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‑‑ Proof‑Damages‑Mere fact of presentation of challan before Magistrate and discharge of plaintiff under S. 253, Criminal Procedure Code, 1898 for want of prosecution, held, would not be fatal to case for damages for malicious prosecution‑Trial Court is required to consider pleadings as well as documentary evidence brought on record and then come to conclusion whether tests required to be fulfilled for making out case for grant of damages for malicious prosecution had in fact been satisfied or not‑Evidence on record satisfying four tests laid down in P L D 1970 Kar. 344 would be deemed to have made out case for malicious prosecution and would be entitled to award of damages.‑[Damages].

Abdul Rashid v. Stare Bank of Pakistan P L D 1970 Kar. 344 ; Abdul Wahab Khan v. Pakistan Aviation Limited P L D 1970 Kar. 757 ; Ghulam Nabi Khan v Azad Government of the State of Jammu and Kashmir 1984 C L C 325 and Abrat v. North Eastern Railwey Co. (1883) 11 Q B D 440 ref.

---Damages‑‑Compensation‑Quantum‑Removal from service Claim of plaintiff to be from a respectable family and fact that reasons for termination of his service were his involvement in criminal offences remained uncontroverted due to ex parte proceed ings‑No amount of money, held, could fully compensate a citizen for deprivation of his liberty without any plausible reason or cause Damages claimed by plaintiff, being hardly enough as fair com pensation for his arrest and detention and for facing trial over 2 years, were granted as damages ‑for malicious prosecution as per claim of plaintiff.‑[Damages].

‑‑ S. 100‑Malicious prosecution‑Damages‑Where Trial Court as well as First Appellate Court's finding was based on misreading/non reading of evidence, High Court in second appeal set aside such order of both Courts and awarded damages to plaintiff as per claim for malicious prosecution.

Appellant in person.

A. Sattar Pinger for Respondent No. 1.

Makhdoom Abdul Wall for Respondent No. 2.

Munawar Abbas : Amicus curiae.

Dates of hearing :15th, 16th, 29th April, 4th and 5th May, 1986.

This is a second appeal filed by the appellant/plaintiff arising out of a suit filed by the appellant against the respondents claiming damages of Rs. 50,000 for malicious prosecution. According to the case of the appellant, be was an employee of Shalimar Silk Mills Limited, Site, Karachi, working as a weaving clerk at a monthly salary of Rs. 175. Respondent No. 1 Abdul Rauf was/is the Director of Shalimar Silk Mills Limited. On 11‑10‑1972, respondent No. I lodged F. 1. R No. 430/72 under section 147/352/427, P. P. C. through a telegram with SITE Police Station, Karachi, against five persons including the appellant, which reads as follows

"S.H.O., SITE Police Station, Karachi. Workers of our Mills continued their go‑slow tactics in all department Stop on October 7th Akram Naseem son of Abdul Sharif Comma Muhammad Aslam Latif Comma Muhammad Rafique son of Majid Comma Razzaque son of Ghaffar Comma Naushad Khan son of Ghous Khan and others Gheraoed the Mills staff, cut of the phone to outside and stopped work of the Mills for off fifty minutes in the second shift Stop Again they did not allow the workers to join their duties in the first plus first shift on October 9th Until twenty‑five minutes after the normal start of the Shift Stop Once again they Gheraoed the Van of the Mills and instigated the workers to stop work for 15 minutes in the first shift today and have not allowed goods to go out of the Mills Stop The van was loaded and the workers unauthorisedly unloaded goods Stop Have informed Site Police Station immediately Stop Re‑request immediately necessary action be taken to stop their illegal acts. Director Shalimar Silk Mills Ltd."

The telegram was sent by respondent No.l on 10‑10‑1972 and it reached the Police Station on 11‑10‑1972 but in his statement recorded before the Magistrate, the complainant stated that on 7‑10‑1972 at about 8‑00 a.m. while he was in his city office, he had received an information on phone from his factory that the workers had stopped work in the Mill and they were led by accused Akram Nasim and the appellant, and this information was conveyed to the complainant on telephone by Abdul Aziz, Manager of the Mill. He also produced the telegram that he sent to the S.H.O., SITE, Karachi, as Exh. 1‑A. In his cross‑examination, he stated that the police had recorded his statement in this case on she same day. He categorically stated in his cross‑examination that he did send the telegram to the police station on the day of the incident i.e on 7‑10‑1972. He denied the suggestion that on 7‑10‑1972 the police had not recorded his statement. He then stated that his statement was re‑recorded on 11‑10‑1972. He denied the suggestion that no incident had taken place on 7‑10‑1972 and that he had lodged false report on 11‑10‑1972.

