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. The defendant herself appeared in the witness box
and deposed in examination-in-chief that the present suit was mala fide instituted against
her on the basis of enmity between the two families caused due to above-referred family
litigation. She deposed in examination-in-chief that she was a widow of, one Muhammad
Yousaf who was killed in Bengal during war and upto the day of deposing evidence
before this Court, she was receiving payment of the pension of her deceased husband.
The plaintiff also produced a document concerning decision of Arbitration Council,
Ex.P.1 in order to prove that the marriage ceremony had really occurred between the
parties. Such decision is not binding upon the findings of this Court. Moreover from the
wording of that decision it is evident that even before that council-there was a dispute
concerning existence of relationship of husband and wife between the parties". As a
result of these findings, suit for restitution of conjugal rights was dismissed with costs by
the Family Court, on 2-4-1984. Though the order dismissing the suit was appealable
under section 14 of the Family Courts Act 1964, yet for reasons of his own not
discernible from the present records, petitioner did not choose to prefer an appeal against
adverse findings in the judgment of the Family Court. Therefore, decision dated 2-4-1984
attained finality under the law and shall be deemed to have been accepted by the
petitioner." The learned Judge in the High Court further noted: "On 17-10-1984, the
action out of which the present civil revision has arisen was commenced by the
respondent to recover Rs. 25,000 as damages for malicious prosecution. Previous history
of the litigation to support malicious prosecution and claim for damages was enumerated
in the plaint and made basis for a cause of action against the petitioner. Petitioner
contested the suit and took up several defences. It was pleaded that the form of the suit
was defective; that the plaintiff had no cause of action to sue for malicious prosecution
and to claim damages; that the suit for damages was out of malice; that Mst. Farman Bi
was his legally-wedded wife. However, earlier litigation between the parties and its result
were not controverted.
Pleadings gave rise to following issues:--
"(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the suit is mala fide? OPD
(4) Whether the suit for restitution of conjugal rights instituted by the defendant defamed
and damaged the plaintiff? OPP
(5) Whether the plaintiff is entitled to recover Rs. 25,000 as damages from the defendant?
OPP
(6) Relief."
Mst. Framan Bi examined Mohammad Ashraf PW-1 and herself entered in the witness
box as PW-2 to make her own statement to establish her case. It was brought out in the
evidence that the petitioner had lodged a false case for restitution of conjugal rights
against her out of malice and without reasonable and probable cause for it. It was deposed
that Mst. Farman Bi was not the wife of the petitioner nor had she ever lived with him as
his wife and cohabited. Petitioner refuted this evidence by his own. statement and that of
his real brother Mohammad Aslam. Mohammad Aslam testified that marriage had taken
place 12/13 years ago and respondent Mst. Farman Bi resided with him as his wife for
6/7 years. It is in evidence and is otherwise also not disputed that Mst. Arshan Bi sister of
Mst. Farman Bi was married to Mohammad Aslam D.W-1, a real brother of petitioner
(Mohammad Akram). Likewise Mst. Walayat ' Bi was married to Khadim Hussain, real
brother of Mst. Farman Bi. This was an exchange marriage. Mst. Arshan Bi has since
bLn divorced under a Court decree, in the result of a suit for dissolution of marriage riled
by her against her husband and in regard to Mst. Walayat Bi, some litigation is stated to
be pending in Court. It is in evidence that a son born to Mst. Walayat Bi from her'
marriage with Khadim Hussain is getting maintenance under a Court, decree. It also
transpires from the record that Khadim Hussain and his real mother were convicted for
abducting the above minor child but were acquitted of the charge in appeal preferred by
them. Relevant records of this litigation fought out between the two families had not been
brought on file of this case. Alleged marriage between the parties was oral. It was neither
reported to Nikah Registrar nor was it registered with him. Marriage solemnized under
Muslim Law required compulsory registration under section 5 of the Family Laws
Ordinance.1961. Therefore, though registration of marriage was compulsory under the
afore noted provision of law, yet its non- registration, in itself, does not invalidate it, if
the same is otherwise proved to have taken place in accordance with requirements of
Islamic Law. However, if the factum of marriage is in serious dispute between the parties
to it, its non -registration may cause some doubts on its existence and solemnization. See
Dr. A.L.M. Abdullah v. Rokeya Khatoon and another P.L.D. 1969 Dacca 47".
Learned Judge after noting the above facts and background in the impugned judgment
rendered findings about the claim of -marriage by the petitioner and related questions as
follows:--
"In face of civil and criminal litigation between the two families and presence of
seriously deteriorated and acrimonious relations, it is difficult to entertain an idea of
marriage of the petitioner, with the respondent. In the existing background, it would be
clear that the petitioner made a false claim of consummated marriage against Mst.
