Tahirullah Vs Muhammad Rafiullah & another

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PESHAWAR HIGH COURT, MINGORA BENCH (DAR-UL-QAZA),

SWAT.

JUDICIAL DEPARTMENT

JUDGiUENT C.R.No.86l-P12006.

Date of hearins 0t/03/2018.

Petitioner Qahirullah) By :

Mr. Mazul lah Barkandi, Advoc ate.

Respondent (Muhammad Rafiullah & another) By: Khwaj a Sal ahuddin, Adv o c ate.

MUHAMMAD NASIR MAIIFOOZ. J:- Through the instant revision petition, petitioner has challenged the validity ofjudgment and decree dated 03.06.2006 passed by the learned District Judge/ Zilla Qazi, Dir Upper whereby his appeal against the judgment and order passed by leamed Civil Judge/Illaqa Qazi, Dir Upper dated 19.05.2005 for recovery of damages claimed to the tune of Rs.300,414l- has been dismissed.

2.Brief facts of the case as per the instant revision petition are that petitioner filed a suit against the respondent for recovery of damages for malicious prosecution with the plea that the respondent have lodged an FIR bearing No.55 on

22.03.1999 uls 377l5ll PPC on the basis of which petitioner was convicted by the learned Additional District Judgellzafr Zilla Qazi, Upper Dir. Thereafter, petitioner approached this court and vide order dated 01.03.2002 he was acquitted. Respondent/defendant was put on notice, who contested the suit by filing written statement. After recording evidence of the parties and framing of issues, the learned trial court dismissed the suit of the petitioner vide order dated 19.05.2005.

3.Feeling aggrieved, petitioner filed an appeal in the court of leamed District JudgelZilla Qazi, Dir Upper, which was dismissed vide order dated 03.06.2006, hence, the instant revision petition.

I have heard axguments of learned counsel of the parties and perused the record.

4.The suit is for recovery of Rs.300,414l- for damages on account ofmental torture and false and frivolous F.I.R and so is entitled to its recovery.

While dismissing the appeal of petitioner against the judgment and decree of leamed trial Court, learned appellate Court has based its finding on the ground of absence of any mala fide of the respondent while

prosecuting the petitioner in the above mentioned F.I.R. Judgment of this Court passed on 0l .03.2002 has been referred wherein the petitioner was acquitted for lack of evidence of the prosecution and secondly on t}re ground that the respondent had made a statement at the bar that he would withdraw from his case reported vide F.I.R No.55 but the perusal of judgment of this Court in pata No.S the number of F.I.R is 54 and not 55 but there is no evidence that any other criminal case was pending between the parties in addition to F.I.R No.54.

Reference is also made to the statement of petitioner who appeared as P.W.l and produced the details of expenses incurred while defending the criminal case as Ex.P.W.l/4 wherein he has admitted that Ex.P.W.l/4 is in the handwriting of his father. It has not been explained that why the alleged details of experuies are in handwriting of his father and not in his own handwriting ifhe had incurred the expenses himself.

_q- 5. Cross-examination of the petitioner further reveals and admitted that he is involved in other criminal cases as well lodged by his father-in-law as

well as by other persons, in addition to the suit filed by his wife, the latter suit was though decided on the basis of compromise. Similarly, respondent have also produced record of criminal cases lodged against the petitioner and one of them is lodged under section 302 PPC on2.8.2003 in police station Gandigar which are Ex.D.W.l/2 to Ex.D.W.l/5. In order to prove mental torture and malicious prosecution under the law of torts, a plaintiff is bound to prove mala fide, unwanted criminal prosecution, and that the criminal proceedings terminated in his favour resulting in his honourable acquittal.

6.In the instant case the allegations levelled by the respondent against the petitioner related to offence as provided in 377 PPC, no sane person would levy such like allegations in order to defame himself in the eyes of public, therefore, the mala fide on the part of respondent while lodging the F.I.R against the petitioner ls totally ruled out of consideration. As regards tJre next ingredient regarding termination of the criminal proceedings in favour of the petitioner, it may be mentioned, that

the charge against the petitioner was not dismissed because the charge was proved to wrong but for the reason that firstly, prosecution had failed to bring home guilt of the accused and secondly the respondent wanted to with&aw his case. In order to consider failure of prosecution to prove a case with honourable acquittal a distinguishing feature could be drawn. When a criminal Court acquits an accused it passes an order by arriving at a definite conclusion that the criminal prosecution is falsely lodged and the accused is falsely implicated or it may by extending benefit ofdoubt acquit an accused. In the latter case, the charge could not be considered as mala fide but fails due to some defective investigation by the police or for any other reason connected therewith.

7.In the instant case this Court had acquitted the petitioner due to absence of any eyewitness, therefore, this itself would not provide a cause for lq claiming damages for malicious prosecution.

8.In view of the above, I furd that the concurrent frndings of both the courts below on the material issues are based on proper appreciation of

evidence on record and thus are well founded which in my view needs no interference by this Court in this revisional jurisdiction because both the impugned judgments and decrees neither suffer from any miscarriage of justice nor misreading/non- reading of evidence on record nor I find any jurisdictional eITOr Or illegality or material irregularity. Thus the instant revision petition being devoid of any merit is hereby dismissed.

Announced /,r/

JUDGE

Dt 0t/03/2018.

HON'BLE MRJUSTICE MI'IIAMMAD NASIR MAIIFOOZ.

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