Pursuant to the F.I.R. lodged by respondent No. 1, investigation was carried out by the police and then in the night between 11th/12th October, 1972, at about 2‑00 a.m. the appellant was arrested by the police of S.I.T.E. Police Station. According to the appellant, the S H.O., one Inspector and several policemen had come in the van to arrest him late in the night on 11‑10‑1972. The police obtained his remand on 13‑10‑1972. lie remained in custody till be was released on bail on 28‑10‑1972 by the S.D.M. Harbour, Karachi. The appellant and other co‑accused were challaned. In the trial, only the statement of respondent No. 1 was recorded by the Magis trate. No other prosecution witness appeared and by order dated 11‑2‑1975 passed by the learned A.C.M. IV under section 253, Cr. P. C. the accused including the appellant were discharged. The order dated I1‑2‑1975 discharging the appellant and other accused reads as follows :‑

"P.S.I. Present. All the accused present on bail with their D.C. Summons not received back either served or unserved. Before this, many times, summons have repeatedly been issued but witnesses have not turned up and they are reported to have left these services and have gone to somewhere else. This an old case of about more than two years and prosecution has failed to produce the witnesses in spite of repasted process issued. Hence all the accused are discharged under section 253, Cr. P.C."

In the suit, the appellant alleged that the criminal case foisted upon him was false and that he suffered damages to the tune of Rs. 50,000. The two respondents were served but they did not file any written statement, although time was given to them by the learned Civil Judge, before whom the said suit was pending. Accordingly both respon dents were declared ex pane. The appellant filed affidavit in ex pate proof reiterating the facts given in the plaint. He also attached copies of the F. 1. R. order, dated I 1‑2‑1975 of the Magistrate, deposition of respondent No. 1 before the Magistrate and correspondence between the Advocates of the parties. The suit of the appellant/plaintiff was, however, dismissed by judgment, dated 8‑8‑1981 on the ground that the plaintiff had failed to make out any case for malicious prosecution. The entire reasoning of the learned Senior Civil Judge dismissing the suit of the appellant is reproduced as follows :‑

"The plaintiff filed ex parse proof briefly stating same facts as stated in his plaint. He attached copy of F.I.R., copy of order of Magistrate, deposition of defendant No. l before Magistrate and exchange of notices between Advocates of the parties.

Though there is nothing in rebuttal, yet the order of discharge pro duced by plaintiff as Annexure "C" shows that the plaintiff was discharged under section 253, Cr. P.C. for want of prosecution.

Insufficiency of evidence is not the conclusive proof that case registered was altogether false. The production of challan by police before Magistrate itself shows that a prima facie case was made out by the police for cognizance of the Court for which defendant No. 1 should not be blamed about the consequences.

The plaintiff has failed to make out the case for malicious prosecution, therefore, this suit is dismissed with no order as to the costs."

The appellant filed Appeal No. 303 of 1981 but the same was also dismissed by judgment dated 14‑4‑1984 of the learned 11 Additional District Judge, Karachi. The reasoning of the learned 11 Additional District Jud a dismissing the appeal is contained in para. 3 of his judgment dated 14‑‑4‑1984 and the same is reproduced hereinbelow :‑

"I have heard the appellant in person and have gone through the arguments submitted by him and R & P of the lower Court. Respondent No. 1 bad lodged F.I.R, on 11‑10‑1972, against the appellant and other accused persons under sections 147, 427, 352, P.P.C. The case was duly investigated by S.I.T.E. Police and the accused persons were challaned in the Court of learned S.D.M. Before learned S.D.M. only complainant. i.e. respondent No. 1 was examined on 20‑8‑1973. I have gone through his statement, in which, he has supported the contents of F.I.R. I have gone through the order dated 11‑2‑1975, passed by‑A.C.M. No. 4, Karachi under section 253, Cr. P. C. by which he discharged the accused persons including the appellant from the case. They were discharged only because the witnesses could not be examined as they were reported to have left the services and have gone to some where else and the case was old one, therefore, it cannot be said that the appellant was falsely prosecuted. I agree with the learned 11 Senior Civil Judge, Karachi, that insufficiency of evidence is not conclusive proof that the case registered was altogether false. The accused persons were challaned in the Court after proper investigation, therefore, it shows that prima facie case was trade out by the police for cognizance of the Court, for which respondent No. 1 could not be blamed about the consequences. The appellant had failed to make out the case for malicious prosecution, therefore, suit was rightly dismissed."

