PLJ 1990 Lahore 572
Present: FAZAL KARIM, J S. GHAYYUR HUSSAIN SHAH-Appellant
GHARIB ALAM (deceased) etc. --Respondents.
R.S A. No. 39 of 1966, accepted on 20.6.1990
(i) Constitution of Pakistan, 1973-
Arts. 4&14~Malicious Prosecution~Damages~Suit for-Whether foundation of action for damages for malicious prosecution lies in abuse of process of court or in abuse of process of law—Question of-Article 4 of Constitution forbids any action detrimental to life, liberty, body, reputation or property of any person except in accordance with law-It is no more necessary to hedge in an action for damages for malicious prosecution by condition that action was an abuse of "process of court"~Held: Foundation of action for damages for malicious prosecution lies, not in abuse of process of court, but in abuse ofprocess of law-Held further: Proceedings before police afford a stronger ground for an action for malicious prosecution than proceedings in a court oflaw. [P.581]C
(ii) Dispensation of Justice-
—Malicious prosecution-Damages-Suit for-Whether it is necessary to follow decisions of Privy Council-Question of-Historical continuity is neither a legal duty nor a necessity nor should respect for decisions of Privy Council degenerate into mechanical slavery-Held: We can take English common law from where it left off in 1947 and develope and modify it to bring it into accord with genius of our own law. [P.580JB
(iii) Malicious Prosecution—
—Malicious prosecution-Damages-Suit for-Whether damages can be awarded-Question of~Held: If a plaintiff is able to prove that proceedings against him were malicious, without reasonable and probable cause, that they terminated in his favour and that proceedings had resulted in damage to his person, property or reputation, then he should recover damages whether proceedings be before a civil court, before police or before a criminal court-Held further: All these ingredients were fully established in this case and decrees of trial court were wrongly set aside by lower appellate court.
(iv) Malicious Prosecution-
—-Malicious prosccution-Damages-Suit for--Whethcr suits and appeals had abated on death of tort fcascr-Queslion of--Argumcnt that maxim "personal actions die with person" is applicable-It is common knowledge that if a man is subjected to false and malicious prosecution, object is to persecute and harass not only that man but his dependents and family members also-Resulting damage is not confined to that man, but entire family suffers-Held: Maxim is repugnant to spirit and principles of Islam—Held further: Hoary fallacy fromwhich common law suffers, must give way to one of first principles of Islamic law that a dead man's heirs are, in appropriate cases, entitled to be compensated-Appeals accepted. fPp.581,583&584]F,G,H,.J£K
AIR 1939 Lahore 492 and AIR 1937 Nagpur 216 not followed,
(v) Malicious Prosecution-
—Malicious proscculion--Damages-Suit for-Whether damages can be awarded—Question of—Word "prosecution" in context of malicious prosecution is not to be understood in technical sense which it bears in criminal law-Held: Plaintiff is entitlled to damages if he is able to prove thai proceedings, whether civil or criminal, were malicious and were instituted without reasonable and probable cause and that he suffered damage. [P.578JA
AIR 1944 Privy Council 1, AIR 1947 Privy Council 108, PLD 1964 Dacca 111, AIR 1926 Privy Council 46, 1901 A.C. 495 discussed.
5/i. Abdur Rashccd, Advocate for Appellant. Pir Anwar Rchinan, Advocate for Respondents. Date of hearing: 5.5.1990.
This will dispose of R.S.A. No.39 of 1966 by Syed Ghayyur Hussain Shah, plaintiff, and R.SA. No.40 of 1966 by Muhammad Shafique, plaintiff. The facts giving rise to them are as follows.
