1

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH. JUDICIAL DEPARTMENT

C.R.No. 217-A/2010.

JUDGMENT

Date of hearing 11.12.2017

Petitioner (Ishtiaq Hussain

Shah) by:

Mr. Tahir FarazAbbasi,

Advocate.

Respondent (Mushtaq Hussain

Shah) by:

Mrs. Raheela Mughal,

Advocate.

SYED ARSHAD ALI, J:-The petitioner through the

instant revision petition has called in question the

judgment and decree of learned Additional District

Judge-IV, Haripur, dated 19.02.2010 whereby the learned

Additional District Judge, dismissed appeal No. 153/13

of 2009 filed by the petitioner against the judgment and

decree of learned Civil Judge-III Haripur dated

26.11.2009.

2. Brief facts of the case are that respondent

Mushtaq Hussain Shah filed a Civil Suit No. 339/1 on

18.04.2005 against the present petitioner for recovery

ofRs. 24000/- as damages for his prosecution in a

criminal case FIR No. 07 dated 02.01.2002 under Section

2

337 A(ii)/34 PPC of Police Station Khanpur, wherein the

plaintiff was acquitted being innocent vide order dated

31.07.2004. The defendants were summoned by the

learned trial Court. Defendant No. 1/petitioner herein,

appeared and contested the suit by filing written

statement. The learned trial Court framed issues and

fixed the case for evidence of the plaintiff. The

plaintiff/respondent concluded his evidence and

thereafter the case was fixed for the evidence of

defendant/petitioner. The defendant/petitioner failed to

produce his evidence thus his right of defense was struck

of by invoking provisions of Order-XVII Rule-3 CPC by

the learned trial Court and the case was fixed for

arguments. After hearing arguments of learned counsel

for the parties, the learned trial Court decreed the suit of

plaintiff/respondent for recovery of Rs. 20,000/-. Feeling

dissatisfied, the present petitioner filed Civil Appeal No.

153/13 before the learned District Judge, Haripur which

was entrusted to learned Additional District Judge-IV,

Haripur for disposal. The learned Additional District

Judge-IV, Haripur dismissed the appeal vide judgment

and decree dated 19.02.2010, hence, the instant revision

petition.

3. Arguments heard and record perused.

3

4. The brief but essential facts of the case are

that defendant Isthiaq Hussain Shah lodged an FIR No.6

on 02.01.2002 at police station Khanpur under section

337-A(ii)/34 PPC, wherein it is mentioned that the said

Ishtiaq Hussain Shah alongwith his injured

auntMst.Maryam was standing outside the door of his

house when his neighbor Musthaq Shah, the plaintiff

came and gave a stick blow on his forehead and injured

him. At the sametime Akbar Shah alongwith Tajamul

Shah his sons came and beaten the complainant Ishtiaq

Hussain Shah with fists and kicks and Mehtab Shah

caused injury to the mother and aunt of the complainant

with stone. The injured were sent for medical

examination at RHC, KotNajeebullah where Dr. Nazakat

Karim examined them and found the following injures on

their bodies:-

“Ishtiaq Hussain Shah:-

Lacerated 2” x ½” x bone deep

with profuse bleeding at anterior

part of scalp. Bone under the

wound is exposed and rough,

patent with severe giddiness and

semi-conscious with BP 70/50

(Shock).

Bruise with swelling over right

shoulder.

Mst. Maryum Bibi:- Bruise with

swelling over forehead with

tenderness.”

4

5. Complete challan was submitted before

competent Court. At the trial, the complainant as well as

witnesses appeared before the learned trial Court.

However, the learned trial Court in view of compromise

at earlier stage and by extending benefit of doubt to the

accused acquitted them from the allegations. On the basis

of such acquittal they filed a suit, which was decreed by

the learned trial Courts below.

