High court dismissed the appeal, upholding the trial court's judgment that there was reasonable and probable cause for the prosecution, and the appellant failed to prove malicious intent on the part of the respondent.
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One unique point decided in the judgment is the court's interpretation of the concept of "benefit of the doubt" in the context of malicious prosecution. The court emphasized that acquittal based on the benefit of the doubt does not automatically imply that the accused was falsely implicated. It acknowledged the possibility that the accused might have been involved in the matter but that the evidence presented by the prosecution was not sufficient for a conviction beyond a reasonable doubt. This nuanced understanding underscores the importance of evidence and the presumption of innocence, even in cases where acquittal is based on the benefit of the doubt.
The main story in the provided judgment revolves around a case of malicious prosecution. The appellant, Tariq Mehmood, filed a suit against the respondent, Tahir Farooq, seeking damages for malicious prosecution. The appellant alleged that the respondent, along with others, falsely implicated him in a criminal case, resulting in his arrest and subsequent acquittal after a prolonged legal battle. The appellant claimed damages for mental torture, financial loss, and reputational damage.
The judgment discusses the legal aspects of malicious prosecution, including the need to establish elements such as lack of reasonable and probable cause, malice on the part of the defendant, and the prosecution's termination in favor of the accused. The court analyzed the evidence and concluded that while the appellant was acquitted, there was reasonable and probable cause for the prosecution, and thus, the suit for damages was dismissed.
Overall, the case highlights the complexities involved in proving malicious prosecution and the importance of evidence and legal principles in such matters.
. H C J D A 38.
Judgment Sheet
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
R.F.A No.80927/2022
Tariq Mehmood Versus
Tahir Farooq
J U D G M E N T
Date of Hearing
16.05.2024
Appellant by:
In person
Respondent by:
Mr. Irfan Javed, Advocate along with the
respondent
Anwaar Hussain J: This appeal is directed against judgment
dated 29.10.2022, passed by the learned Civil Judge 1st Class, Lahore,
by virtue of which suit of the petitioner for recovery of damages, on
account of malicious prosecution to the tune of Rs.58,250,000/-, was
dismissed.
2.
By way of factual background, it has been noted that the
appellant instituted a suit against the respondent with the averments
that as general attorney of his sister, namely, Mst. Rukhsana Mumtaz,
the appellant filed a suit for recovery of dowry articles and
maintenance against the brother and father of the respondent in which
the Judge Family Court, Lahore appointed Mr. Majid Ali Rana,
Advocate as Local Commission for submission of his report about the
condition of the dowry articles lying in the house of the defendants
but on 21.06.2003 at about 04:00 PM, the respondent alongwith others
instead of allowing the Local Commission to discharge his duties, as
directed by the learned Judge Family Court, Lahore attacked the
appellant and with the collusion of SHO, Police Station, Samanabad,
Lahore got registered a false and frivolous FIR bearing No.148/2003
dated 21.06.2003 for offences under Section 452/148/149, 337A1,
337F3 of the Pakistan Penal Code, 1860, (“the PPC”) against the
appellant in which arrest was affected and the appellant was finally
acquitted on 02.03.2013 and on account of such protracted criminal
litigation, the respondent is liable to pay damages, as claimed for,
inter alia, on account of mental torture, financial and reputational
loss to the appellant. The suit was contested and after framing the
R.F.A No.80927/2022
issues and recording of evidence, the Trial Court dismissed the suit,
vide impugned judgment dated 29.10.2022.
3.
Appellant in person submits that the respondent was aggressor
and the Trial Court erred in dismissing the suit merely on the ground
that acquittal of the appellant was on the basis of benefit of doubt.
Places reliance on the case reported as “Muhammad Yousaf v. Abdul
Qayyum”1
in support of his contention. He further avers that he was at
the premises of the respondent pursuant to order of the Family Court
and, therefore, the attack in itself was malicious and the appellant’s
act to defend himself, which resulted into any injury to the respondent
was protected under Section 78 of the PPC.
4.
Conversely, learned counsel for the respondent has supported
the impugned judgment and states that unless the acquittal is
honourable and not on the basis of benefit of doubt, a plaintiff of suit
for recovery of damages on account of malicious prosecution cannot
succeed if existence of malice in such cases is missing and not proved.
5.
Arguments heard. Record perused.
6.