On 1.9.1961. Alamgir, defendant, lodged a first information report at P.S. Sadar Sheikhupura, alleging that the accused persons, Syed Ghayyur Hussain Shah (plaintiff) Raja Khush Bakhtur Rehman and Muhammad Shafique (plaintiff) had, on 31.8.1961, in pursuance of a conspiracy to murder Muhammad Hanif, defendant, abducted him from a point at Lahore Sheikhupura road. The case was investigated and the allegations were found false and baseless. The police, therefore, recommended for the cancellation of the case and the FIR was cancelled by the Ilaqa Magistrate's order dated 18.4.1962.-
Two suits for damages for malicious prosecution were brought; one by Syed Ghayyur Hussain Shah and the other by Muhammad Shafique. According to the plaintiffs, the truth of the matter was that no such incident of abduction had taken place; that in lodging the false report and in proceeding against them, the defendants Gharib Alam, Alamgir and Muhammad Hanif, now respondents, were actuated by malice and enmity and that as a result of this false prosecution, the plaintiffs had suffered humiliation and a set back to their reputation and fair fame. The plaintiffs belonged to a respectable family; the father of Syed Ghayyur Hussain Shah, plaintiff, had been an honorary life Magistrate and as a result of this false prosecution, Muhammad Shafiquc, plaintiff, had suffered so much in good fame that his engagement with his would be wife was broken.
The suits were contested by Gharib Alam and Muhammad Hanif, defendants; Alamgir, defendant, was exparte. In his written statement, Gharib Alam, defendant, merely denied the allegation that the case against the plaintiffs and their co-accused was a false case. Muhammad Hanif, defendant, admitted that the case was false and that it was the result of investigation of Gharib Alam,defendant. He, however, denied that he had taken part in the prosecution of the plaintiffs and their co-accused.
On the parties pleadings, the learned Civil Judge formulated the following issues:-
Whether defendant Nos.l to 3 lodged a false and malicious prosecution against the plaintiff and then prosecuted him?
Whether the reputation of the plaintiff suffered damage on account of the said false and malicious prosecution and he sustained mental and financial loss?
Whether the plaintiff was entitled to any damage? If so, what amount?
By his elaborate and well considered judgments, the learned Civil Judge found issue No.l in the plaintiffs' favour; in his opinion, "the prosecution had been lodged with absolutely no cause whatsoever let alone its being reasonable or probable. This is not the case of making a mountain out of a mole but is an example of a mountain out of nothing." As to issue No.2, the learned Civil Judge held that there was conclusive and cogent proof "that the plaintiff and his companions had not only incurred expenses to get themselves rid off a false charge inflicted on them maliciously by defendant No.l (Gharib Alam) but also suffered heavy monetary set back being practically unable to attend to his personal business on account of his continuous absence from his place and his mental shake up". It was clear to the earned Civil Judge that the plaintiff and his companions had "actually suffered physically, socially, financially, mentally and sychologically". He, therefore, held the defendants, Gharib Alam and Alamgir,
liable to pay Rs.5000/- as damages "jointly and severally" in each suit.
liable to pay Rs.5000/- as damages "jointly and severally" in each suit.
Gharib Alam, defendant, appealed. Before the learned Additional District Judge it was argued that "even if the plaintiffs' case is held to be correct, no decree for damages for malicious prosecution could be passed against him" because the plaintiff had not been arrested and had not been summoned by a Court. The learned Additional District Judge referred to certain precedent cases, including Raja Braja Sunder Deb and others Vs. Bamdeb Das alias Patlanaik and others (AIR 1944 Privy Council 1) and held:
"A perusal of these authorities shows that it has been held in very clear terms that where a report is made to the police in consequence of which no prosecution is lodged in a Court by the police, it cannot be said that there was malicious prosecution."
For the opposite view, Muhammad Amin Vs Jogendra Kumar Bannetjee and f.ihen (AIR 1947 Privy Council 108) and Nabir Shaha Vs. Shamsuddin and others PLD 1964 Dacca 111) were cited before the learned Additional District Judge ind he observed that in those cases, the accused were discharged after being summoned in Court; in any case, so observed the learned Additional District Judge, "It has been clearly laid down that if the matter does not reach the Court and the proceedings are dropped after investigation only, it cannot be said to be a case of malicious prosecution at the hands of the maker of the report". The learned Additional District Judge was, therefore, unable to "subscribe to the view of the learned trial Judge that from the evidence on record a charge of malicious prosecution has been made out against the appellant".
