Form No:HCJD/C-121

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Civil Revision No. 31615 of 2021

Mian Khurram Saeed

Versus

Muhammad Khalid

JUDGMENT

Date of hearing: 29.06.2021

Petitioner by: Mr. Naveed Khalid Advocate
Respondent by: Mr. Ahmad Hassan Khan, Advocate

Sultan Tanvir Ahmad, J:– This Civil Revision is

directed against judgment and decree dated 07.04.2021
passed by learned Additional District & Sessions Judge,
Lahore under Section 96 of the Code of Civil Procedure,
1908 whereby suit to the extent of recovery of Rs.
10,50,000/- (as damages) was allowed by accepting the
appeal and setting aside judgment and decree dated
19.11.2018 passed by learned Civil Court.
2. The facts, necessary for the disposal of the
present civil revision, are that first information report
bearing No. 463 dated 25.11.2004 under Section 506/452
PPC was lodged on the complaint of the Petitioner in
police station Samanabad, Lahore (the ‘FIR’). The
allegation raised in FIR are that on 27.10.2004
Respondent accompanied with two unknown persons,
armed with deadly weapons, trespassed the house of the
Petitioner, gave slaps to the Petitioner and also extended
death threats, at gun point while demanding
Civil Revision No. 31615/2021 2

Rs.3,73,449/-. As per the contents of the suit, police

raided the house of the Petitioner on 03.12.2004 to cause
arrest of the Petitioner and also searched his house. As
per allegation another raid was conducted by the police at
the workplace of the Petitioner. Allegedly another raid
was conducted by the police at the workplace of the
petitioner. The petitioner obtained his pre-arrest bail and
joined investigation. On 12.12.2004, Station House
Officer prepared discharge report which was endorsed on
18.03.2005 by Assistant Superintendent Police. This
report was eventually agreed by learned Magistrate on
06.12.2005. This discharge report remained under
litigation for three to four years and finally ended up on
decision of writ petition No. 11520 of 2007 which was
decided by this Court on 03.06.2008 and discharge report
was finalized. Admittedly, civil litigation was also
pending between the parties with respect to shares, before
Stock Exchange and other related forums.
3. On 12.10.2006, Respondent filed a suit for
recovery of Rs.10.00 million (as damages) for “malicious
prosecution”. It was contended in the suit that
Respondent remained public servant and served in
various departments; that Respondent served in education
department as junior and senior instructor since 1978 and
enjoyed different respectable position as detailed in
paragraph No. 2 to 8 of the suit; that the FIR was without
reasonable and probable cause which ended up in favour
of the Respondent and the same was malicious and it was
lodged with improper motive; that as a result of the
FIR/prosecution, damage was caused to the Respondent.
4. This suit was contested by the Petitioner
raising various legal and factual objections. Out of the
Civil Revision No. 31615/2021 3

contest by way of pleadings, following five issues were

framed:-

1. Whether the plaintiff is entitled for

recovery of Rs.10.00 million as
damages for malicious prosecution
alongwith costs as stated in the
plaint? OPP
2. Whether has plaintiff not come to this
court with clean hands? OPD
3. Whether the suit is time barred? OPD
4. Whether the suit is liable to be
dismissed with special cost? OPD
5. Relief?
5. Respondent appeared as PW-1 as well as
Muhammad Rauf Tahir S/o Ch. Abdul Aziz and
Muhammad Tariq S/o Muhammad Sadiq appeared as
PW-2 and PW-3, respectively. As documentary evidence,
Ex.P1 to Ex.P89 were produced and certain documents
were marked as A to F. On the other hand, Petitioner
appeared as DW-1 and Haroon Naseer S/o Muhammad
Naseer appeared as DW-2. In the documentary evidence,
Petitioner produced Ex.D1 to Ex.D4. Learned trial Court
dismissed the suit. Aggrieved from the same, appeal No.
5088/2018 was filed under Section 96 of the Code of
Civil Procedure, 1908 on 15.12.2018 which was decided
by learned first Appellate Court. Damages to the extent
of Rs.10,50,000/- were allowed by learned Appellate
Court and accepted the appeal by setting aside the
judgment dated 19.11.2018 of the learned trial Court.
Present civil revision has been filed against the aforesaid
Civil Revision No. 31615/2021 4

