Hidayat Ullah Khan Vs Mirza Ali

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Civil Revision No.719-P/2019 Hidayat-Ullah Khan Versus Mirza Ali Khan

Date of hearing. 01.10.2020

Petitioner by: Mr. Altaf Ahmad, advocate.

Respondent by: Mr. Mati-Ullah Khan Marwat, advocate.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J. Petitioner, Hidayat- Ullah Khan has challenged the judgment and decree dated 30.01.2019 of the learned Additional District Judge-III, Peshawar, by which, his appeal, was dismissed.

2.In short facts of the instant case are that petitioner had instituted a suit for recovery of Rs.1,00,00,000/- (rupees one crore) as damages against the respondent before the learned Trial Court on the ground that on his untrue, baseless, unfounded, groundless, fabricated, invented and concocted application submitted to the then Prime Minister he has gone through from departmental inquiry which ended in his favour and he was exonerated, but during the entire process of inquiry has suffered not only financial loss but was also humiliated, abashed,

degraded and defamed within colleagues and public as well. It was further averred that in the year 1991, he was at the verge of promotion, when his case was placed before the Selection Board but on the basis of above-mentioned incident the entire process of promotion was stopped and investigation were started. Though his loss cannot be estimated in term of money, however, he claims the general damages amounting to Rs.10000000/- (rupees one crore).

The suit was instituted on 27.07.1993, which was resisted by the respondent on various legal and factual objections, the divergent pleading of the parties was resulted into the framing of issues as under: -

1.Has the petitioner cause of action? OPP 2. Whether petition is maintainable? OPD

3.Whether suit is malafide? OPD

4.Whether suit is hit by O.VII R.11 CPC?

OPP

5.Whether Court has jurisdiction? OPP

6.Is the suit hit by section 19 CPC? OPP 7. Whether the plaintiff has sustained mental torture and damages to his reputation at the hands of the defendant? OPP

8.Relief.

3.After framing of issues, the parties were directed to produce their desired evidence. On the conclusion of evidence, the learned Trial Court through its judgment dated 31.01.2012 dismissed the suit of the petitioner with

the following particulars regarding the specification of dates, which is reproduced as under: -

ORIGINAL DATE OF INSTITUTION 19.07.1993

RETURNED FOR WANT OF

JURISDICTION BY THIS COURT

REMANDED BY THE COURT OF

DISTRICT JUDGE, PESHAWAR

DECISION OF TRIAL COURT

UPHELD BY THE AUGUST

PESHAWAR HIGH COURT,

PESHAWAR THROUGH C.R 81/1

REMANDED BY AUGUST SUPREME

COURT OF PAKISTAN BY SETTING

ASIDE DECISION OF WORTHY

PESHAWAR HIGH COURT,

PESHAWAR UPON ACCEPTION OF

CIVIL APPEAL NO.1800 OF 1996

FRESH INSTITUTION AS 280/1-

NEEM

RETURNED FOR WANT OF

JURISDICTION BY THIS COURT

REMANDED BY THE LEARNED

DISTRICT & SESSIONS JUDGE, 22.02.2005

PESHAWAR

63-A/1-

PRESENT SUIT NO

NEEM

DATE OF INSTITUTION 07.03.2005

DATE OF DECISION 31.01.2012

4.The petitioner being aggrieved from the judgment and decree of the learned Trial Court has preferred appeal, which failed on 30.01.2019, hence, this petition.

5.Learned counsel for the petitioner contended that that cause of action was accrued in petitioner’s favour on 27.06.1997 when groundless and unfounded application was submitted by the respondents against him. After detailed investigation / inquiry, the petitioner was exonerated from the charges leveled against him, which inquiry was conducted by the Superintendent Engineer,

Malakand, C&W Circle Saidu Sharif, District, Swat, who, at the end of inquiry report has given his categoric opinion, which reads as: -

“With these observations, I am of the view that none of the charges have been proved against the respondent officer, I would recommend his hourable exoneration”.

