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PLD 1990 Supreme Court 28 Present Muhammad Afzal Zu11ah and Usman Ali Shah JJ MUHAMMAD AKRAM-- Petitioner Versus Mst-FARMAN BI-- Respondent

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PLD 1990 Supreme Court 28 Present Muhammad Afzal Zu11ah and Usman Ali Shah JJ MUHAMMAD AKRAM-- Petitioner Versus Mst-FARMAN BI-- Respondent PLD 1990 Supreme Court 28 Present Muhammad Afzal Zu11ah and Usman Ali Shah JJ MUHAMMAD AKRAM-- Petitioner versus Mst-FARMAN BI-- Respondent Civil Petition for Leave to Appeal No. 37-11 of 19'89, decided on 24th May, 1989. (On appeal from the judgment dated 17-12-1988 of the Lahore High Court, Rawalpindi Bench, in Civil Revision No. 388/D of 1988). (a) Constitution of Pakistan (1973)-- --- Art. 185 --- Appeal before Supreme Court --- Concurrent findings of fact by the Courts below --- No infirmity in the judgments was found on scanning the evidence and judgments did not suffer from any error of law or principle and not even of appreciation of evidence --- Findings of lower Courts thus were unexceptionable. (b) Malicious prosecution-- --- Ingredients. The following are the elements of tests for malicious prosecution: (i) That the plaintiff was prosecuted by the defendant; (ii) That the prosecution ended in plaintiff's favour; (iii) That the defendant acted without reasonable and probable cause; (iv) That the defendant was actuated by malice; (v) That the proceedings had interfered with plaintiff's liberty and had also affected her reputation; and finally (vi) That the plaintiff had suffered damage. (c) Malicious prosecution.. --- Damages --- Assessment --- Fact that exact amount was not determinable could not be reason for dismissal of a suit for malicious prosecution. Mohammad Sharif v. Nawib Din P L D 1957 Lah. 283 ref, (d) Malicious prosecution-- ---- Suit for damages for malicious prosecution in respect of civil action --- Where there was provision in law for awarding costs, successful party was not barred to file suit for damages for malicious prosecution. Mahomed Amin v. Jogendra Kumar Bannerjee and others PLD 1947 PC 95; Berry v. British Transport Commission (1960) 3 All E R 322; Savile v. Roberts 1 Ld. Raym. 374; Jagdeo Sahu v. Dwarka Prasad A I R 1948 Pat. 88; Quartz Hill Gold Mining Co. v. Eyre (1883) 11Q B D 674; Sultan Ahmad Awan v. Ghulam Muhammad Awan PLD 1987 Lah. 663; Ali Asghar v. Fazal Akbar.and 2 others 1988 C L C 147; Kapoor Chank Rikhi Ram Mahajan v. Hakin Jagdish Chand Siripat Rai and another A I R 1974 Punj. and Har. 215; Preinji Damodar v..L.V. Govindji & Co. A I R 1947 Sind 169; Genu Ganapati Shivale v. Blialchand Jivrai Raisoni and another A I R 1981 BoAn. 170; Halsbury's Laws of England, 3rd Edn., Vol. 25, p. 367, para. 717, Chhanganlal Sakarlal v. Municipality of Thana 34 Born. LR 143; AIR 1932 Bom. 259; Mohini Mohan Misser v. Surendra Narain Singh AIR 1915 Cal. 173; Nasiruddin Karim Mahomed v. Umerji Adam & Co. AIR 1941 Born. 286; C.M. Agarwalla v. Halar Salt and Chemical Works AIR 1977 Cal. 356; T. Subraymanya Bhatta v. A. Krishna Bhatta AIR 1978 Ker. 111 and Berry v. British Transport Commission (1960) 3 AER 322 ref. (e) Tort-- --- Malicious prosecution ---"Criminal prosecution" and "civil prosecution" --Distinction for purpose of denying the right to institute the latter in torts is not at all well founded in Pakistan ---Action for damages for malicious prosecution which is part of common law of England is no more an authority for Pakistan under its own constitutional and legal set up.-[Malicious prosecution]. (f) Civil Procedure Code (V of 1908)-- --- Ss. 35, 35-A & 95(2) --- Damages for malicious prosecution --- Costs awardable by a Court can either be compensatory costs or actual costs--- Costs awarded under S.35-A though can be taken into account when awarding "damages", they are not even by statutory dispensation, the same as the damages --- Conditions for application of S. 35-A are different and much less than the elements set out for an action for malicious prosecution --- Unless a case is fully covered by S. 95(2), the award of costs under Ss. 35 & 35-A, C.P.C., instead of barring a suit for damages supports the right for action for damages for malicious prosecution. Section 35 essentially deals with the actual costs of the 'suit' while under Section 35-A, they-are 'compensatory. Costs awardable by a Court, can either be compensatory costs (S.35-A) or actual costs (S. 35). Actual costs are awarded by a Court in order to secure the expenses undergone by a successful litigant in the assertion of his rights before a Court. They are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made a source of profit for the successful party. They are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him. And further that even under Section 35-A costs are compensatory and are not awarded as penalty against an unsuccessful party. All this shows that though the costs