Farman Bi respondent out of spite and without reasonable and probable cause existing for
it merely to hurt, humiliate, and defame her who was a widow whose husband had laid
his life in defence of the country in East Bengal. She was recipient of Government
pension also. Respondent had vehemently denied her marriage with the petitioner who
otherwise was her close r - elation. As said above, suit for restitution of conjugal rights
had failed and the judgment given in the suit attained finality and put a final seal upon its
non-existence. Independent of the judgment of Family negating the marriage, there is no
clear and convincing evidence to establish marriage of the petitioner with the respondent
Upon review of whole evidence, ambient circumstances and the natural probabilities of
the case, falsity of the- marriage set up is quite evident which appeared to have been set
forth merely to defame the respondent and other members of her family. There is no
doubt that a false claim of consummated marriage hurts, humiliates, defames and lowers
the person falsely charged in estimation of others. Respondent belonged to a respectable
family of agriculturist's class. There can be no dispute that in the result of litigation
launched against her fair fame and reputation like her family members seriously suffered
in addition to causing her mental agony of the Court litigation which remained pending
for a year and a half. She defended the suit through an Advocate and was forced to
expand money upon her defence."
In so far as the concurrent findings of facts by the two Courts below are concerned, they
are unexceptionable. The learned Judge in the High Court itself scanned the evidence to
discover any infirmity in the appellate judgment, but found none. On our part also, after
hearing the learned counsel as also after going through the record, on this aspect of the
matter, we Eire satisfied that the impugned judgments do not suffer from any error of law
or principle not even of appreciation of evidence. The earlier suit filed by the petitioner
was undoubtedly a malicious prosecution (in its wider sense including also civil action).
On the 2nd aspect of the factual side of the case also namely, the conclusions regarding
ingredients of "malicious" prosecution we have nut reason to differ with the impugned
findings that the plaintiff -respondent frilly satisfied the tests laid down from time to time
in this behalf. The learned counsel -could not challenge the following elements of the
tests.
(i) That the plaintiff was prosecuted by the defendant;
(ii) That the prosecution ended in plaintiffs 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.
The difference of opinion in the two lower- Courts regarding the assessment of damages
has correctly been resolved by the High Court with reference to the remarks of Kaikaus,
J. in cases like the -present one. They read as follows:--
"Some damage must necessarily have been caused. If we are to assess the damages only
if the exact amount is proved, no damages can ever be decreed, Damages have so many
times to be awarded by the rule of thumb but the fact that the exact amount is not
determinable can be no reason for dismissal of a suit."
(Mohammad Sharif v. Nawab Din (PLD 1957 Lah. 283)
The learned counsel for the petitioner has vehemently reiterated the legal contention
raised before and repelled by the High Court that a "suit for damages for malicious
prosecution in respect of civil action does not lie and that in any event, it was not
maintainable as there was provision in law for awarding costs to the successful party".
Reliance has been placed on "Mohammad Amin v. Jogendra Kumar Bannerjee and
others" (A.I.R. (34) 1947 Privy Council 108).
The learned Judge in the High Court as a result of careful survey of case law on the point,
which started with the critical analysis of the Privy Council judgment (of course with
respect) and ended with reference (with approval) to the English case of Berry v. British
Transport Commission (3 All E.R. 322 (1960), came to a proper conclusion, that &re was
no bar, as canvassed, In this behalf he made reference to the following:--
(1) Mohamed Amin v. Jogendra Kumar Bannerjee and others (A I R (34) 7.947 Privy
Council 108).
(2) Savile v. Roberts (1 Ld. Raym. 374).
(3) Jagdeo Sahu v, Dwarka Prasad (A I R 1948 Patna 88.
(4) Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q B D 674.
(5) Sultan Ahmad Awan v. Ghulam Muhammad Awan PLD 1987 Lahore 663.
(6) Ali Asghar v. Fazal Akbar and 2 others 1988 C L C 147 (Peshawar).
(7) Kapoor Chank Rikhi Ram Mahajan v. Hakin Jagdish Chand Siripat Rai and another A
I R 1974 Punjab and Haryana 215.
(8) Premji Damodar v. L-V. Govindji & Co. A I R (34) 1947 Sind 169.

(9) Genu Ganapati Shivale v. Bhalchand Jivraj Raisoni and another AIR 1981
Bombay 170.
(10) Para 717 at page 367 of Halsbury's Laws of England, 3rd Edition Volume 25.
(11) Chhanganial Sakarlal v. Municipality of Thana 34 Bom. LR 143, AIR 1932 Born
259.
(12) Mohini Mohan Misser v. Surendra Narain Singh AIR 1915 Cal 173.
(13) Nasiruddin Karim Mahomed v. Umerji Adam & Co. AIR 1941 Bom 286.
(14) C.M. Agarwalla v. Halar Salt and Chemical Works AIR 1977 Cal. 356.