6.He has also referred to the Ex-PW-1/11, the letter dated 27.06.1993, by which, he was exonerated from the charges, for which, he was charge sheeted. He in support of his contention referred to Ex-PW-1/13 dated 24.06.1993, and added that regarding the same allegations, an inquiry was initiated by the NAB against the petitioner, on the basis of which, through order dated 30.11.2011, petitioner was suspended from the service and he was arrested on 01.11.2000 (Ex-PW-2/x-6 and Ex-PW-2/x-5). During investigation of the NAB, a voluntary return (V.R) was submitted by the petitioner, which was accepted by the NAB Authorities and ultimately the matter has come to an end. He vociferated that on the same set of allegations, not only the petitioner but his brother too was charged by the NAB Authorities, in which the petitioner, due to his domestic problems, was constrained to submit voluntary return, however, his brother contested the matter, against whom, the reference was filed which was ultimately dismissed and

his brother was convicted. Further that for dismissal of petitioner’s suit, the voluntary return, plea bargain, submitted by him before the NAB Authorities, prevailed ultimately, he was non-suited. He went on to say nothing was proved against him, as such, he was entitled for recovery of general damages when unfounded, baseless and unproved allegations came to an end in the shape of petitioner’s exoneration. In support of his submission, he relied on PLD 2008 Karachi 558, PLD 1996 SC 77, PLD 1981 Karachi 575, 2007 YLR 328, PLD 1978 SC 220, PLD 1983 Karachi 345, PLD 1976 SC 469, 1968 SCMR 804 and PLD 1951 Peshawar 117.

7.Conversely, the learned counsel for the respondents supported the judgment and made his reliance on case law reported as PLD 1966 Karachi 126.

8.Arguments heard and record perused.

9.Admittedly, at the time of the institution of the suit, the charges leveled against petitioner were properly inquired, investigated from which, he was exonerated on the basis of which, the petitioner instituted the suit for recovery of damages on the ground of malicious prosecution and defamation but before the decision on the same set of allegations, an inquiry was conducted against the petitioner, who during the course of inquiry/investigation

has applied for plea bargain/voluntary return under Section 25 of the NAB Ordinance, 1999, through his application dated 04.12.2000, submitted by his counsel namely Abdul Munim Khan, Advocate by contending therein that “ in this regard my client is prepare to pay any reasonable amount mutually agreed upon between the appellant and NAB Authorities”.

10.The case was proceeded vide application, submitted by the petitioner, the details whereof, are reproduced as under: -

Name of Gist of Status Remarks

Action SNo.

accused allegations

2 Mr. Hidayat Ullah The accused The accused has The Approved . Khan Gandapur has offered to deposit commander Ex-B. E Irrigation) accumulated Rs.17.6 million RAB, Ref. No. assets through Mode of payment Peshawar Inv. Auth corruption and a. Down payment has Date corrupt Rs.7.5 million recommende 31.10.200 practices through Bank- d approval of (Judicial Assessed value Draft the offer of Custody) of assets is b. 2nd Installment Rs.17.5 Rs.25.8 million of Rs.6.00 million approx. and million payable RAB, confirmed by after two Peshawar Commander months of the has further RAB, Peshawar release order added that on (Bank finalization of guarantee to the be deposited) negotiations c. 3rd the Installment of representativ Rs.5.00 e of the million accused was payable one clearly month after warned that if the 2nd later on any installment other assets (Bank belonging to guarantee to the accused be were traced deposited) he would be proceeded against for the said property. The accused has accepted the terms of settlement.

11.It is pertinent to mention here that through letter dated 07.02.2001, the case of the petitioner was processed on the basis of application, submitted under Section 25 of the NAB Ordinance, 1999, read with Section 15, copy of letter (Ex-PW-2/x-2) is reproduced as under: -

PLEA BARGAINING

OF HIDAYATULLAH EX-SUPERINTENDING ENGINEER,

IRRIGATION DEPARTMENT NWFP PESHAWAR

Part-I Particular of the Accused

1.Name Hidayat Ullah s/o Haji Atlal Khan Gandapur

2.Resident of 6 The Mall, D.I.Khan

3.Case No. 12/11&1-2/Ops/RAB

Part-II-Brief of the Case

4.Accused Hidayatullah Ex Superintendent Engineer, Irrigation Department NWFP, Peshawar was arrested on 31.10.2000. During his service he accumulated assets beyond his legal means through corruption and corrupt practices and thus committed an offence U/S 9 read with Section 10 of the NAB Ordinance, 1999.

