2024 M L D 1237

[Sindh]
Before Salahuddin Panhwar, J
ZULFIQAR AHMED---Appellant
Versus
MUHAMMAD NADEEM and 2 others---Respondents
IInd Appeal No. S-193 of 2022, decided on 12th July 2023.
(a) Civil Procedure Code ( V of 1908 )---
----S.100---Second appeal---Scope---Scope of second appeal is narrow and it can be
exercised only if the decision is contrary to law; there is failure to determine some
material issue of law; and there is substantial error or defect in the procedure
provided by the Civil Procedure Code, 1908, or law for the time being in force which
may possibly have emanated an error or slip-up in the determination or decisiveness
of the case on merits---To succeed in second appeal, the appellant must establish that
the finding of facts arrived at by the first Appellate Court is not found to be
substantiated by evidence on the record and is result of its failure in determining the
material issue or that the conclusions, so drawn, are contrary to settled principles of
law.
Gulzar Ahmad and others v. Ammad Aslam and others 2022 SCMR 1433 ref.
(b) Malicious prosecution---
----Suit for malicious prosecution---Acquittal of the plaintiff in FIR---Reasonable or
probable cause in lodging FIR by the defendant---Every case, which ends in
acquittal, would entitle the guiltless accused to sue for damages, as in that case, the
damage caused would be beyond repair and the criminal justice system would come
to a halt---As by doing so, the aggrieved person would suffer at the hands of the
incompetent investigation and the people would lose the courage to register their
claims and the same would in turn lead to a chaos---Burden is and would be on the
person claiming damages that whether such prosecution was based on malice or not-
--Malicious prosecution means to obtain a collateral advantage---It is to be seen
whether due to ill will or any indirect or improper motive, without any reasonable or
probable cause, prosecution has instituted or FIR has been lodged---The test would
not be whether the criminal proceedings instituted on false and frivolous allegations
had reached the court rather would be that such proceedings had reached a stage at
which damage to the plaintiff resulted, providing a tort for redressal for having been
prosecuted without reasonable cause and with malice.
Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Niaz and others
v. Abdul Sattar and others PLD 2006 SC 432 and Muhammad Yousaf v. Abdul
Qayyum PLD 2016 SC 478. ref.
(c) Malicious prosecution---
----Action for malicious prosecution---Ingredients---Proceedings initiated by the
claimant require that the original proceedings (prosecution) must have been
malicious and without any reasonable and probable cause---Every person in the
society has a right to seek protection of his rights, but while doing so, such person
should not infringe the corresponding rights of others by instituting improper legal
proceedings in order to harass them by unjustifiable litigations---To succeed in an
action for malicious prosecution, a claimant must plead and prove the following
ingredients: (i) that plaintiff was prosecuted by 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.
(d) Malicious prosecution---
----Suit for damages for malicious prosecution---Acquittal under the provisions of
the Criminal Procedure Code, 1898---"Honourable acquittal"---Scope---Appellate
Court , dismissing claim of the plaintiff, observed that as the appellant was not
acquitted honourably by the Trial Court, therefore, the case of the appellant did not
fall within the ambit of malicious prosecution---Held, that the said observation of
the Appellate Court was not tenable for the reason that the word "honourable
acquittal" was alien to the Criminal Procedure Code, 1898---Acquittal is an
acquittal simpliciter and must entail all consequences of pure acquittal---Clean
acquittal and acquittal through benefit of doubt amount to honourable acquittal.
Mumtaz Ali Shah v. Chairman PTCL, H.Q Islamabad and 6 others PLD 2002 SC
1060; Abdul Majeed Khan v. Tawsen Abdul Haleem and others 2012 CLD 06; Dr.
Muhammad Islam v. Government of N.W.F.P. through Secretary, Food, Agriculture,
Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993
ref.