2. Being aggrieved, the appellant has filed the present second appeal. I have heard the appellant, who has appeared in person and also Mr. A. Sattar Pinger, Advocate, who has appeared for respondent No. 1. Mr. Makhdoom Abdul Wah, Advocate appeared for respondent ho. 2, Government of Sind Mr. Munawwar Abbas addressed the Court as amicus curiae. With the assistance of the appellant and Mr. A. Sattar Pinger have gone through the entire record including the file of the criminal case arising out of F. I. R. No. 430/72 of S.I.T.E. Police Station State, v. Abdul Razzak under sections 147, 427 and 342, P.P.C.

3. Mr. Munawwar Abbas, as amicus curiae and Mr. A. Sattar Pinger, learned counsel for respondent No. 1, cited case‑law in regard to the tests, which are applied in cases relating to damages for malicious prosecution. Following judgments were cited :‑‑

(i) Abdul Rashid v. State Bank of Pakistan P L D 1970 Kar. 344.

(ii) Abdul Wahab Khan v. Pakistan Aviation Limited P L D 1970 Kar. 757.

(iii) Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 C L C 325.

(iv) Abrat v. North Eastern Railway Co. (1883) 11 Q B D 440.

In 11 Q B D 440, it was laid down that, in an action for malicious prosecution, the burden of proof as to all the issues arising therein lies upon the plaintiff and that the onus of proving the existence of such facts as tend to establish the want of reasonable and probable cause on the part of the defendant rests upon the plaintiff.

In P L D 1970 Kar. 344, the requirements for establishing case for damages for malicious prosecution were enunciated. It was observed that in an action for malicious prosecution the plaintiff is under the onus to show that :‑

(a) he was prosecuted by the defendant on a criminal charge ;

(b) the prosecution terminated in plaintiff's favour ;

(c) the prosecution was malicious ; and

(d) the prosecution was without reasonable and probable cause.

In P L D 1970 Kar. 757, it was observed that the burden of proof in a suit for damages for malicious prosecution is heavy on the plaintiff and the plaintiff is not only required to prove that the prosecution ended in his favour but also that it was without reasonable and probable cause.

In 1984 C L C 325, also it was observed that initial onus of proof in such case is on the plaintiff to satisfy the Court that his criminal prosecution was malicious and that the prosecution was without reasonable and probable cause. It was observed that a prosecution rests on the circum stances sufficiently strong and convincing to warrant a man of ordinary prudence to entertain an impression and belief that present accused was guilty of offence with which he was charged.

4. According to the report lodged by respondent No. 1 through the telegram, dated 1 U‑10‑1972, one incident had taken place on 7‑10‑1972, another on 9‑10‑1972 and the third one on the day the telegram was sent i.e. on 10‑10‑1972. However, in his evidence, respondent No. 1 Rauf Tabani Wali Muhammad referred to only the incidents of 7‑10‑1972 and not to any incident on any other day and in respect of the incident on 7‑10‑1972, according to his own deposition, he was not the eye‑witness but he was in his city office and he bad received information on phone that the workers had stopped the work at the Mill and they were led by the accused and the appellant. According to him, this telephonic message was conveyed to him by Abdul Aziz, Manager of his Mill. Later on when he went in the evening to the Mill he was told about the incident of the day by Manager Abdul Aziz and another director. Then he has clearly stated in his evidence that he had given the telegram on 7‑10‑1972. He also stated that his statement has been recorded on 7‑10‑1972 by the police. From the evidence given by respondent No. 1 the complainant, it is apparent that according to his own showing he was not the eye witness and that the eye‑witnesses were his Manager Abdul Aziz and a co‑director. Secondly his deposition shows that according to respondent No. 1, the incidents had taken place on 7‑10‑1972 and that he sent the telegram on 7‑10‑1972 and his statement had also been recorded by the police on the same day i.e. 7‑10‑1972. The record clearly establishes that no telegram was sent on 7‑10‑1972. The telegram was sent on 10‑10‑1972 and it was received in S.I.T.E. Police Station on 11‑10‑1972. If the telegram dated 10‑10‑1972 had not reached the Police Station before 11‑10‑1972 and no other information had been laid before the Police, it is obvious that investigation by the police would not have taken place prior to 11‑10‑1972. No question, therefore, arose of the statement of the respondent No. 1 being recorded by the police on 7‑10‑1972.

In the final challan submitted by the police the names of Manager Abdul Aziz and co‑director are not shown. It leads to the inference that they were not eye‑witnesses or that they could not depose about the incident, subject‑matter of the F.I.R.

