Ghulam Safdar Brohi (Applicant) VS Mukhtiar Ali Chandio & others (Respondent)

ORDER SHEET

IN

THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision No.S-73 of 2018

[Ghulam Safdar versus Mukhtiar & others]

DATE OF

HEARING

ORDER WITH SIGNATURE OF HON’BLE

JUDGE

1.For orders on office objection ‘A’.

2.For hearing of main case.

Mr.

Abdul Khaliq Kalhoro, Advocate for the Applicant.

Counsel for the Respondents called absent.

Adnan Iqbal Chaudhry J.- This civil revision application is against orders passed by the trial Court and the appellate Court for rejecting the plaint under Order VII Rule 11 CPC of the Applicant’s suit for damages against the Respondents.

2.The facts averred in the plaint were that on 21.08.2017 the Applicant was implicated by the Respondent No.1 in FIR No.55/2017 for offences under sections 457, 380, 215 PPC (theft in dwelling house at night). He was prosecuted before the Judicial Magistrate where some of the other Respondents acted as witnesses against him. However, he was eventually acquitted by judgment dated 17.07.2018, whereafter he filed the aforesaid suit.

3.Though the prayer clause sought damages for ‘defamation’, the plaint manifests that the tort alleged was in fact ‘malicious prosecution’. That much was accepted by both the Courts below. However, the trial court rejected the plaint on the ground that the Applicant had been acquitted for benefit of doubt, and that the acquittal judgment did not hold that the FIR had been lodged with malice. On the other hand, the learned appellate court was of the view that though a suit for malicious prosecution was maintainable even on an acquittal for benefit of doubt, but the jurisdiction to try such suit lay with the District Court under the Defamation Ordinance, 2002.

4.Both the courts below have acted in a most casual manner without even adverting to the law on which they have based their decision.

5.The observation of the trial court that an acquittal by benefit of doubt does not give a cause of action for malicious prosecution, is misconceived. If that were so, no suit for malicious prosecution would ever lie. Guidelines for deciding a suit for malicious prosecution have been discussed by the Supreme Court in Niaz v. Abdul Sattar (PLD 2006 SC 432) and Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478). The test is whether the prosecution was without reasonable or probable cause and initiated by malice. An acquittal then by benefit of doubt may be one of the factors that come into play while determining liability. In the circumstances of the case, the question of malicious prosecution was one of fact requiring evidence, and the trial court could not have brushed it aside by invoking Order VII Rule 11 CPC.

6.As regards the judgment of the appellate court, suffice to state that the Defamation Ordinance, 2002 deals with ‘defamation’ and not with ‘malicious prosecution’ which is a separate and distinct tort triable by the ordinary civil court under section 9, CPC.

7.For the foregoing reasons this revision application is allowed. The order dated 08-10-2018 passed by the Senior Civil Judge Mehar in F.C. Suit No. Nil/2018, and the judgment dated 28-11-2018 passed by the II-Additional District Judge, Mehar in Civil Appeal No. 67/2018 are set-aside and the suit stands revived.

JUDGE

Qazi Tahir PA/*