6. Indeed in the plaint, the

plaintiff/respondent has asked for award of general

damages on account of malicious prosecution. It is by

now settled law that every criminal prosecution which

ends in the acquittal of accused will not per-se entitle the

accused to file a suit for compensation. Award of

compensation for criminal prosecution in our country is

not backed by any statutory law or instrument. The tort of

malicious prosecution has its origins in the English

Common Law. Successful proceedings initiated under

this law required that the original proceedings must have

been malicious and without cause. While having a glance

on the judge made law at England, one can infer that out-

right judicial acceptance of this law was not very

forthcoming initially. This is because of the fear that the

right of individualswho have been wrongedto seek legal

5

redress may be undermined if the law of malicious

prosecution is employed too zealously and too liberally.

Chief Justice Holt in the English case of Johnson and

wife v. Browning [(1704), 6 Mod. 216], stated that

‘though this action [malicious prosecution] will lie, yet it

ought not to be favoured, but managed with great

caution.’ The famous English Jurist and Judge, William

Blackstone justified this repugnance to the law of

malicious prosecution by holding;“it would be a very

great discouragement to the public justice of the

Kingdom if prosecutors, who had a tolerable ground of

suspicion, were liable to be sued at law whenever their

indictments miscarried.”And so it was only in blatantly

frivolous cases where Judges would entertain suits for

malicious prosecution. This view continued well into the

19th century until perceptions began to change owing to a

desire to make the criminal justice system more

defendant-oriented and to that end, more

‘merciful’.Today the tort of malicious prosecution is an

important deterrent which ensures protection to those

who have been falsely and wrongly implicated/involved

in court proceedings.

7. The importance of the need for a balance

between the right of the aggrievedlitigant to move the

6

Court and the tort of malicious prosecution isnot lost on

the Courts in Pakistan. In case titled Anwarzeb v.

Mushtaq Ahmed [2015 MLD 601 Peshawar]this Court

highlightedthis need in the following terms:

“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

unjustifiable litigation”.

The honourableLahore High Court also observed

in Ghulam Hussain and another versus Muhammad

Rafique [2015 MLD 1583 Lahore] that:-

“said tort (malicious prosecution)

balanced the competing principles,

namely freedom that every person

should have in bringing criminals

to justice and the need for

restraining false accusations

against innocent persons.

Malicious prosecution was an

abuse of the process of the court by

wrongfully setting the law in

motion on a criminal charge.”

8. Inorder to comprehend the concept of malicious

prosecution, it would be appropriate to go behind its

meaning and definition.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.”Ballentine’sLaw Dictionary

7

defines it as, “The institution of any action or proceeding,

either civil or criminal, against another maliciously and

without probable cause”.In Muhammad Yousaf v. Abdul

Qayyum [PLD 2016 SC 478], the august Supreme Court

of Pakistan defined malicious prosecution as“a tort

which provides redress to those who have been

prosecuted ‘without reasonable cause’ and with

‘malice’….”.

In the case titled Mehrban v. Ghulam Hassan

[2016 CLC 1585 Peshawar (D.I. Khan Bench)], the

Peshawar High Court defined malicious prosecution as

being:-

“an action instituted with

intention of injuring defendant

and without probable cause. The

meaning of malicious

prosecution has been given as

filing a law suit with intention of

creating problems for the

defendant such as costs,

attorney’s fees, anguish, or

distraction where there is no

substantial basis for the suit. If

the defendant in the law suit wins

and has evidence that the suit

was filed out of spite and without

any legal or factual foundation,

he/she may, in turn, sue for

damages.”

The Sindh High Courtalso defined the said term in the

case titled Israr Ali v. Mst. Ahmedi Begum etc. [1990

MLD 1834 Karachi] as“A malicious prosecution may

8

thus be defined as one that is begun in malice, without

probable cause to believe it can succeed, and finally ends

in failure”.

9. Now moving on to the issue that what

constitute the essential elements for malicious

prosecution. The same as per Black’s Law Dictionary

are “(1) the initiation or continuation of lawsuit (2) lack

of probable cause for the lawsuit’s initiation; (3) malice;

and (4) favorable termination of the original lawsuit.”