judgment dated 07.04.2021 of the learned Appellate

Court.
6. Mr. Naveed Khalid, learned counsel for the
Petitioner has argued that impugned judgment and decree
dated 07.04.2021 is against law and facts of the case; that
learned first Appellate Court has committed material
irregularity and illegality while passing the impugned
judgment and decree dated 07.04.2021 which is liable to
be set-aside; that Respondent completely failed to prove
the basic ingredients which are prerequisites for awarding
damages and this fact has been ignored by the learned
first Appellate Court; that the impugned judgment is
result of misreading and non-reading of evidence. While
arguing the case, learned counsel for the Petitioner has
riled upon the case titled “Muhammad Yousaf v. Abdul
Qayyum”(PLD 2016 Supreme Court 478). The learned
counsel has also drawn the attention of the Court towards
rights of Citizens to freely report the wrongs to the
relevant department.
7. On the other hand, Mr. Ahmad Hassan
Khan, learned counsel for the Respondent has argued that
all the elements of the malicious prosecution are
established up to the standard of the proof required to be
discharged as per law. While arguing the case, learned
counsel for the Respondent has relied upon the cases
titled “Niaz and Others v. Abdul Sattar and
Others”(PLD 2006 Supreme Court 432), “Bharat
Commerce And Industries v. Surendra Nath Shukla and
Ors”(AIR 1966 Cal 388), “Malik Ghulam Muhammad
Awan v. Federation of Pakistan through Secretary M/o
finance and Others”(2013 CLD 733), “Mst. Banori v.
Jilani through Legal Heirs and Others”(PLD 2010
Civil Revision No. 31615/2021 5

Supreme Court 1186) and “Muhammad Yousaf v. Fazal

Ellahi and 35 Others” (2017 MLD 1997).
8. I have heard the arguments of learned
counsel for both the parties and also gone through the
record.
9. The elements of “malicious prosecution”
required to be proved for successful claim under
“malicious prosecution” are well established in our
jurisprudence. These elements recognized and approved
by the Honourable Supreme Court of Pakistan in the
cases titled “Muhammad Akram v. Mst. Farman
Bi”(PLD 1990 Supreme Court 28), “Mahmood Akhtar
v. The Muslim Commercial Bank ltd and another”(PLD
1992 Supreme Court 240), “Muhammad Yousaf v. Syed
Ghayyur Hussain Shah and 5 Others”(1993 SCMR
1185) are that:
(i) the plaintiff was prosecuted by the
defendant,
(ii) prosecution ended up in favour of the
plaintiff,
(iii) defendant acted without “reasonable
and probable cause”,
(iv) defendant has acted maliciously and
(v) plaintiff has suffered damages.
10. In the present case, elements No. i, ii and v
(prosecution of Respondent/Plaintiff, prosecution ended
up in favour of the plaintiff and damage as a natural
result of the said prosecution) are not in dispute. The
main contest between the parties remained regarding
“reasonable and probable cause” and “maliciousness
behind the prosecution”.
Civil Revision No. 31615/2021 6

11. Another important point raised which

requires enormous consideration is the freedom of action
to everyone to set law in motion to bring criminal to
justice, without fear of being prosecuted in case of being
unsuccessful. This threat to prospective defendant of
malicious prosecution can be highly discouraging factor
in our society and damaging to the responsibility, moral
and/or desired by law, of the Citizens to report the crime
to law enforcing agencies.
At the same time, it is also duty of the
Courts to protect innocent Citizens being victimized by
misuse of process of law, as pointed out by his Lordship
Shahid Waheed, J. while authoring the judgment in case
titled “Nadeem Ahmad v. Saif-ur-Rehman and 8
Others”(2021 MLD 354) in the following words:-
“People make false accusation for having the
feeling of enmity towards someone, being
jealous, getting rid of someone, taking revenge
or attaining cheap fame. Such people after
making false accusation become busy with their
matters, but the person against whom the false
accusation has been made falls into disgrace
and infamy for the rest of his life. Thus, in order
to curb this social evil it would be expedient to
read and interpret the word “prosecution” in
the sense of criminal proceedings instead of its
technical sense which it bears in criminal law.

12. The requirement to strike the balance

between the aforesaid competing interests/rights of the
Citizen is not just a concern in our Country but at the
same time it is debated in the rest of the world. Lord
Neubarger’s citation/survey from United States as
Civil Revision No. 31615/2021 7

discussed in case tiled “Crawford Adjusters and Others v.