Following issues were framed by the Trial Court:
“ISSUES
1. Whether the plaintiff is entitled to recovery of damages
for malicious prosecution to the tune of
Rs.5,82,50,000/- on the grounds mentioned in the
paint?OPP
2. Whether the suit is not maintainable in its present
form?OPD
3. Whether the plaintiff has concealed the true facts of the
case hence, the same is liable to be dismissed?OPD
4. Whether the plaintiff has filed this suit just to harass
and blackmail the defendant?OPD
5. Whether the plaintiff has no cause of action or locus
standi to file the present suit?OPD
6. Relief.”
Evidence was led and recorded. Issue No.1 was core issue and the
Trial Court found that since the appellant was extended benefit of the
doubt and was acquitted whereafter the suit was filed, therefore, the
1 (PLD 2016 SC 478)
R.F.A No.80927/2022
appellant failed to prove that registration of criminal cases is without
reasonable and probable cause. Operative part of the impugned
judgment on issue No.1 reads as under:
“10. The plaintiff could not prove by cogent and
confidence inspiring evidence that the defendant got
registered the case against him with malicious
intention and that there was absence of reasonable
and probable cause for prosecution launched by the
defendant against him. Even the plaintiff of this case
was acquitted by the trial court by extending him
benefit of doubt and the court did not declare that
case was baseless. The plaintiff miserably failed to
discharge the onus of this issue in his favour, so this
issue is decided against the plaintiff.”
7.
In a suit for recovery of damages on account of malicious
prosecution, a plaintiff is obligated to establish following five
elements as held in case reported as “Niaz and others v. Abdul Sattar
and others”2:
(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 an 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.
In so far as the present case is concerned, admittedly, the appellant
was prosecuted by the respondent and the same ended up in favour of
the former. Hence, the two of the essential ingredients for establishing
malicious prosecution, referred at Serial No.(a) and (d) are not
disputed. We are of the opinion that all prosecutions ending up in an
acquittal cannot be stated to be malicious as there is no presumption in
law of a prosecution ending in an acquittal being malicious3
. Mere
averment in a plaint of a suit for damages on account of malicious
2
PLD 2006 Supreme Court 432
3 “Sannam Bharti v. D.T.C & ORs” (2013 SCC Del 3104); “Akbar Ali v. State”
(2014 SCC Del 1547
R.F.A No.80927/2022
prosecution that the plaintiff was prosecuted by or at the instance of
the defendant in the suit and was acquitted would not formulate
malicious prosecution. Hence, the nub of the matter is to determine
whether, in the facts and circumstances of the case, it can be accepted
that there was reasonable and probable cause with the respondent for
the registration of criminal case against the appellant in which the
latter has been acquitted, on account of benefit of doubt.
8.
The term “malice” means the presence of some improper and
wrongful motive - that is to say, an intent to use the legal process in
question for some objective other than its legally appointed and
appropriate purposes.4 Malicious prosecution means to obtain a
collateral advantage. It is rather, always dependent on the facts that
whether such prosecution was based on malice or not. The act of a
defendant is to be seen, that is to say, was it by spite or ill will or any
indirect or improper motive. Malice can be presumed from the facts as
they emerge from the evidence recorded during the trial. Mere
absence of reasonable and probable cause does not justify, as a matter
of law, the conclusion that the prosecution was malicious, though it is
quite conceivable that the evidence which is sufficient to prove
absence of reasonable and probable cause may also establish malice.5
Moreover, malice alone would not be enough. The plaintiff in a suit
for malicious prosecution must also establish absence of “reasonable
and probable cause” and the onus to prove thereof is always on the
person who asserts in affirmative -the appellant in the present case.
The term “reasonable and probable cause” means that the prosecutor
in a criminal case had an honest belief in the guilt of the accused,
based on reasonable grounds6
. If “the reasonable and probable cause”
is established, question of malice becomes irrelevant7
. The conditions
precedent for filing the suit for malicious prosecutions are the
aforesaid conditions, which should coexist before the defendant in
such suit for malicious prosecution can be burdened with liability.
4
See Salmond on Torts, 12th Edition (595)
5 “Nityananda Mandhata v. Binayak Sahu and another” (AIR 1955 Orissa 129)
6
“Hicks v. Faulkner” [(1878) 8 QBD 167]
7
“Tempest v. Snowden” [(1952) 1 K.B. 130]
R.F.A No.80927/2022
9.
No doubt it is true that the acquittal of a person in a criminal
case sometimes gives presumption that there was no reasonable cause
for his prosecution, but this presumption is rebuttable and there cannot
be any universally accepted phenomenon that in case the criminal
prosecution fails, then the accused would be automatically entitled for
recovery of damages as otherwise in all those cases where the
prosecution fails, it would give rise to damages in favour of an
accused. Therefore, the nature of acquittal has to be kept in view as
well. Meaning thereby that whether the acquittal was by way of giving
a benefit of doubt or it was based on weakness of evidence or whether
it was an acquittal on merits. As to what precisely is meant by
“acquittal on merits” in strict sense, is not quite clear. An acquittal on
the ground of extreme weakness of the prosecution evidence can also
be treated as an acquittal on merits. But it is indeed true that an
acquittal by way of giving benefit of doubt is an acquittal which is not
on merits. The present is a case where benefit of doubt was given to
the appellant, in the criminal case registered against him by the
respondent while making a clear observation that both sides appeared
to be at fault. Operative part of the judgment in criminal case, dated
02.03.2013 passed by Judicial Magistrate Section-30, Model Town,
Lahore reads as under:
“15. Therefore, there is doubt about the role of each
accused. Hence, by giving benefit of doubt, accused
Sh. Tariq Mehmood is hereby acquitted from the
charge. He is on bail. His sureties are re-called.