5. There are various contradictions in the F. I. R. and the evidence given by the respondent No. 1 (the complainant) before the Magistrate. His statement in the evidence that he had given the telegram on 7‑10‑1972 and that his statement had also been recorded by the police on 7‑10‑1972 have been found to be false. The names of Manager Abdul Aziz and co director do not appear in the final challan as prosecution witnesses where as according to the evidence of the respondent No. 1, these two persons were eye‑witnesses. If the evidence given by the respondent No. 1 was correct, the said two persons would have been' the star‑witnesses of the prosecution. If, according to the Investigating Agency. these two persons, namely, Manager Abdul Aziz as well as the co‑director. were not eye‑witnesses of the incident, the entire version given by the respondent No. 1 becomes false. If, on the other hand, Manager Abdul Aziz and the co‑director were eye‑witnesses but they did not come forward during the investigation to give their statement to the police, then also the intention of filing the F. I. R. appears to be to harass the appellant and other accused i.e. to get them involved in criminal proceedings so that they may suffer for a long period on account of facing criminal charges.

The case remained pending against the appellant before the Magistrate for nearly 2 years and all this was on account of the complaint filed by the respondent No. 1 which, on the basis of the material on record appears to have been filed for ulterior motive to harass the appellant and others.

6. Referring to the judgment, dated 8‑8‑1981 of the trial Court it may be observed that the documents on record were not considered and the trial Court dismissed the suit on being impressed by the fact that the appellant had been discharged under section 253, Cr. P.C. and the fact that according to the trial Court, the production of challan by the police before the Magistrate itself shows that a prima facie case was made out by the police for cognizance of the Court for which respondent No. 1 should not be blamed about the consequences. The mere fact that challan had been presented by the police before the Magistrate and/or that the appellant had been discharged under section 253, Cr. P. C. for want of prosecution are not fatal to the case for damages for malicious prosecution. The trial Court is required to consider the pleadings as well as documentary evidence brought on record and then come to the conclusion whether the tests required to be fulfilled for making out a case for grant of damages for malicious prosecution had in fact been satisfied or not. This exercise has neither been undertaken by the trial Court nor by the learned IInd Additional District Judge Karachi. The learned IInd Additional District Judge Karachi, has also given the same reasons for dismissing the appeal of the appellant. In my view on the evidence on record, which has not been considered by the two Courts below, the four tests mentioned in P L D 1970 Kar. 344 had been satisfied and as such the appellant had made out a case that he had been prosecuted by the respondent No. 1 maliciously, and therefore, he is entitled to the award of damages for malicious prosecution.

7. The next question to determine is about the quantum of damages. In all a sum of Rs. 50,000 has been claimed as damages under the following heads :‑

(i) Due to being jobless. Rs. 5,000

(ii) Due to lowering down prestige, and honour of

the appellant in the eyes of the public. Rs. 20,000

(iii) Due to undergoing mental, physical and moral

torture. Rs. 23,000

(iv) Miscellaneous expenses. Rs. 2,000

Total Rs.50,000

According to the appellant, he comes from a respectable family of Karachi and he was working as weaving clerk in the Mill of respondent ,e No. 1. No written statement was filed by respondent No. 1. The assertion that the appellant comes from a respectable family of Karachi has gone uucontroverted. Appellant's services had also been terminated in November, 1972, after lodging of the F.I.R. by respondent No. 1. On a question from the Court, learned counsel of the respondent No. 1, on instructions, stated that reasons for termination of appellants' service were his involvement in criminal offences for which respondent No. 1 had lodged the F.I.R. It is apparent that, but for the criminal case launched by the respondent No. 1, the appellant would not have been dismissed from service. Then, on account of a criminal complaint lodged with ulterior motive to ha‑MAs the appellant. the appellant was arrested at 2‑00 a.m. in the night and remained in custody for nearly 16 days. No amount of money can fully compensate a citizen for deprivation of his liberty for 16 days without any pluasible reason or cause. In my view, the sum of Rs. 50,000 claimed by the appellant is not even a fair compensation for the arrest and detention of the appellant and facing criminal proceedings for a period of nearly 21 years but this is the amount which he has claimed and I have no hesitation in observing that he is entitled to this amount as damages for malicious prosecution.

8. The impugned judgments of the learned Civil Judge and the IInd Additional District Judge Karachi dismissing the suit as against respondent No. 1 are set aside, the suit filed by the appellant for sum of Rs.50, 000 is decreed in the sum of Rs. 50,000 in favour of the appellant/plaintiff as C against the respondent No. 1 only. The appellant will also be entitled to costs as against respondent No. 1. This appeal is dismissed as against respondent No. 2.

A. A. Order accordingly.

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