Sagicor General Insurance (Cayman) Ltd and
Another”([2013] 4 All ER 8) raised several questions
regarding the cases of “malicious prosecution”,. Two of
those questions are as under:-
(i). The spectre of being sued for malicious
prosecution in the event of failure would
inhibit litigants from bringing cases with
merit and in good faith.
(ii). Litigation must have an end and so lack of
success in one action should not generate
another. The failed action for malicious
prosecution might even generate a further
such action by the original claimant.
The aforesaid questions were countered by
the Privy Council in “Crawford Adjusters” case (supra)
by requiring to prove first the “malice” and then absence
of “reasonable cause” as placing two high hurdles before
establishing the remaining elements of “malicious
prosecution”. This approach was later approved by the
Supreme Court of England in case titled “Willers v. Joyce
and another”[2017] 2 All ER 327.
13. Furthermore, Lord Viscount Simonds (Lord
Reid Concurring) in case titled “Gliniski vs Mciver”
[1962] A.C. 726 decided that want of “reasonable and
probable cause” cannot be inferred from the “malice”,
and in deciding whether there was “reasonable and
probable cause” from the prosecution, the judge cannot
ignore the fact of the prosecutor’s own belief.
In the case titled “Gliniski vs Mciver”
(supra) House of Lords placed higher standard of
Civil Revision No. 31615/2021 8

damages in the case of malicious prosecution to prove

“malice” on the part of the defendant and want of
“reasonable and probable cause”.
14. The following extract from the judgment by
the august Supreme Court of Pakistan in the case titled
“Niaz and Others v. Abdul Sattar and Others”(PLD 2006
Supreme Court 432) is highly relevant:-
“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. H It is
pertinent to mention here that judgments of both
the courts below are in consonance with the law
laid down by this Court in the following
judgments keeping in view the conduct of the
Petitioners:
(i). Muhammad Bashir V. The State
(PLD 1982 SC 139).
(ii). Muhammad Yousaf v. Syed
Ghayyur Hussain Shah and Others (NLR
1993 SCJ 462).
(Emphasis supplied)
Civil Revision No. 31615/2021 9

In case titled “Muhammad Yousaf v. Abdul

Qayyum”(PLD 2016 Supreme Court 478), the
Honourable Supreme Court of Pakistan decided that mere
absence of “reasonable and probable cause” is not
sufficient to prove the “malice” and both were to be
proved independently. Paragraph “9” of the said
judgment is relevant which is as under:-
“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
Civil Revision No. 31615/2021 10

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)
The importance of proving want of
“reasonable and probable cause” as well as “malice” is
also emphasised by his Lordship Malik Shahzad Ahmad
Khan, J. in case titled “Alam Din v. Muhammad
Hussain”(PLD 2012 Lahore 279) as follows:-
“10. Prosecutor may be wrong, but if he
honestly believed that accused had committed a
criminal offence, he could not be initiator of
malicious prosecution. Even otherwise, malice
alone, would not be enough, there must also be
shown to be absence of reasonable and
probable cause. 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 an 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
Civil Revision No. 31615/2021 11

irrelevant as observed by Denning L.J. in

Tempest v. Snowden (1952) 1 K.B. 130. As
discussed earlier, the petitioner/plaintiff was
declared guilty during police investigation, his
application for acquittal moved under section
249-A of Cr.P.C was dismissed by the learned
trial court and his application whereby he
challenged the above mentioned order of trial
court was also dismissed by High Court,
therefore, it cannot be said that the prosecution
against the petitioner was launched by the
respondent “without any reasonable and
probable cause”.
11. It is pertinent to mention here that
judgments of both the courts below are in
consonance with the law laid down by the
Hon’ble Supreme Court of Pakistan. It is by
now, a well settled law 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
justifiable reason and it was due to malicious
intention of the defendant and not with a mere
intention of carrying the law into effect. In the
case reported as Sher Muhammad v. Maula
Bux (1995 CLC 1134), the learned Single
Judge of Sindh High Court at Karachi,
observed as under:--
“Suit for damages against malicious
prosecution --- Essentials---- Plaintiff in an
action for malicious prosecution must prove,
that prosecution was malicious; and that
Civil Revision No. 31615/2021 12