The requisite elements for an action for malicious

prosecution in England (laid down by Viscount Simonds

in the case of “Glinski v. McIver [1962 A.C. 726, at p.

742]” and in America (as laid down in Evans v. Alabama

Professional Health Consultants, Inc. 474 So.2d 86.)

are substantially the same. In both England and America,

for a plaintiff to succeed in a claim for malicious

prosecution, these essential ingredients– which are

universal in their nature – must be present

contemporaneously. In Indiaalso these very elements

wereaffirmed by the Patna High Court in Nagendra

Kumar v. EtwariSahu [Citation: AIR 1958 Pat. 329].As

far as our own jurisdiction is concerned, in cases titled

Niaz etc. v. Abdul Sattar etc. [PLD 2006 SC 432],Abdul

Majeed Khan v. Tawseen Abdul Haleem etc. [SC 2012

9

CLD 6],Rana Shaukat Ali Khan etc. v. Fayyaz Ahmad

etc. [2017 MLD 120 Lahore],Muhammad Yousaf v.

Abdul Qayyum [supra],Marine Management Company

v. Government of Pakistan [PLD 2000 Kar215],Hussain

Gul v. Soorat Shah and others [2014 MLD 1008

Peshawar], and Muhammad Akram v. Mst. Farman Bi

[PLD 1990 Supreme Court 28], our superior Courts have

enumerated similar 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

contemporaneously (rel: Muhammad Saeed v. Jan

Muhammad [2006 YLR 2201 Lahore High

Court]).These conditions are as follows:

i) That Plaintiff was prosecutedby the Defendant;

ii) That the prosecution ended in favour of the

Plaintiff;

iii) That the Defendant acted without reasonable and

probable cause;

iv) That the Defendant was actuated by malice (with

improbable motive and not to further the ends of

justice); and

v) That the proceedings had interfered with the

Plaintiff’s liberty and had also affected his

reputation and the Plaintiff had suffered damages.

10

In addition, an action for malicious prosecution is

generally available as a remedy to one who has been

wrongly involved/implicatedin a criminal prosecution.

However, an abuse of civil proceedings may also afford

the right to a Respondent to bring an action for malicious

prosecution. Reliance is placed on cases titled Abdul

Majeed Khan v. Tawseen Abdul Haleem etc.

[supra],Gregory v. Portsmouth Council (2001) 1 ALL

ER 560 andDr. Abdul QadirAkhund v. ShahilaPerveen

[2017 MLD 666 Sindh].

10. Moving on 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”.In

America, a proceeding must have been actually

commenced against a person before he has a cause of

action for wrongful or malicious prosecution (rel: Paton

v. Rose (Dist Col App) 205 A2d 609; Blenn v. Morrill,

90 NH 109, 5 A2d 42);a mere threat to prosecute is not

actionable (rel:McDonald v. Carper, 252 NC 29, 112

SE2d 741), nor is an unsuccessful attempt to secure the

institution of proceedings, however malicious and

unfounded (rel: Melvin v. Pence, 76 App DC 154, 130

F2d 423, 143 ALR 149). It was laid out in the case of

11

Rosario v. Amalgamated Ladies’ Garment Cutters’

Union [Local 10, I.L.G.W.U., C.A.N.Y., 605 F2d 1228,

certiorari denied 100 S.Ct. 1853, 446 U.S. 919, 64

L.Ed.2d 273, appeal after remand 749 F.2d 1000] that:

“one of the essential elements of

an action for malicious

prosecution is the prior

commencement or continuance of

an original criminal judicial

proceeding.”

As far as civil proceedings are concerned, it was laid out

in the case of National Surety Co. v. Page [C.C.A Va, 58

F.2d 145, rehearing denied 59 F.2d 370] that, “where

the other essential elements are present, an action may

be maintained for the malicious institution or wrongful

initiation of a civil action or proceeding”. Moreover, an

action may lie not only for the commencement of the

original proceeding but also for its continuation (Rel:

Laney v. Glidden Co., 194 So. 849, 239, Ala. 396).