The learned Additional District Judge then proceeded to consider the question whether "the present decree can be maintained as the decree for damages for slander and libel" and held that "there can be no doubt that the imputation of abduction with the intention to murder makes the appellant liable for damages for slander and libel". The learned Additional District Judge was however of the view that the suit, if it was treated to be a suit for slander and libel, was barred by time. In his view. Articles 24 and 25 of the Second Schedule to the Limitation Act applied to such a suit, under those Articles, the period of limitation was one year from the date of libel and slander and as in the present case, the first information report was made on 1.9.1961 and the suit was instituted on 7.1.1963, it was "more than one year after the imputation".
In short, the learned Additional District Judge was of the opinion that on the facts of the case, "no decree can be passed in favour of the plaintiff on the ground of malicious prosecution and that the present decree cannot be maintained as a decree for damages on ground of slander and libel because of the bar of limitation".
It ought to be mentioned here that but for this view of the law, the learned Additional District Judge would have dismissed the appeals and maintained the decree of the learned Civil Judge, for as regards the findings of fact that the plaintiffs had suffered damage as a result of the proceedings against them, the learned Additional District Judge was in agreement with the learned Civil Judge that the circumstances of the case "go to show that a false allegation was made against the plaintiffs and others about abduction of Muhammad Hanif at their hands" and that the plaintiffs had suffered "mentally and ill-repute" by the false allegations against them.
The first question that must be asked is whether the view of the law taken by the learned Additional District Judge is supportable by the precedent cases. For that purpose, I will be content to refer to the principles to be gleaned from three Privy Council cases, namely, Bilbhaddar Singh and another Vs. Badri Shah and another (AIR 1926 Privy Council 46), Raja Baraja Deb and others Vs. Bamdeb Das alias Pattanaik and others (AIR 1944 Privey Council 1) and Muhammad Amin \. Jogcndra Kumar Bannerjee and others (AIR 1947 Privy Council 108). Before considering the rationes decidendi of these cases it is well to recall to mind two observations of a general character made by Lord Halsbury in Quinn Vs.Leathern (1901 A.C. 495, 506):
"One is to repeal what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it."
12. In the first case (AIR 1926 Privy Council 46) the appellants before the Privy Council had been accused of the murder of one Sher Bakhsh. As a result of an inquiry, a Magistrate issued warrants for their arrest. The warrants could not be executed but when the case was taken up on the next day, the Magistrate discharged the appellants who had without the execution of the warrants of arrest voluntarily appeared. When the case reached the Court of the District Judge, some doubt arose whether this discharge was right and the summonses were issued to the appellants to appear before the District Judge. The District Judge again discharged the appellants "considering that there was no sufficient evidence to warrant their being put on their trial". These facts were held to be sufficient for founding an action for malicious prosecution; it was held:
"In any country, where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble is caused, an action will lie."
But as a result of the appraisement of the evidence, the Privy Council found that "there is not sufficient certainty in this doubtful matter to find that the appellants have discharged the heavy onus laid upon them", namely, that the story implicating the appellants had been invented.
In the second case (AIR 1944 Privy Council 1), the question was whether the plaintiff Raja of Aul had a cause of action for malicious prosecution. As regards him, the first information report suggested that he was to a large extent responsible for the purchase of a girl for sexual intercourse; as a result of this information, in the charge-sheet prepared by the police, the Raja was noted as an accused not sent up for trial and in fact he was never sent up. No criminal proceedings were ever taken against him. It was, in these circumstances, held that he had no cause of action.