defendant had acted without reasonable and

probable cause in launching such malicious
prosecution--- Prosecution could not be
malicious merely because it was inspired by
anger--- Prosecutor, however, wrong headed
may be, if he honestly thought that accused had
been guilty of a criminal offence, he could not
be initiator of malicious prosecution. Malice
alone, would not be enough, there must also be
shown to be absence of reasonable and
probable cause.”
(Underlining is added)
The following part of the judgment the
Honourable Supreme Court of Pakistan in the case titled
“United Bank Limited and 5 Others v. Raja Ghulam
Hussain and 4 Others”(1999 PLC 106) is highly
relevant:-
“This Court further laid down in Abdur Rauf’
case (Supra), that in an action for malicious
proceedings, the plaintiff must show that the
prosecution of the plaintiff by the defendants
was actuated with malice and that there was
absence of reasonable and probable cause in
launching the prosecution against the
plaintiff. The relevant observations of the Court
in this behalf were as follows:-
“The terms malice in a prosecution of
the nature which is before me, 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 justice. It should, therefore, be
Civil Revision No. 31615/2021 13

shown that the prosecutor was not

actuated by this desire but by his
personal feelings – See Mitchell v.
Jenkins, Pike v. Waldrum and Stevens v.
Midland Countries. Further, malice
should be proved by the plaintiff
affirmatively:-- Abrath v. N.E. Ry. (1886)
11 CA 247. Malice may sometime be
inferred from absence of reasonable
and probable cause but this rule has no
general application and there may be
cases where it would be appropriate not
to infer malice from unreasonableness.
Further, if reasonable and probable
cause is proved, the question of malice
becomes irrelevant, and also defect of
want of reasonable and probable cause
cannot be supplied by evidence of
malice – See Turner v. amber (1847). 10
QB 252: Mitchell v. Jenkins; Brown v.
Hawks (1891) 2 QB 718 and Herniman
v. Smith (1938) AC 305. It would be
proper here to quote the following
observation of Dening, LJ (as he then
was) in Tempest v. Snowden, (1952) 1
KB 130:
“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”.
The same rule has been applied in this
country.
Civil Revision No. 31615/2021 14

“11. However, there is no finding that the

appellant was actuated by any malice against
respondent No.1 for lodging the report.
Further, there is also no averment in the plaint
that the report was lodged without any
reasonable or probable cause. Indeed, in the
absence of any averment no amount of evidence
could be looked into. Still in the absence of any
pleadings, no evidence was produced on behalf
of respondent No.1 in this regard. Further, in a
decision of the Lahore High Court in the case of
Abdul Shakoor v. Lipton & Company (AIR 1924
Lah.1), it was held that in a suit for malicious
prosecution proof of existence of malice itself is
not sufficient but should be accompanied by
proof of absence of reasonable and probable
cause. This view was reiterated by the same
High Court in Nur Khan v. Jiwandas (AIR 1927
Lah. 120) and Gobind Ram v. Kaju Ram (AIR
1939 Lah. 504).
(Emphasis supplied)
15. A careful examination and study of the
aforesaid case law leads to the conclusion that “malice”
and “reasonable and probable cause” are required to be
proved by the plaintiff, in the cases of “malicious
prosecution”, independently. When the issue of
“reasonable and probable cause” is not established, the
question of “malice” becomes irrelevant and even
otherwise, the Courts may not be required to probe
further because of failure of claimant to cross one hurdle.
However, when “reasonable and probable cause” is
established, the Court should carefully examine the
element of “malice” on the part of defendant.
Civil Revision No. 31615/2021 15

Some inference of “malice” can be drawn ,

in limited cases as pointed out in “United Bank” case
(supra), from absence of “reasonable and probable cause”
to prosecute. However, by and large the Courts must take
“malice” as an independent factor and try to find or seek
out the evidence on the same before giving the finding on
the issue.
16. To ensure that the upright Citizens and right
minded persons of society can discharge their
responsibility of reporting crime(s) to law enforcing
agencies without any fear of being sued for “malicious
prosecution”, in case of discharge or acquittal of the
accused and on the other hand to confirm that no
innocent person becomes victim of false involvement in
criminal litigation, in the hands of persons having
influence in the society due to their position, contacts or
long pockets as well as to strike a balance between
aforesaid two important rights of Citizens, the learned
Courts must cautiously verify that the one who claims
damages under tort of “malicious prosecution” must
prove all the aforesaid ingredients by discharging the
burden of proof up to the requisite standard.
17. In the present case, “malice” has been
implied by learned first Appellate Court from the fact
that FIR lodged by Petitioner ended up in favour of the
Respondent. The ingredient of “malice” was discussed in
paragraph Nos. 11 and 12 of the impugned judgment. In
paragraph No. 11, Ex.P.84, which is cancellation report
prepared by the Investigation Officer, has been relied
upon. Paragraph No. 12 of the impugned judgment
contains the finding as to “malice” which is as under:-
Civil Revision No. 31615/2021 16