11. This court observed in the case titled

Mehrban v. Ghulam Hassan [supra] that:-

“A prosecution exists where

criminal charge is made before a

judicial officer or tribunal. A

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.”

12

In the case of Niaz etc. v. Abdul Sattar etc.

[supra]), the August Supreme Court of Pakistan held that

a prosecution may not be entirely mala fide, but the

continuance of such prosecution, after it has been

discovered that the facts upon which it was based were

not true, may give rise to a claim for damages for

malicious prosecution. In the case of Dr. Abdul

QadirAkhund v. ShahilaPerveen [supra], the Sindh

High Court held that the:

“filing of an application/complaint

did not earn right of filing a suit

for damages because it did not

fulfill the term ‘prosecution’ which

necessarily require commencement

and carrying out of any action or

scheme.”

In the case of Summit Bank Ltd. v. Mohammad Ramzan

[2016 MLD 139 Islamabad], the Islamabad High Court

held that:

“the mere filing of a complaint

before the police authorities on the

basis of a dishonouredcheque or

outstanding finance was not a

“legal wrong”.

12. Further moving on to the ingredient as to

whether the initiation of the prosecution was with a

reasonable and probable cause.In England, the

term‘reasonable and probable cause’, has been defined

13

in the case ofHicks v. Faulkner (1881) 8 QBD 167

wherein Hawkins J.described it as being

“an honest belief in the guilt of

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

come to the conclusion that the

person charged was probably

guilty of crime imputed.”

The House of Lords approved this definition in

Herniman v. Smith [(1938) A.C. 305].This definition

has also been adopted by Jordan CJ of the Supreme

Court of New South Wales inMitchell v. John Heine &

Sons Ltd., Supreme Court of New South Wales, 1938,

38 N.S.W.S.R. 466.In the more recent English case

titled Willers versus Joyce and another [2016 SCMR

1841 Supreme Court of UK], the UK Supreme Court

observed, by a majority view, that:

“In order to have reasonable and

probable cause, the defendant

did not have to believe that the

proceedings would succeed; it

was enough that, on the material

on which he acted, there was a

proper case to lay before the

court.”

Finally, the said term has been further defined in

Salmond on the Law of Torts, 9th Edition, page 658-

659as

14

“Having regard, however, to the

facts known to the defendant, he

must show a reasonable sound

judgment and use reasonable

care in determining whether

there are sufficient grounds for

the proceedings instituted by

him, and any failure to exhibit

such judgment or care will be

imputed to him as a want of

reasonable and probable cause.”

The Courts in India have also adopted this very

definition referred to above (reliance: Abdul Shakur v.

Lipton & Co., AIR 1924 Lah. 1; Vogiozis v.

PappaDemisrian 20 I.C. 180). Furthermore, in the case

of Province of East Bengal and others v. S.M.

Faruque and others [PLD 1959 Dacca 268], the term

reasonable and probable cause was defined as follows:

“The law on the subject is well-

settled. It is stated in Clerk and

Lindsel on Torts, 9th Edition,

p.662, that an individual should

not be harassed by legal

proceedings improperly instituted

against him. It is the right of

every one to put the law in motion

if he does so with the honest

intention of protecting his own or

public interest. But it is an abuse

of that right to proceed

maliciously and without

reasonable and probable cause

for anticipating success. Hence

the question is: What is meant by

“reasonable and probable

cause”. “Reasonable and

probable cause” means a genuine

belief based on reasonable

grounds that the proceedings are

justified.”

15

13. The August Supreme Court has, in Niaz

etc. v. Abdul Sattar etc. [supra], adopted the definition

of the subject term as laid out in Hicks v. Faulkner

[supra]. Explanation regarding the subject term has also

been given in Ghulam Nabi Khan v. Azad Government

of State of Jammu & Kashmir [1984 CLC 325] in the

following terms:

“Probable cause means the Bona

fide prosecution rests on

circumstances sufficiently strong

and convincing to warrant a man

of ordinary prudence to entertain

an impression and belief that

person accused was guilty of

offence with which he was

charged.”