Part-III-Financial Calculations/Evaluation

5.Amount worked out by I.O Rs.25.8 million in assets reference.

6.amount offered by the Accused Rs.15 Million

7.Amount Re-assessed by Plea Bargain Committee (Evaluation papers att). 17.50 million

8.Comments/Final assessment According to our investigation, all the assets related to accused have been brought on record. The committee agreed the offer of payment of Rs.17.50 Million, by the accused in plea bargaining.

The accepting of the payment of Rs.17.5 million agreed by the accused as against total assets worth Rs.25.80 million is based on the review of assets mentioned at serial No.1 & 2 of the assets statement at Annexure-C by the Committee.

Part-IV-Analysis/Recommendations

9.Effect of Plea-Bargaining if accepted. A significant amount of ill-gotten money would be recovered which will be beneficial for the national economy.

10.Recommendations of Commander RAB.

Settlement may be approved under Section 225 read with Section 15 of the NAB Ordinance.

-sd- Signature of the Commander Dated: 7 Feb 2001

12.It is also worth mentioning that the petitioner-plaintiff was dismissed from service on 20.08.2001 and the appeal filed by him before the Service Tribunal was accepted on 29.06.2001 and he was reinstated in service with effect from his date of dismissal from service. The Service Tribunal had directed the department to initiate and conduct disciplinary proceedings against the petitioner.

Undisputedly, before the decision of the case, the request of the plea bargain was considered and ultimately, he has deposited the same amount. It is also not disputed that reference No.1 of 2002 was filed against the brother of the petitioner namely Inayatullah Khan on the same set of allegations and he was acquitted while invoking the provisions of section 265-K Cr.P.C. by the learned Judge, Accountability Court-II, Peshawar, through order dated 12.09.2011. Be that as it may, here the case before this Court is not in respect of the allegations against Inayat Ullah Khan but of the present petitioner.

13.The august Supreme Court of Pakistan in case titled “Muhammad Akram versus Mst. Farman Bi” (PLD 1990 SC

28)has held that the case filed for malicious prosecution shall be decided within the following six parameters, which are reproduced as under: -

“(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”.

14.Thereafter, in case titled “Muhammad Yousaf versus Abdul Qayum, the august Supreme Court of Pakistan has analyzed the aforementioned criteria for determining the damages. In my humble view the aforementioned points must co-exists, therefore, by applying the said principle as laid down by the Apex Court, no doubt, the petitioner was prosecuted but it is not proved beyond doubt that prosecution ended in plaintiff’s favour, as he submitted the application for plea bargain, on the acceptance of same he deposited the amount so calculated/ estimated against him.

15.The argument of the learned counsel for the petitioner that at the time of institution of the suit, after conducting an investigation, the petitioner was exonerated, is correct but the matter does not end here, it was in continuation of the allegations, which ultimately resulted into the inquiry conducted by the NAB Authorities, and during inquiry he opted for plea bargain and deposited the amount. Black's Law Dictionary 2nd Ed. defines plea bargain, which reads as: -

“An agreement as a result of negotiation between the prosecution and defense (at times, also the judge) which settles a criminal case, usually in exchange for a more lenient punishment. Typically, the defendant will plead guilty to a lesser crime or for fewer charges than originally charged, in exchange for a more lenient punishment than the defendant would get if convicted at trial. It is seen as a win-win for all parties as the prosecution has a certain conviction on the record, the defendant is provided a more lenient sentence than the risk of a higher one at trial and the judge is freed to move to other cases and disputes to resolve.”

16.It is also significant to mention that the 3rd ground also tilted in respondents’ favour that the defendant was activated by malice, when the factum of malice was taken that must have been proved but in the light of the application for plea bargain / voluntary return, this point too losses its significance. The aforementioned determining

points must be available to the plaintiff on three crucial dates i.e. date of the institution of the suit, the date of recording of evidence and the date of decision of the suit. In the instant case before decision of the case, the petitioner was convicted, on the basis of application, so submitted by him. The petitioner was treated under Section 25 of the NAB Ordinance, which is reproduced as under: -

“25. VOLUNTARY RETURN AND PLEA

BARGAINING: -

(a)Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue:

Provided that the matter is not sub-judice in any Court of law.