(e) Malicious prosecution---
----Purpose---At times, while lodging of criminal cases, wider net is cast to
implicate an accused including other family members to ensure that none of them is
left free to pursue their case in Court---After trial in many cases the accused who
are nominated are acquitted---However, in number of cases the complainant of the
case walks away freely without facing the consequences of a false accusation---
Societal propensity towards false accusations in FIRs can potentially be curbed
through civil suits for malicious prosecution.
Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 ref.
(f) Civil Procedure Code (V of 1908)---
----O. VII , R. 11 & O. VI , R. 2---Suit for malicious prosecution---Rejection of
plaint---Scope---Pleadings---Claim in the plaint---Defence, considering of---
Claim of the plaintiff was that due to criminal case lodged by the defendant , he
lost his reputation in the eyes of general public as well as friends and he was also
detained in jail for a sufficient period till he was bailed out by the Court and that
after full-dressed trial, he was acquitted---Civil Court rejected the plaint , which
order was maintained by the Appellate Court---Validity---From the record (
averment of plaint, the impugned orders, the judgment of acquittal ) it would not
be possible to say that the plaint did not have any proof of the four elements
required in a suit for malicious prosecution---Basic contentions of the
appellant/plaintiff were clearly contained in the plaint---The question of proof
would arise only after issues are framed and the opportunity to lead evidence is
given to the parties---The plaint is to contain the facts, which it clearly contained
and the manner in which the same would be proved was up to the
appellant/plaintiff---This was not a case where on a plain reading of the plaints no
cause of action existed for malicious prosecution, especially owing to the FIR
which was lodged, the appellant/plaintiff faced full-dressed trial, the subsequent
acquittal and the nature of allegations in the plaints---In view of the provisions of
the O. VI, R.2, C.P.C., 1908 , the pleading is not a substitute of the evidence---In
such circumstances, without providing opportunity to the appellant / plaintiff to
prove his pleadings through evidence , it would not be just and proper to reject the
plaint---Even , in such like cases, the Courts may not consider the defence brought by
the opponent---Thus, the plaint , in the present case, was not liable to be rejected in a
summary manner under O. VII, R. 11, C.P.C---High Court set aside impugned
judgment passed by the Appellate Court as well as order passed by the Trial Court
and remanded the back to the Trial Court with direction to decide the suit afresh after
recording evidence of the parties---Appeal filed by the plaintiff was allowed
accordingly.
Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others PLD 2008 SC 650
and Jewan and 7 others v. Federation Of Pakistan through Secretary, Revenue,
Islamabad and 2 others 1994 SCMR 826 ref.
Farjad Ali Khan for Appellant.
Nemo for Respondent No. 1.
Ali Zardari, AAG for Respondents Nos. 2 and 3.
Date of hearing: 17th May, 2023.
JUDGMENT
SALAHUDDIN PANHWAR, J.---Through captioned IInd-Appeal, the
appellant has challenged judgment dated 08.09.2022, passed in Civil Appeal
No.60/2022, whereby the first appeal was dismissed and order dated 18.02.2022
passed by trial Court in Suit No. 453/2021, whereby the plaint was rejected under
Order VII Rule 11 C.P.C was upheld.
2. Briefly facts relevant for disposal of the instant appeal are that the respondent
No.1 lodged FIR bearing Crime No. 143/2016 at PS FIA, AHT Circle, Karachi for
offences under section 17(2), 22(6) of Immigration Ordinance, 1979 against the
appellant and others. After full-dressed trial, the appellant was acquitted of the
charges vide judgment dated 29.02.2020. After earning acquittal, the appellant filed
a suit for "Defamation, Damages, Compensation for malicious prosecution for
amount of Rs.140,00,000/-" against the respondent No.1. In the first round, the trial
Court rejected the plaint of the Suit vide order dated 02.03.2021, on appeal, vide
judgment dated 28.10.2021, the matter was remanded back to the trial Court with
direction to decide the queries with regard to jurisdiction and maintainability of suit
as afresh in accordance with law after providing opportunity of hearing to the
counsel for both the parties. On remand, the plaint was again rejected under Order
VII Rule 11 C.P.C and on appeal the said order was upheld, hence this second
appeal.