It was further held in Walayat Khan v. Abdul Usman

[1990 CLC 37] that:

“Let it be borne in mind that if a

person initiates criminal

proceedings against another, in a

matter which, from its very

nature, he reasonably believes as

a man of ordinary prudence, does

not constitute a criminal offence

and rests exclusively with a Civil

Court to adjudicate upon; such

action of his shall be deemed as

prosecution without reasonable

and probable cause and as such

malicious in nature”.

In the case of Muhammad Aslam v. Muhammad

Ibrahim [2000 CLC 154] it was held that the

16

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 (rel: Nayeb Ali Dafadar

v. Abdul Ghani alias Gutu Mia [PLD 1969 D 985]).

14. Elaborating 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. Hence, any act done

with wrongful intention or recklessness is malicious. As

per Salmond, Jurisprudence, at p. 374 (1966),any act

done with one of these mental elements is, in the

language of law, malicious. PerBaron Parke, Brown v.

Hawkes (1891) 2 Q.B. 718, it was defined as some

other motive than a desire to bring to justice a person

whom he honestly believes to be guilty.In the more

recentEnglish case titled Willers versus Joyce and

another [supra], the UK Supreme Court observed, by a

majority view, that:-

“Malice was an additional

requirement; it required the

claimant to prove that the

defendant deliberately misused the

process of the court --- Most

obvious case was where the

17

claimant could prove that the

defendant brought the proceedings

in the knowledge that they were

without foundation, however there

may be other instances of abuse ---

For example, a person may be

indifferent whether the allegation

was supportable and may bring the

proceedings, not for the bona fide

purpose of trying that issue, but to

secure some extraneous benefit to

which he had no colour of a right -

-- Critical feature which had to be

proved was that the proceedings

instituted by the defendant were

not a bona fide use of the court’s

process.”

15. In America, the Courts have recognized

‘malice’ as an essential element and have called it the

“gist” of an action for malicious prosecution (rel:

Adams v. Home Owners’ Loan Corporation

C.C.A.Neb., 107 F.2d 139). The Courts in America

haveobservedthat since malice is a mental state, which

must be proven, it is a fact which must be found by the

finder of fact as it cannot be established by legal

presumption (rel: Owens v. Kroger Co., 430 So.2d 843,

Allstate Ins. Co. Moulton, 464 So.2d 507 and Freezer

v. Miller, 176 S.E. 159, 163 Va. 180). Furthermore, it

has been observed that aprosecution is found to have

been brought maliciously where it was brought with an

improper or sinister purposeor in reckless disregard of

the rights of others (rel: Hickland v. Endee, D.C.N.Y.,

18

574 F.Supp. 770, affirmed 732 F.2d 142 and

Shepard v. Byrd, D.C.Ga., 581 F.Supp. 1374) Finally,

in Brodrib v. Doberstein, 140 A. 483, 107 Conn. 294,it

was observed that as a general rule, the use of criminal

process for private purpose also shows the existence of

malice.

16. The Indian Courts explain ‘malice’ as an

improper or indirect motive, i.e. some motive other than

a desire to vindicate public justice or private right (rel:

Jamnadas v. Chunni Lal (1920) I.L.R. 45 Bom. 227;

Imperial Tobacco Co. v. Bonnon, AIR 1928 Cal. 1;

Mushoorappa v. Hanumanthappa, AIR 1947 Mad.

236; Laxmichand v. Union of India, AIR 1955 Nag.

265).

17. In our own jurisdiction the Sindh High

Court inIsrar Ali v. Mst. Ahmedi Begum [supra]relied

on the Indian case titledBabuSumat Prasad v. Ram

SarupSastry [AIR 1946 All 204] wherein it was defined

in the following terms:

“Malice means the presence of

some improper and wrongful

motive that is to say, some motive

other than desire to bring to

justice a person whom the

prosecutor honestly believes to be

guilty”.