awarded under section 35-A, C.P.C. can be taken into account when awarding "damages", they are not even by statutory dispensation, the same as the damages". The conditions for application of section 35-A are different and much less than the elements set out earlier for an action for malicious prosecution. The actual costs of the suit under section 35, C.P.C. are at a much lower level when considered in this behalf. Besides this, a combined reading of subsection (4) of action 35-A and subsection (2) of section 95 which deal with the effect of the orders under these provisions on actions for "damages", is clearly indicative of the legislative intent; that unless a case is fully covered by Section 95(2), the award of costs under sections 35 and 35-A, instead of barring a suit for damages supports the right for such an action. (g) Civil Procedure Code (V of 1908)-- -Ss. 35 & 35-A--Suit for damages for malicious prosecution--Award of costs in an earlier suit to the successful party does not at all create any bar to the maintainability of the suit for damages for malicious prosecution. (h) Civil Procedure Code (V of 1908)-- -S. 9--Term "civil nature"---Suits for damages in tort on account of malicious prosecution are covered by term "civil nature" given in S. 9 C.P.C.--[Words and phrases]. (i) Common Law--- -Application to Pakistan --- Resort to a rule of common law of England in reference to the one of Pakistan law on a rule of Islamic Law or jurisprudence or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitutional legal set up. Mohammad Bashir v. The State PLD 1982 S C 139 and Federation of Pakistan through Secretary Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaque and another PLD 1983 SC 273 ref Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930 approved. (j) Civil Procedure Code (V of 1908)- -Ss. 9, 35, 35-A & 95(2) --- Suit for damages for malicious prosecution -- competency --- If an express bar cannot be enacted by the legislature with regard to the subject of suit, Courts in Pakistan have no jurisdiction to import an implied bar from another jurisprudence --- Suit for damages for malicious prosecution here costs had already been awarded in the other suit thus was competent. (k) Islamic Jurisprudence- ---Torts --- Rights of good reputation are given equal place in Islam with the rights to life and property --- Islamic injunctions. Khutbat-i-Rasul by Mohammad Mian Siddiqui of the Islamic Research Institute of the International Islamic University, Islamabad, Chap. 26, 0.155 and Islamic Law of Torts by Dr. Liaqat Ali Niazi, Chaps. 9, 10 & 17 mentioned. (l) Defamation-- --- Acts and statements which per se are not defamatory, may become so in the context of circumstances of a particular case. (m) Malicious prosecution- ,--False claim of marriage by a person with a widow on account C ad blood ),between the parties would be malicious in every respect. Fiqah-ul-Qur'an published by Adara-i-Fikr-e-Islami, Karachi, Vol. III, 2nd Publication, 1986 ref. Maulvi Sirajul Haq, Advocate Supreme Court and Manzoor Elahi, Advocate-on-Record for Petitioner. Date of hearing: 24th May, 1989. ORDER MUHAMMAD AFZAL ZULLAH, J.-- This petition for leave to appeal by a defendant calls in question judgment dated 17-12-1988 of the Lahore High Court, whereby his Civil Revision in a matrimonial case resulting in award of damages against him in Torts, for malicious prosecution, was dismissed. The brief facts as narrated in the impugned judgment are that: "petitioner claimed that Mst. Farman Bi respondent was married to him, some years ago, and, had lived with him as his wife for some time and thereafter left his house for her parents' house, never to return. Upon these allegations, he brought a suit for restitution of conjugal rights against respondent, in the Family Court at Jhelum on 15-12-1982. Respondent resisted the suit and controverted the allegations in regard to her marriage and its consummation. In nutshell, defence offered by her was that the petitioner had set forth a false claim of marriage against her. To resolve this dispute, the trial Court settled following two issues:-- “whether the defendant is legally -wedded wife of the present plaintiff? If so to what effect on the merit of the suit?” Parties to the suit led evidence for and against their respective versions upon consideration of the evidence, learned Judge Family Court found that "the plaintiff had badly failed to discharge the burden of proving the present issue. Hence it is concluded, against him". While commenting upon the oral evidence produced in support of marriage and the discrepancies existing therein, learned Judge Family Court in the earlier part of his judgment observed, "in such circumstances, I fail to understand that how a woman can agree to marry a person when her sister and her, brother were at daggers drawn with their respective wives and husbands.
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