(15) T. Subraymanya Bhatta v. A. Krishna Bhatta AIR 1978 Ker. (FB).

(16) Berry v. British Transport Commission 3 All England Report 322(1960).
We having carefully perused the reasoning of the learned Judge in the High Court, agree
with him that the distinction in our country between criminal „prosecution‟ and the 'Civil‟
'prosecution' for purpose of denying the right to institute the latter for damages in torts, is
-not at all well founded. The Privy Council judgment showing itself a conflict of trend for
some time in the judgments in a country where "the action for damages, for malicious
prosecution is part of the common law of England" is no more an authority for us under
our own constitutional and legal set up. Even otherwise we do not agree with the learned
counsel that the denial of right to sue for damages in such like cases, was universally
accepted as good law. The contrary view, with respect, is more logical and is much
convincing. The learned Judge has correctly analysed the case-law in this behalf.
The, second point in the arguments advanced from the petitioner's side, if not more, is
equally faulty and when demolished, seriously affects the first one also. The provisions
for costs, in our laws to be awarded to a successful litigant are mainly contained in the
Code of Civil Procedure. Sections 35, 35-A and 95 thereof have rightly been referred to.
They read as follows:--
Edition 35. Costs.--(1) Subject to such conditions as may be prescribed, and to the
provisions of any law for the time being in force, the costs of and incident to all suits
shall be in the discretion of the Court, and the Court shall have full power to determine by
whom or out of what property and to what extent such costs are to be paid, and to give all
necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction
to try the suit shall be no bar to the exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall state
its reasons in writing.
- (3) The Court may give interest on costs at any rate not exceeding six per cent per
annum, and such interest shall be added to the costs and shall be recoverable as such.
Section 35A. Compensatory -costs in respect of false or vexatious claims or defences.--(I)
If in any suit or other proceeding, (including an execution proceeding), not being an
appeal, any party objects to the claim or defence on the ground that the claim or defence
or any part of it is, as against the objector, false or vexatious to the knowledge of the
party by whom it has been put forward, and if thereafter, against the objector, such claim
or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the
objection has been taken at the earliest opportunity and if it is satisfied of the justice
thereof, may after recording its reasons for holding such claim or defence to be false or
vexatious, make an order for the payment to the objector by the party by-whom such
claim or defence has been put forward, of costs by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding (five
thousand) rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount
is less:
Provided that where the pecuniary limits of the jurisdiction of any Court exercising the
jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act,
1887, and not being a Court constituted under that Act, are less than two hundred and
fifty rupees, the. High Court may empower such Court to award as costs under this
section any amount exceeding two hundred and fifty rupees and not exceeding those
limits by more than one hundred rupees:
Provided further, that the High Court may limit the amount which any Court or class of
Courts is empowered to award as costs under this section.
(3) No person against whom an order has been made under this section shall, by reason
thereof, he exempted from any criminal liability in respect of any claim or defence made
by him.
(4) The amount of any compensation awarded under this section in respect of a false or
vexatious claim or defence shall be taken into account in any subsequent suit for damages
or compensation in respect of such claim or defence.
Section 95. Compensation for obtaining arrest, attachment or injunction on insufficient
grounds.
(1) Where, in any suit in which an arrest or attachment has been effected or a temporary
injunction granted under the last preceding section,--
.(a) It appears to the Court that such arrest, attachment or injunction was applied for on
insufficient grounds, or
(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or
probable ground for instituting the same, the defendant may apply to the Court, and the
Court may, upon such application, award against the plaintiff by its order such amount,
not exceeding one thousand rupees, as it deems a- reasonable compensation to the
defendant for the expense or injury caused to him:
Provided that a Court shall not award, under this section an amount exceeding the limits
of its pecuniary jurisdiction."
(2) An order determining any such application shall bar any suit for 'compensation in
respect of such arrest, attachment or injunction.
It would be seen that Section 35 essentially deals with the actual costs of the 'suit' while
under Section 35-A, they are 'compensatory'. Their nature is well summarised by Mr.
Amer Raza A. Khan in his well known commentary on C.P.C. that: 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 expense's 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, CPC 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 section 35-A and subsection (2) of section 95
which deal with the effect of the orders under these provisions on actions for "damages",
are clearly indicatives 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."
The further observations by the High Court about the availability or otherwise of these
provisions to a Family Court under the Family Courts Act on the above view, need not be
commented upon; under the assumption that it can award the relevant costs. But it has
correctly been held by the High Court that the award of Rs. 2 as costs of the earlier suit to
the respondent, by the Family Court does not at all create any bar to the maintainability
of the present suit by her for damages.