19

In case titled Afroz Qureshi v. Muhammad Ikram

Siddiqui [1995 CLC 735 Karachi], the term malice was

defined as the “working of improper and indirect

motives, which plaintiff must prove affirmatively”. In

case titledAbdul Rauf v. Abdul Razzak[PLD 1994 SC

476], the term ‘malicious’ has been defined by the

Supreme Court of Pakistan in the following terms:

“The term ‘malicious’ in a

prosecution of this nature of

present suit 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 just. It should,

therefore, be shown that the

prosecutor was not actuated by

the desire but by his personal

feelings.”

The Sindh High Court followed this definition in case

titled Marine Management Company v. Government

of Pakistan [supra].In the more recent case

ofMuhammad Yousaf v. Abdul Qayyum [supra], the

Supreme Court of Pakistaninterestingly held that

“malice is a state of mind and can be inferred from the

circumstantial evidence”.In the said case the

complainant had not initially nominated the accused in

the original FIR but added the latter’s name in the FIR

at a later point in time after having received information

20

from a third-party, who, although perfectly able to

attend Court and testify, was not produced or called as a

witness by the complainant

18. The Plaintiff who bring the claim for

compensation on account of malicious prosecution must

also establish the connection between the reasonable &

probable cause and the malice. In Willers versus Joyce

and another [supra], the UK Supreme Court held that

“for purposes of bringing a claim for malicious

prosecution the requirements of “absence of reasonable

and probable cause” and “malice” were separate

requirements although they may be entwined.”

However, be that as it may, the proof of absence of

‘reasonable and probable cause’ must co-exist

alongside‘malice’. In Willers versus Joyce and another

[supra], Lord Toulson, JSC, referred to Lord Devlin’s

opinion in Glinski v. McIver [1962] AC 726 at 765,

wherein the latter had observed:

“it is commonplace that in order

to succeed in an action for

malicious prosecution the plaintiff

must prove both that the

defendant was activated by malice

and that he had no reasonable

and probable cause for

prosecuting.”

19. The August e Supreme Court in Niaz etc.

v. Abdul Sattar etc. [supra]placed reliance on the

21

English case of Tempest v. Snowden 1952 1 K.B. 130

wherein Lord Denning L.J. observed that “if

reasonable and probable cause is established, then

question of malice becomes irrelevant.” It was held in

the case of Abdur Rashid v. State Bank of Pakistan

and another [PLD 1970 Kar 344] that, “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.”This naturally means that the person

bringing an action for malicious prosecution has a

heavy burden to discharge, as was observed in Willers

versus Joyce and another [supra].Mere fact that a

Plaintiff was prosecuted and acquitted will not suffice

for the purposes of bringing an action for malicious

prosecution so long as he also proves the absence of

reasonable and probable cause and malice (rel: Fazale

Rahim v. Rab Nawaz [1999 SCMR 700]).

20. The burden to prove malicious prosecution

(i.e. want of probable cause and malice) is on the

Plaintiff (see: Ishtiaq Ahmed v. Raees Ahmed [1991

CLC 1114]).As far as malicious prosecutions arising

out of civil suits are concerned, “the plaintiff has to

allege false and malicious prosecution of the suit, as

22

well as sufferance of special damages, as a result

thereof” (rel: Muhammad Ashraf v. Inayat Ali [1993

CLC 576]).

21. For an action for malicious prosecution to

succeed, the Plaintiff must prove that he has suffered

damages/loss as a result of wrongful prosecution. In the

English case of Savile v. Robert [(1698) 1 Ld. Raym.

374], Holt C.J. referred to three types of damages which

a Plaintiff might suffer because of a malicious

prosecution and these were (a) the fair name of the

person involved (i.e. reputation); (b) the safety and

liberty of the person; and (c) the security of his property

by reason of the fact that he has to spend money in

getting himself acquitted. The majority of the Indian

Courts are in agreement with Savile v. Robert [supra]

except for the Indian case of Ali Mohammed v. Zakir

Ali [AIR 1931 All. 665]wherein the Allahabad High

Court recognized that damages were only to person and

property – not reputation.