In the third case (AIR 1947 Privy Council 108), the facts were follows. An agreement was entered into between the appellant and respondent No.l whereby the appellant had agreed to sell certain properly to a company which was formed by respondent No.l. The appellant alleged that subsequently, an oral agreement was made between himself and respondent No.l containing certain provisionswhich went beyond the wrilten agreement. Respondent No.3 company was incorporated in order to carry out the purchase from the appellant and certain property was transferred by the appellant to the company. Subsequently, the appellant took the view ihat the terms of the oral agreement which he had made with respondent No.l had not been carried out and accordingly, he refused to transfer the rest of the property included in the sale to the company. It was upon these facts that respondent No.2 acting on behalf of himself and respondents No.l and 3 filed a complaint against the appellant in the Court of the Magistrate under Section 190 of the Cr.P.C; it was said that as the appellant had refused to deliver the remainder of the properties agreed to be sold, he had committed an offence under Section 420 of the Penal Code or Section 406 of that Code. The charge was duly registered under Section 420 of the Penal Code. The Magistrate having taken cogni/ancc of the complaint, forwarded it to one Mr.Kukarji for inquiry and report under Section 202 of the Cr.P.C. The Magistrate gave the appellant a notice of the complaint against him and informed him that the inquiry would he held on certain dates. Later, the inquiry was entrusted to one Mr.Peenraji; he too did not hold the inquiry. Thereupon the Magistrate himself held the inquiry in open Court. Notice of the inquiry was given to the appellant who attended with counsel. The Magistrate, after inquiry, concluded that no case of cheating or for the matter of that no criminal case of any nature was made out by the complainant and he dismissed the complaint under Section 203 of the Cr.P.C. After a survey of a large body of case law, the Privy Council held:
The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings institute against him were malicious, without reasonable and probable cause, that they terminated inhis favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt C.J. in 1 It. Raym. 374 that damages might be claimed in such an action under three heads, (1) damage to the person (2) damage to property, and (3) damage to reputation, and that rule has prevailed ever since. That the word 'prosecution' in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company: (1888) 11 Q.B.D. 674. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowcn LJ. in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him, and he will beindemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged docs necessarily and naturally involve damage and in such a case damage to reputation will be presumed.
From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion, and no damage to the plaintiff results. But in this case the Magistrate took cognisance of the complaint, examined the complaintant on oath, held an inquiry in open Court under S.202 which the plaintiff attended, and, at which as the learned Judge has found, he incurred costs in defending himself. The plaint alleged the institution of criminal proceedings of a character necessarily involving damage to reputation and gave particulars of special damage alleged to have been suffered by the plaintiff. Their Lordships think that the action was well founded, and on the findings at the trial the plaintiff is entitled to judgment."
It will be seen that in none of these cases was there prosecution in the technical sense. In the first case (AIR 1926 Privy Council 46) all that happened was that the appellants were summoned by the Magistrate through warrants of arrest and by the District Judge by summonses but the appellants had not been arrested; nor had they been proceeded against for the charge of the murder of Shcr Bakhsh. In the second case there was only a suggestion in the first information report that Raja of Aul was responsible for the purchase of a girl for sexual intercourse; no proceedings of any kind cither before the Police or any Court appear to have been held against him. In the third case (AIR 1947 Privy Council 108) the complaint had not gone beyond the stage of inquiry under Section 202 of the Cr.P.C. Yet, in the first as also in the third case the personresponsible for the proceedings against the plaintiff would have been held liable for damages for malicious prosecution but for the fact that the evidence adduced was not sufficient to found the actions. As has been observed above, the second case (AIR 1944 Privy Council 1) upon which the learned Additional District Judge had so heavily relied was a case in which there had been no proceedings whatever against the Raja of Aul. That case must, therefore, be held to be an authority for its own facts,
The principles deducible from these cases, if I may venture to summarise them, are that the word "prosecution" in the context of malicious prosecution is not to be understood in the technical sense which it bears in the criminal law; that A the plaintiff is entitled to damages, if he is able to prove that the proceedings, whether civil or criminal, were malicious and were instituted without reasonable and probable cause and that he has suffered damage. As regards criminal proceedings, involving scandal to reputation or possible loss of life or liberty to the plaintiff, they do necessarily and naturally involve damage and in such cases, damage to reputation will be presumed.