3. Notices were issued to the respondent No.1, but he chose to remain absent,
therefore after completing all the modes of the service including publication,
against the respondent No.1, he was proceeded in Ex-parte.
4. Learned counsel for the appellant argued that the impugned judgment/order
are passed without taking into consideration the material; that no opportunity was
provided to the appellant to adduce the evidence in support of his claim; that no
application under Order VII Rule 11 C.P.C. was moved. However, the trial Court by
exercising suo motu powers rejected the plaint under Order VII Rule 11 C.P.C,
without any cogent reasons; that false implication of the appellant is apparent from
the judgment passed by the learned Special Judge (Central-I), Karachi in Case No.
26/2017; that even in evidence the respondent No.1 has taken contradictory
version, hence the benefit of doubt was extended in favour of the appellant, who
was acquitted by the trial Court; that due to false implication of the appellant, he
suffered immense damages mentally as well as he had to face rigors of trial; that
the learned appellate Court has also misconstrued that the appellant was not
acquitted honourably which finding is alien to the Criminal Procedure Code, 1898
as honourable acquittal is not provided in Code; He maintained that it is held by the
apex Court that an acquittal through benefit of doubt amounting to honourable
acquittal. In support of his submissions, reliance is placed upon the cases reported
as Mumtaz Ali Shah v. Chairman PTCL, H.Q Islamabad and 6 others (PLD 2002
SC 1060), Tariq Pervez v. The State (1995 SCMR 1345), Muhammad Nawaz and
others v. The State (1994 SCMR 1614), Muhammad Yousaf v. Abdul Qayyum (PLD
2016 SC 478) and 11 (2012 CLD 6 [SC]).
5. Heard and perused the record.
6. Before going into the merit of the case in hand, I would like to examine the
scope of the 2nd Appeal in the matter of conflicting findings of the courts below.
7. The scope of the 2nd appeal is narrow and it could be exercised only if the
decision is being contrary to law; failure to determine some material issue of law,
and substantial error or defect in the procedure provided by the Code or law for
the time being in force which may possibly have emanated an error or slip-up in
the determination or decisiveness of the case on merits, in Gulzar Ahmad the apex
Court has held that:
"7. Compliant with section 100, C.P.C., the second appeal only lies in the High
Court on the grounds that the decision is being contrary to law; failure to
determine some material issue of law, and substantial error or defect in the
procedure provided by the Code or law for the time being in force which
may possibly have emanated an error or slip-up in the determination or
decisiveness of the case on merits. Meaning thereby, it does not lie to
question the findings on facts. In the case of Madan Gopal v. Maran Bepari
(PLD 1969 SC 617), this court held that if the finding of fact reached by
the first appellate court is at variance with that of trial court, such a finding
 by the lower appellate court will be immune from interference in second
appeal only if it is found to be substantiated by evidence on the record and
is supported by logical reasoning, duly taking note of the reasons adduced
by the first court which have been disfavored in the contrary finding. It
was further held that interference would be justified if the decision of the
lower courts is found to be contrary to law or some usage having the force
of law has failed to determine some material issue of law. Whereas in
another case reported as Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR
1), the court held that in case of inconsistency between the trial court and
the appellate court, the findings of the latter must be given preference in
the absence of any cogent reason to the contrary as has been held by this
court in the judgments reported, as Madan Gopal and 4 others v. Maran
Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through
LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013
SCMR 1300)."
[Emphasis supplied]
8. The above legal position, prima facie, makes it clear and obvious that to
succeed in second appeal, the appellant must establish that the finding of fact
arrived at by the first appellate court is not found to be substantiated by evidence
on the record and is result of its failure in determining the material issue or that
conclusions, so drawn, are contrary to settled principles of law.