There is Another very important aspect of the matter. Section 9 of the C.P.C. provides
that "the Court shall (subject to the provisions herein contained have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either expressly barred
or impliedly barred." It has not been denied that suits for damages in tort on account of
malicious prosecution are covered by the term 'civil nature'. The question of 'prosecution'
of a civil action has Already been dealt with. Thus the present suit was covered by, the
1st part of Section 9. Regarding the second part, learned counsel did not rely on any
provision of law expressly barring the, trial of such suit. His reliance on the Privy
Council judgment in the case of Mahomed-Amin and in turn on an alleged (though
doubted) rule of Common Law of England at best, could be pressed in service as an
implied bar. Is it possible? '
The answer would be in the negative. The resort -to a rule of common law of England in
preference to the one of Pakistan Law or 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-- See the Lahore case of Haji Nizam Khan v. Additional
District Judge, Lyalipur and others (PLD 1976 Lahore 930) as approved by his Court in
the case of Mohammad Bashir v. The State -PLD 1982 SC 139.
In the present case the suit relates to the right to good reputation granted as a basic right
to the citizen. It has already been held so in The Federation of Pakistan through Secretary
Law and Parliamentary Affairs Islamabad v. Mohammad Ishaque and another (PLD 1983
SC 273) Shariat Bench). Amongst others under Article 31: of the Constitution, provision
for Islamic way of life, is an obligation of the State. Same is the position under the
Objectives Resolution. Above all even the enactment of a law which is against the
injunctions of Islam, has been prohibited by the 2nd Part of sub-clause (1) of Article 227
of the Constitution. It is not the case of the petitioner either, that a right which is
guaranteed by the Constitution as a fundamental right or otherwise, or protected by it or
by any other law, would not be enforcible through a civil suit under Section 9; provided
of course, other conditions are satisfied. Thus the implied bar intended to be canvassed
would be against all that has been said above. Lastly if an express bar cannot be enacted
by the legislature with regard to subject of discussion, the Courts in Pakistan have no
jurisdiction to import an implied bar from another jurisprudence. It is accordingly held
that the suit was competent.
Regarding the right of good reputation in Islam, suffice it for the purpose of this
discussion, further to refer to the Last Khutaba of the Prophet (P.B.U.H.); wherein it has
been given equal place with the right to life and property. As to reputation in the context
of torts there are many injunctions. Reference may be K made only to those cited in the
recent book "Khuthat-i-Rasul" by Mr. Mohammad Mian Siddiqui of the Islamic Research
Institute of the International Islamic University Islamabad in Chapter 26 at page 155 et
seq. There is useful material also in the "Islamic Law of Torts" by Dr. Liaqat Ali Khan
Niazi (Chapters 9, 10 and 17).
Only one short question raised by the learned counsel, remains to be dealt with. It has
been elaborately stated in Para (iii) of the grounds of the petition thus:--
"That admittedly, Mst. Farman Bi the respondent herein was married and admittedly her
husband died after only a year of married life and undoubtedly he gave his life for the
country. If a widow remarries it is no slur on her former husband albeit her husband laid
down his life for the country. Unlike Hindus who followed the law of Heathens and
marriage by a widow was almost a crime; the British never recognized it and the Indian
Government passed laws allowing wedding of the widows. It is no slur on a widow either
to go in for a second marriage. The parties were so closely related that allegation of a
marriage can never be considered defamatory."
The brief answer to the argument in general would be that acts and statements which
perse are not defamatory, may become so in the context thereof. This is exactly the
position here. It will also depend upon the circumstances of each case. In this case we are
satisfied that on account of the bad blood between the parties the false claim of marriage
was made against the, respondent. It being malicious in every respect has already been
dealt with.
A strong further possibility which has not been dealt with, by the learned Courts below,
also cannot be excluded. It borders on the pre-Islamic practice of grabbing widows'
property and person, by the close relation by putting a claim on her in a ritual without her
consent. The Quran and the Sunnah prohibited it;
See Fiqah-ul-Quran recently published by Adara-i-Fikre Islami Karachi, Volume 111,
2nd publication 1986 under the sub-heading Page {Bewa ke sath husne suluk} 471. It
was a pagan practice, Such like un-Islamic practices have been introduced and adopted
due to our contact in the Sub-continent with alien culture; the effects of which have also
been discussed in another recent judgment; where attempt was made by real brothers to
grab the property obtained in inheritance by a sister, on the ground of "relinquishment"-a
practice in the Hindu Law and custom developed on account thereof. See C.P-133-R of
1989 decided on 15th May, 1989. reported as PLD 1990 S C 1.
It is possible that in this case also the petitioner in addition to the malicious action
intended and attempted to blackmail the respondent and her family to surrender their
gains in other items of litigation, and she in particular to surrender her person and
property as well this she bad obtained as benefits from Government on account of the
death of her husband in East Pakistan in the 1971 War with India.
In the light of the foregoing discussion this petition is dismissed and leave to appeal is
refused.
M.B.A./M-1110/S Leave refused.