17. The real test, therefore, is not whether the label of prosecution applies to such proceedings; it is whether they "have reached a stage at which damage to the plaintiff results". As Lord Reid said in H.West & Sons Ltd. Vs. Shepherd (1964 A.C. 326, 342). "damages are awarded not to punish the wrong-doer but to compensate the man injured".
IS. The true rule, if I may say so with great respect, which I would respectfully adopt, was laid down in Nabcr Shaha Vs. Shain-sn-ddin and others (PLD 1964 Dacca 11). The facts of that case have a close similarity to the facts of this case. There was a burglary in the house of Shams-ud-Din, defendant; the lalter's cousin, Jalil-ul-Haq lodged an FIR, in which he named the plaintiff as the person suspected to have some sort of connection with the theft and suspected thieves. On the basis of that first information report, investigation was started and the house was searched by the Investigating Officer. Ultimately, the police submitted a final report under Section 173 of the Cr.P.C. and the FIR was cancelled. During the investigation, the plaintiff being apprehensive of his arrest voluntarily surrendered and was allowed bail. On behalf of the plaintiff, search and defamation were relied upon as grounds for damages and the question was whether "in a suit for damages for malicious prosecution, the alleged defamation and defamatory statements which, according to the plaintiff, lowered him down in the estimation of the public, can be the basis for damages for defamation independently of the malicious prosecution of (?) the purpose of determining the amouni of damage. It was found that "whatever damages the plaintiff claimed were on account of false prosecution which impaired his reputation by defaming him in the eyes of the public and there is no separale cause of defamation. If the plaintiff fails in establishing his ease of malicious prosecution without reasonable and probable cause, we do not think that he can claim, in this suit, compensation for defamation apart from malicious prosecution which was stated as a cause for damages for malicious prosecution." Regarding the question whether the information to the police which did not culiminate in or reach the stage of prosecution could be called a prosecution for the purpose of an action for dam.iucs for malicious prosecution, it was held:
"Though the information to the police before it reached the stage of going before the Court cannot be technically called a prosecution within the meaning of the Code of Criminal Procedure, but for the purpose of malicious prosecution any proceeding akin to prosecution is enough. If it is proved that there is no reasonable and probable cause for such aproceeding against the plaintiff and if it is malicious, then certainly the person injured is entitled to the compensation".
19. But even if I am wrong in thinking that the Privy Council cases referred to above lend themselves to the view that the proceedings in this case amounted to milicious prosecution. I should take this opportunity to re-examine the law so that it is modified "to bring it into closer accord with the changed conditions in which it falls to be applied today". In so doing, I feel encouraged by the guidance to be gained from the decision in a recent case namely, Muhammad Akram Vs. Fannan Bi of my learned brother Gul Zarin Kiyani J (reported as PLD 1989 Lahore 200) and affirmed by the Supreme Court (reported as PLD 1990 S.C.28).
20. First, a word about the English common law, for it was said in Muhammad Amin Vs. Jogcndar Kumar Banncrjcc (AIR 1947 P.C. 108) that the action for damages lor malicious prosecution is part of that law.