9. It is pertinent to mention here, that every case, which ends in acquittal,
would entitle the guiltless accused to sue for damages, as in that case, the damage
caused would be beyond repair and the criminal justice system would come to a
halt. As by doing so, the aggrieved person would suffer at the hands of the
incompetent investigation and the people would lose the courage to register their
claims and the same would in turn lead to a chaos. The burden is and would be on
the person, claiming damages that whether such prosecution was based on malice
or not. Malicious prosecution means to obtain a collateral advantage. The act of a
defendant is to be seen, whether it was due to ill will or any indirect or improper
motive, see Subedar (Retd.) Fazale Rahim case wherein held that:
"Mere fact that prosecution instituted by the defendant against the plaintiff
ultimately failed, cannot expose the former to the charge of malicious
prosecution unless it is proved by the plaintiff that the prosecution was
instituted without any reasonable or probable cause and it was due to
malicious intention of the defendant and not with a mere intention of
carrying the law into effect."
10. It is pertinent to mention that the proceedings initiated under this law
requires that the original proceedings must have been malicious and without any
reasonable and probable cause. Every person in the society has a right to seek
protection of his rights, but while doing so, such person should not infringe the
corresponding rights of others by instituting improper legal proceedings in order to
harass them by unjustifiable litigations. For a claimant to succeed in an action for
malicious prosecution, must plead and prove the following ingredients:
 i. That plaintiff was prosecuted by 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.
11. In another case Niaz v. Abdul Sattar it has discussed .reasonable and
probable cause. and further in respect of filing and lodging of false FIRs. The
relevant observations are that:
"8. 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.
"10. We have also re-examined the evidence in the interest of justice and fair
play. 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."
12. Reverting back to the case in hand it appears that respondent No.1 lodged FIR
bearing Crime No. 143/2016 at PS FIA, AHT Circle, Karachi for offences under
section 17(2), 22(6) of Immigration Ordinance 1979. According to the appellant due
to such criminal case, he lost his reputation in the eyes of general public as well as
friends and he was detained in jail also for a sufficient period till he was bailed out
by the Court. It is further stated that after full-dressed trial, he was acquitted.
However, the learned Appellate Court observed that as the appellant was not
acquitted honourably by the trial Court, therefore, the case of the appellant did not
fall within the ambit of malicious prosecution, such observation of learned Appellate
Court is not tenable for the reason that the word "Honourable acquittal" is alien to
the Criminal Procedure Code, 1898 and such word is nowhere provided in the Code.
Acquittal is an acquittal simpliciter and must entail upon all consequences of pure
acquittal. Clean acquittal and acquittal through benefit of doubt amounting to
honourable acquittal. Rightly reliance has been placed upon the case of Mumtaz Ali
Shah PLD 2002 SC 1060 (supra). However, the Apex Court has held in the case of
Abdul Majeed Khan that when claimant is subjected to criminal prosecution and 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. Relevant portion of the
judgment of the apex Court passed which reads as:
"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....."
Underlining is provided for emphasis
13. In the Case of Dr. Muhammad Islam it was held by the Apex Court that:
"Even in the cases where benefit of doubt has been given to the accused, it
cannot be said that the charge has been established by the prosecution. The
accused are to be treated as innocent unless it is proved on the basis of best
possible evidence that they are connected with the Commission of the crime
and as such, deserve to be convicted to meet the ends of justice. The doubt
itself shall destroy the very basis of the prosecution case. 1n this view of the
matter, the accused shall be deemed to have honourably been acquitted even
where the benefit of doubt has been extended to them".
14. It is observed that at times, while lodging of the criminal cases, widen net is
cast to implicate an accused including their other family members to ensure that
none of them left free to pursue their case in Court. After trial in many cases the
accused who are nominated are acquitted. However, in number of the cases the
complainant of the case walks away freely without facing the consequences of a
false accusation. The societal propensity towards false accusations in FIRs can
potentially be curbed through civil suits for malicious prosecution. In the case
reported as Muhammad Yousaf it has been observed by Supreme Court as under:-
"11. We cannot help taking notice of the fact that in numerous criminal cases
which are initiated through filing of FIRs a wide net is cast to implicate
accused persons and their family members particularly able-bodied males.