Accused Sohail Ahmad is court absconder. Evidence
U/S 512 Cr.P.C has already been recorded against
accused Sohail Ahmad. Till his arrest, case file be
consigned to record room.”
10. Keeping in view the above exposition qua essential ingredients
for obtaining decree in case of suit for malicious prosecution, we are
of the opinion that reliance placed by the appellant on case of
Muhammad Yousaf supra is misplaced. In fact, the respondent side
has also relied on the said judgment. In the said case, the Hon’ble
Supreme Court while examining the concept of malicious prosecution
and registration of a false FIR observed as under:
6
R.F.A No.80927/2022
“9. This has meant that the plaintiff has had to
establish, inter alia, malice as well as absence of
reasonable and probable cause to succeed in a
claim for malicious prosecution. Mere absence
of reasonable and probable cause' has not been
held to be sufficient to establish malice, although
it can be used as evidence for establishing malice.
Malice is a state of mind and can be inferred
from the circumstantial evidence. We can take
judicial notice of our societal norms which
appears to be at variance on norms of English
society. The mere lodging of an FIR creates a
public perception adverse to the reputation of the
accused. Where the FIR is proved either to be
false or to have been lodged without reasonable
and probable cause, the circumstances of any
given case may be sufficient to show that the
lodging of the criminal case was malicious. For
instance, in certain cases a prior enmity or a
family dispute or differences between the families
of two spouses can lead to the lodging of a
criminal case and initiation of a prosecution based
on allegations of a factual nature which are
motivated by the aforesaid circumstances rather
than a truthful assertion of fact to bring an
accused to book through the criminal legal
process. In the present case, the falsity of the
allegation made against the respondent/plaintiff
is established from the fact that the only basis
stated by him for lodging the FIR was some
information received by him from a person
named Sadiq, after the FIR had been registered.
Since the said Sadiq was not summoned and
produced as a witness by the
petitioner/defendant the element of malice on
the part of the petitioner can be inferred.
(Emphasis supplied)
Unlike the case of Muhammad Yousaf supra, in the instant case the
FIR was registered by the respondent in respect of an actual
occurrence which the appellant admits albeit that the respondent was
the attacker/aggressor and the injuries caused to the respondent was
result of the self defence and for this reasons reliance is placed by the
appellant on Sections 78 and 79 of the PPC. The appellant averred
that the presence of the appellant at the residence of the respondent
was in furtherance of an order of the Family Court for inspection of
dowry articles belonging to the sister of the appellant, at the house of
R.F.A No.80927/2022
the respondent, who was real brother of ex-brother in law of the
appellant and the Family Court concerned, where the suit of the sister
of the appellant was pending, appointed a Local Commission namely,
Mr. Majid Ali Rana, Advocate to examine the said dowry articles and
when the appellant reached the house of the respondent, the latter
attacked that resulted into injuries. Even if the said averments are
accepted, it depicts that the occurrence was not fabricated, illusionary,
fictitious on account of any hearsay and, certainly, constitutes
reasonable and probable cause for the prosecution and it is only on
account of weak evidence, the benefit of doubt was given to the
appellant. Moreover, only affidavit of said Local Commission was
brought on record and he was not produced as witness and appellant’s
application was dismissed in this regard, vide order dated 10.01.2007.
Said order was not challenged. Even otherwise, in his statement
brought on record, it has been acknowledged by Local Commission
that occurrence did take place. Meaning thereby that the FIR was
registered for a reasonable and probable cause and not on mere
assumptions. Moreover, Local Commission acted in furtherance of
order of the Family Court, Lahore and nothing has been brought on
record to establish that said Family Court took any action against the
delinquents.
11. At this juncture, it would be imperative to examine the concept
of “the benefit of the doubt”. It is a principle that allows for the
possibility that someone or something may not be innocent or truthful,
even if there is not enough evidence to prove it. It is often used in
situations where there is uncertainty or doubt about someone's actions
or intentions. Acquittal on extension of the benefit of the doubt does
not mean that the accused were falsely implicated and possibility
would not be excluded that the accused might also have been involved
in the matter but for want of evidence beyond doubt was not led by
the prosecution so as to effect conviction.8
8
Sadaruz Zaman v. The State (1990 SCMR 1277); “Feroze Khan v. Fateh Khan
and 2 others (1991 SCMR 2220).
R.F.A No.80927/2022
12. In view of the preceding discussion, we are of the view that the
Trial Court has correctly appreciated the evidence on record as also
the applicable law. The present appeal has no merits and hence, the
same is dismissed. No order as to costs.
(ABID AZIZ SHEIKH)
JUDGE
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