“12. Keeping in view of above

discussion, it is clear that prosecution
was initiated by the present
respondent/defendant of the suit and said
prosecution has ended in favour of
present appellant/plaintiff of the suit. It
is also on record that FIR/Exh. P-80 was
lodged by present respondent being
complainant found false & frivolous and,
resulted in cancellation of FIR. This fact
proves that present respondent lodged
the FIR against present appellant with
malafide intention and with malice only
to convert the civil dispute of shares into
criminal one”.
(Underlining is added)
18. Reading of above clearly reflects that
instead of considering “malice” as an independent
ingredient/element of “malicious prosecution”, the same
is being implied from lodging and cancellation of FIR
(Ex.P80 and Ex.P84). Scanning of evidence reflects that
there is sufficient material provided by the
Respondent/plaintiff as to his good repute and holding
various reasonable positions, initiation of prosecution and
its ending in his favour but hardly any attempt is made to
establish “malice”, as an independent factor/element.
19. Proceedings have undoubtedly ended up in
favour of the Respondent/Plaintiff but based upon the
police report which itself says nothing apart from giving
cause of discharge based on “face to face” discussion
(‫)بلمشافہ گفتگو‬. This report was accepted by learned
Magistrate keeping in view the criminal law and
jurisprudence. The endorsement of discharge report by
Civil Revision No. 31615/2021 17

the learned Magistrate was disagreed by the learned

Additional Sessions Judge, vide judgment dated
07.04.2021, which was later set-aside by this Court in
writ petition No. 11520/2007. As a result thereof, the
discharge of the Respondent/Plaintiff became final. The
said writ petition was accepted for the reason that order
of learned Magistrate was not amenable to revisional
jurisdiction of the learned Court of Sessions, being not a
judicial order. For the clarity, the relevant part of the
decision in writ petition No. 11520/2007, is being
reproduced:-
“6. The perusal of the record reveals that the
order passed by the learned Magistrate was on
police file, whereby a request had been made
for cancellation of the case and by no stretch of
the argument the same could be termed as a
judicial order amenable to the Revisional
jurisdiction of the Court of Sessions. In this
view of the matter, I hold that the Court of
Sessions was not competent to entertain
revision petition of respondent No. 3.
7. Resultantly, this petition is allowed and the
impugned order dated 23.12.2006 passed by the
learned Additional Sessions Judge, Lahore is
hereby set aside”.

20. The learned first Appellant Court is drawing

presumption of “malice” from report of police officer
filed (under Section 173 Cr.P.C.), without even
examining the maker of the report to unearth as to the
reason of discharge and that how the Investigation
Officer found the Respondent/plaintiff innocent, during
“face to face” discussion (‫)بلمشافہ گفتگو‬. It was important
Civil Revision No. 31615/2021 18

for Respondent/Plaintiff to produce the possible evidence

to prove entire ingredients of “malicious prosecution”
and it was the duty of the learned Court to secure all the
possible evidence as to the elements of the “malicious
prosecution” before reaching to the finding and allowing
damages.
21. Finding of “malice” on the basis of the
report under Section 173 of the Code of Criminal
Procedure, 1898, without examining the maker of the
statement/report, is unsafe, leaving no option with this
Court apart from making an order of remand for
procuring the evidence of concerned police official(s)
and careful examination as to the ingredients of
“malicious prosecution”. Resultantly, the present civil
revision is allowed and judgment and decree dated
07.04.2021 passed by learned first Appellate Court is set-
aside and case is remanded to learned first Appellate
Court to record further evidence, as observed above, in
terms of Order 41 Rule 27 (b) of the Code of Civil
Procedure, 1908.
22. The learned first Appellate Court shall re-
decide the matter after considering all the
elements/ingredients of the “malicious prosecution”
within three-months from the date of the receipt of the
certified copy of this order.

(Sultan Tanvir Ahmad)

Judge
APPROVED FOR REPORTING

Judge
Jamshaid Ali
Hashmi