This ordinarily is done to ensure that such able-bodied males are arrested
and there is none left free to pursue their case in Court. After trial in many
cases the accused who are nominated are acquitted. The
accuser/complainant in most cases walks away without facing the
consequences of a false accusation. Section 182, P.P.C. quite often is not
used even if there is reasonable ground for initiating action under the said
provision for prosecuting a person who has filed a false FIR. The societal
propensity towards false accusation in FIRs can potentially be curbed
through civil suits for malicious prosecution."
[Emphasis Supplied]
15. In order to find an action for damages for malicious prosecution based upon
criminal proceedings, the test would not be whether the criminal proceedings
instituted on false and frivolous allegations had reached the court rather would be
that such proceedings had reached a stage at which damage to the plaintiff resulted.
In the case of Muhammad Yousaf id, it has been observed that "a tort which
provides redress to those who have been prosecuted without reasonable cause and
with malice".
16. This Court has perused the averment of plaint, the impugned orders, as also
the judgment of acquittal and is clearly of the opinion that at this stage it would not
be possible to say that the plaint does not have any proof of the four elements
required in a suit for malicious prosecution. The basic contentions of the
Appellant/Plaintiff are clearly contained in the plaint. The question of proof would
arise only after issues are framed and the opportunity to lead evidence is given to
the parties. The plaint is to contain the facts, which it clearly contains. The manner
in which the same would be proved is up to the Appellant/Plaintiff. This is not a
case where on a plain reading of the plaints no cause of action exists for malicious
prosecution, especially owing to the FIR which was lodged, the Appellant/Plaintiff
faced full-dressed trial, the subsequent acquittal and the nature of allegations in the
Plaints. Thus, the plaint is not liable to be rejected in a summary manner under
Order VII Rule 11 C.P.C. As per provisions of Order VI Rule 2, C.P.C., every
pleading shall contain, and contain only, a statement in a concise form of the
material facts on which the party pleading relies for his claim or defence, as the
case may be, but not the evidence by which they are to be proved..." In view of the
provisions of Order VI Rule 2, C.P.C., the pleading is not a substitute of the
evidence. In such circumstances, without providing opportunity to the Plaintiff to
prove his pleadings through evidence, it will not be just and proper to reject the
plaint. In the case of Saleem Malik, it has been held by the Supreme Court of
Pakistan that:
"Subject to the certain exception to the general principle, the plaint in the suit
cannot be rejected on the basis of defence plea or material supplied by the
opposite party with the written statement. This is settled law that in case of
controversial questions of fact or law, the provision of Order VII, Rule 11,
C.P.C. cannot be invoked rather the proper course for the Court in such
cases is to frame issue on such question and decide the same on merits in the
light of evidence in accordance with law. The rejection of plaint on technical
grounds would amount to deprive a person from his legitimate right of
availing the legal remedy for undoing the wrong done in respect of his
legitimate right, therefore, the Court may in exceptional cases, consider the
legal objection in the light of averment of the written statement but the
pleading as a whole cannot be taken into consideration for rejection of plaint
under Order VII, Rule 11, C.P.C."
[Emphasis supplied]
17. In the Case of Jewan it has been observed by the apex Court that courts may
not consider the defence brought by the opponent in the following words:
"We are, therefore, of the view that in the above referred cases though the
observation was made by the Court that Order VII, Rule 11, C.P.C. is not
exhaustive of all situations, but it did not lay down the law that the Court
 while rejecting the plaint under Order VII, Rule 11, C.P.C. could take into
consideration the plea of Defendant though disputed and denied by the
Plaintiff."
18. Under these circumstances, the instant appeal is allowed, impugned
judgment passed by the Appellate Court as well as order passed by the trial Court
are set-aside and the case is remanded back to the trial Court with direction to
decide the suit afresh after recording evidence of the parties in accordance with
law.
MQ/Z-7/Sindh Appeal allowed.
;