hereby dismissed with no order as to the costs.

(Rasaal Hasan Syed) (Shahid Bilal Hassan)

Judge Judge

Approved for reporting.

Judge
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