21. The English common law is the national law of England. It has developed on a case to case basis, gradually, in response to the pressures of particular situations, the teaching of experience, the guidance of ideal and general principles and the influences of legislation. (Carnelius C.J. in Abul Ala Maudoodi case - PLD 1964 S.C. 673). Before independence, the English common law was applied in India, first because the Government of India Act, 1935, expressly provided that the law declared by any judgment of the Privy Council was binding on and should be followed by all Courts in British India, and secondly in the guise of the principle of "equity, justice and good conscience". Though, the Privy Council decisions are still held entitled to great respect, yet, both these bases have long ceased to be valid in Pakistan. We are governed by a written Constitution; and have an ideology based on the religion of Islam. Common law of England is not, and cannot be, the common law or the national law of Pakistan. It was held by the Supreme Court in Muhammad Akrain Vs. Fannan Bi that a suit for malicious prosecution is a suit of a civil nature within the meaning of Section 9 of the Code of Civil Procedure, and that makes resort to the common law of England unnecessary. As regards the question whether the rule of common law of England as laid down in Muhammad Amin's case can be pressed into service as an implied bar, it was held:
"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 Islam common law, is not now possible under the Pakistan Constitutional legal set up".
22. The common law of any country must almost invariably march in step with common sense; it must accornodatc, to borrow that classic phrase of Holmes, to "the felt necessities of the times". For. it is a manifestation of an eternal struggle between constancy and change; a struggle between past reason and present needs. As was said in a recent English case, namely, MacShannon Vs. Rockwarc Ltd. (1978)1 All ER 625 at 629):
"The progress of the common law is gradual. It is undertaken step by step as what has been stated in previous preceedent to be the law is re-examined and modified so as to bring it into closer accord with the changed conditions in which it falls to be applied today".
Thus, historical continuity is neither a legal duty nor a necessity for us; nor should respect for the decisions of the Privy Council degenerate into mechanical slavery. We can, therefore, take the English common law from where it left off in 1947 and devclope and modify it so as to "bring it into closer accord with the changed conditions in which it falls to be applied today", or to put it in another way, to bring it into accord with the genius of our own law.
The genius of our law is enshrined in the Constitution and so that there is no doubt about it the Constitution is written. The preamble of the Constitution declares it to be the will of the people of Pakistan to establish an order wherein, among others, the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed, and the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. By Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 14 of the Constitution guarantees the dignity of man, and, subject to law, the privacy of home.
25. Good reputation or fair name is a basic right of a citizen in Islam. Muhammad Akram Vs. Fannan Bi (PLD 1990 S.C.28,39).
As Article 4 of the Constitution forbids any action detrimental to the life, liberty, body, reputation or property of any person to be taken except in accordance with law, it should follow logically that if any such action is taken and it is not in accordance with law, damage will be presumed. It is plain that a person may as well suffer by an action detrimental to his life, liberty, body, reputation or property which is not in accordance with law in proceedings in Court as in proceedings before an executive or administrative authority. In the context of the Constitution, therefore, it is no more necessary to hedge in an action for damages for malicious prosecution by the condition that the action was an abuse of the "process of the Court". It will, in my opinion, be more in consonance with the genius of the Constitution, Articles 4 and 14 in particular, to say that the foundation of the action for damages for malicious prosecution lies, not in the abuse of the process of the Court, but in the abuse of the process of law. For, if webear in mind the stark realities of life, it should appear plainly that proceedings before the police afford a stronger ground for an action for malicious prosecution than proceedings in a Court of law, for it (is) an unfortunate fact that, as things are, human dignity suffers or is likely to suffer more at the hands of the police than in a Court of Law.
I would hold, therefore, that if a plaintiff is able to prove that he was proceeded against by the defendant, that the proceedings were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible) and that the proceedings had resulted in damage to his person, property or reputation, then he should recover damages, whether the proceedings be before a civil Court, before the police or before a criminal Court.
It has been seen above that all these ingredients were fully established in this case. In the result, I would hold that the decrees of the learned Civil Judge were wrongly set aside by the learned Additional District Judge.