22. The term ‘damages’ was defined in the

case of IsmatUllah Cheema v. Sarfaraz Ahmad &

others [PLD 2006 L 503] as

“compensation to vindicate the

stand of the aggrieved person and

to hold that there was no

23

substance in the allegations

leveled against a person.”

The Courts in Pakistan also recognize ‘damages’

as an essential condition, which has to be satisfied for

an action for malicious prosecution to succeed. In the

case of Summit Bank Ltd. v. Mohammad Ramzan

[supra], the Plaintiff had filed a suit for damages for an

allegedly wrongful complaint filed by the Defendant-

bank against him before the police authorities on the

account of a dishonouredcheque. The said suit was

decreed by the trial Court below in favour of the

Plaintiff, thereby awarding him damages. However, the

Islamabad High Court found that nothing existed on the

record to establish any wrongful act committed by the

Defendant-bank or that on account of the acts of the

Defendant, some loss was occasioned by the Plaintiff.

The said Court further held that the mere filing of a

complaint before the police authorities on the basis of a

dishonouredcheque or outstanding finance was not a

“legal wrong” and nothing existed on the record which

showed any loss was suffered by the Plaintiff which

entitled him to damages. The Islamabad High Court,

while setting aside the decree of the trial Court below,

found that the “present case was therefore neither

based on malicious prosecution nor any wrongful act

24

committed by defendant”.HOWEVER,it must be noted

that while it is essential for the Plaintiff to establish

damages suffered by him, the“fact that exact amount

was not determinable could not be reason for dismissal

of a suit for malicious prosecution.”(Rel: Muhammad

Akram v. Farman Bi [PLD 1990 SC 28])

23. In the case of Anwarzeb v. Mushtaq

Ahmed [supra] the Plaintiff had filed a suit for

damages on the ground that his reputation had suffered

due the Defendant’s action of lodging an application

with the DPO by leveling frivolous allegations against

him. However, the trial Court dismissed the suit due to

the non-mentioning and proving of quantum of

damages. The Plaintiff in the said case had not specified

damages and, therefore, the Peshawar High Court

observed that general damages had to be assessed and

defined the term “General damages” as being those

damages which “which law would imply in every

violation of a legal right” and that “General damages

would not be needed to be proved by strict evidence as

same would arise by inference of law even though no

actual pecuniary loss had been or could be shown.” As

far as quantifying damages in cases where the injury is

25

to the reputation of the Plaintiff, the Peshawar High

Court held that;

“loss arising out of injury to

reputation of a person could not

be compensated in terms of money

but for said reason alone courts

should not decline to grant

compensation --- Just, fair and

reasonable compensation was to

be assessed in such cases and

same was to be granted to the

victim(s). No yardstick or definite

principle for assessing damages

existed in such cases and

assessment of fair compensation

was difficult --- Court had

discretion in such cases which

would depend on facts of each

case and how far society would

deem a fair sum determining the

amount to be awarded to a person

who had suffered such damages”.

24. Reverting to the facts of this case while

visualizing the claim of the plaintiff for compensation

for malicious prosecution, I note that as per

prosecution case, in FIR No.07 dated 02.01.2002 the

complainant was inflected injuries by the accused, he

was examined by the medical officer and the medical

officer appeared before the Court in support of his

statement, therefore, initiation of the criminal

proceedings against the plaintiff was neither without

any reason and probable cause nor to be based on any

malice. Therefore, the acquittal of the accused on the

basis of some earlier compromise and extending him

26

benefit of doubt will not clothe him with a cause to

bring a suit for damages.

25. Resultantly, both the Courts have failed to

appreciate the law and facts of the case, therefore, while

accepting revision petition in hand, the impugned

judgment and decree is set aside.

Announced.

11.12.2017

JUDGE

Tufail./* Hon’ble Justice Syed Arshad Ali.