(b)Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman, NAB, may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the

offer on such terms and conditions as he may consider necessary, and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the accused.

(c)The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution, company, body corporate, co-operative society, statutory body, or authority concerned within one month from the date of such deposit”.

17.The intention of Legislature while enacting the ibid provisions and the language of the section manifests that any person who is the holder of public office or any accused of any offence under the Ordinance may voluntary return to the NAB for the assets acquired through corruption and corrupt practices by disclosing the particulars thereof, shall be released by the Chairman, NAB, with the leave of the Court. In the matter in hand, while submitting the voluntary return (VR), the accused has admitted the allegations, so leveled against him, as such, he was estopped to approbate and reprobate regarding the allegations by stating therein that these were false. For the purpose of estoppel, we may have recourse to the definition of estoppel from Osborn dictionary “it is the doctrine of law which precludes a person from denying the truth of

statement formally made by him” when the petitioner himself has accepted the allegations of corruption and corrupt practices pertaining to his assets, thereafter, he is estopped to say it otherwise. On the basis of a famous quotation “facts speak louder than words”.

18.Moreover, there are two kinds of damages i.e.

special and general. For special damages one had to prove loss sustained by him of each and every particular item leading the suffering / damage alleged by him, whereas, the general damages may also require the evidence pertaining to the facts as alleged in the plaint. The statement of the plaintiff when tested on the touch stone of rule for general damages would lead to inescapable conclusion that he has not been able to prove the same through cogent, convincing, direct and reliable evidence for granting him the general damages as alleged by him.

19.The case law relied upon by the plaintiff mainly relates to the suit for damages for mental torture, actionable claim, special and general damages and the rule of thumb, basic ingredients towards the defamatory statement and importing to the deeming clause of statute.

20.In the instant matter, the case of the petitioner was altogether different because it was not disputed that allegations were not leveled, the defendants/ respondents

have not only submitted the application but the same was taken into consideration, the matter was inquired, investigated and ultimately the petitioner while admitting the case against him opted for plea bargain. As such, in the circumstances of the present case, the case law so relied upon by the learned counsel for the petitioner is not applicable to the matter in hand.

21.Apart from the above, one of the arguments of the learned counsel for the petitioner was that retrospective effect to the proviso of section 15 of the NAB Ordinance as substituted through Ordinance No. XXXV of 2001 dated 10.08.2001, could not be given, wherein it was provided that “any accused person who has availed the benefit of section 25 of the NAB ordinance, shall also be deemed to have been convicted for an offence under this ordinance and shall stands disqualified for 25 years as above”. This argument also has no force as the petitioner’s suit was decided on 31-01-2012, when the ibid provision was holding the field.

22.Be that as it may, for the purpose of granting the general damages, the Court should follow the basic ingredients as provided in (PLD 1990 SC 28), the co- existence of all ingredients’ sine-qua-non on three crucial dates as discussed earlier.

23.The factum of conviction or acquittal has got no concern with the matter in hand as when the petitioner has applied under section 25 of the NAB Ordinance, he has accepted in a way, the allegations so leveled against him and the inquiry / investigation completed against him. Had the allegations may not leveled against the petitioner, he might not have submitted the application under Section 25 of the ibid Ordinance. As such, I am not convinced with the arguments of the learned counsel for the petitioner for the purpose of determining the damages within the meaning of section 15 of the ibid Ordinance.

24.Even otherwise, there are concurrent findings against the petitioner, which could only be set at naught, while invoking section 115 C.P.C, if the same are suffering from misreading and non-reading of evidence, if there be any jurisdictional defect or infirmity in the judgment of the learned Courts below, which the petitioner could not point out. On the basis of principle laid down by Supreme Court in Mst. Zaitoon Begum’s case (2014 SCMR 1469) that “Such findings were not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on both points of fact and law.”

25.For the reasons stated above, the instant petition stands dismissed.

26.Before parting with the judgment, the efforts made by the learned counsel for the parties must be appreciated who have properly assisted this Court for deciding this particular issue which involves the matter of plea bargain and its effect in a suit for damages.

Announced:

JUDGE

Himayat, CS