The tort feaser, Gharib 'Alam has died, and this raises the question whether the suits as well as the appeals have abated. It is argued that the maxim that applies in such cases is that personal actions die with the person. It will in this behalf be sufficient to refer to Mahant Saliq Ram Vs. Charam Dass and another (AIR 1939 Lahore 492), in which the legal position was summarised as follows:
"It is no doubt true that the right to get compensation for malicious prosecution is personal to the person wronged, and to such a right the maxim aclio personalis motititr cum persona, (a personal right of action dies with the person) fully applies. If therefore such person dies before suing lhe wrong doer, his heirs, executors or. administrator cannot, after his death, maintain an action for the same relief against the wrong doer^ In such a case clearly there is a discharge of the tort by the death of theperson wronged, and the wrong doer is released from all liability for his tortious act. It is equally clear that if the injured person had brought a suit in his life-time, but had died before a decree had been passed in his favour, the suit would have abated and his legal representatives could not have continued the suit after his death, for the 'right to sue' in such a case being personal to the deceased did not 'survive' (0.22.R.I, Civil P.C.). The position however is different when the suit had been decided in the plaintiffs lifetime and a decree passed in his favour granting him compensation. On the passing of the decree there is no longer an action pcrsonalis in existence; it has passed into a judgment and become a mailer of record (transit in rein judicatum). The original personal claim has merged in the decree of the Court and as such its character has entirely changed. The quondam plaintiff, as the decree-holder, has acquired the right to realize the amount decreed from the judgment- debtor, and this is a right of an entirely diffeent character. He may enforce it himself by process of law, or (unlike the original claim) he may assign it to a third party, who can execute the decree. Further the decree itself (also unlike the original claim) is ILTolc to attachment by a creditor of the decree-holder. It has to all intents and purposes, become a part of the 'property' of the decree-holder and, on his death, it devolves, as a part of his estate, on his heirs, executors or administrators, and they can execute it in the same manner as he would have done, if alive."
30. Learned counsel for the respondents also strongly relied upon Afaniiwnlala Balim/nlala v. Mst. Chattibai & another (AIR 1931 Nagpur 216) for his contention that as the decree in the plaintiffs favour was set aside by the First Appellate Court, the death of Gharib Alam has resulted in the abatement of this appeal against him. In that case, the plaintiff was awarded a decree for Rs.400/-. On appeal, the decree was reversed and the plaintiffs suit was dismissed. The plaintiff preferred a second appeal when the defendant died. The defendant's egalrepresentatives raised the objection that the right to sue did not survive and that the appeal had abated. It was held that "it is clear law that an action for defamation is a personal one, and if the defendant had died during the course of the original trial the case would undoubtedly have abated ihc matter is undoubtedly transit in rein judicatam, but the first decree has been wiped out by the appellate decree which grants no relief to the present appellant and imposed no liability on him except for payment of costs". It was also held that the plaintiff in such a case was practically in the position in which he was before he started the litigation so far as his claim was concerned; "in such a case there seems no valid reason why the litigation should not rest".
31. Now there are, in my opinion, a number of reasons for holding that the appeals have not abated. The first is that the maxim that personal actions die withthe person is a Roman maxim of doubtful origin. As has been said by that great author, Sir Frederick Pollock, in his book "The Genius of the Common Law" themaxim has no authority to support it. This is what he has to say on the subject:
"Mao. unluckily some one got hold of a supposed Roman maxim, for vkch there is really no authority, that 'personal actions die with the person'. By further ill luck an opinion for which classical Roman warrant docs exist came to reinforce this pretended authority, the opinion that a free man's life is incapable of pecuniary valuation. It is a fine ethicalobservation, but, I venture to think, inappropriate in the field of legal justice. In the result, the Common Law was saddled with the rule that the death of a human being cannot give rise to a civil cause of action, one of the most foolish rules, if I dare say so, that have ever been adopted by the Courts of a civilixed country; and we have to learn for law that, except for statutory exceptions, and apart from criminal liability, a man wounds or disables another at his peril, but may kill him outright with impunity".
I cannot, therefore, see any reason, and none was suggested, why we should import such a maxim into our law, particularly when instead of advancing the cause of justice, it has the effect of depriving the legal heirs of a plaintiff of their right to recover damages. It is common knowledge that if a man is subjected to false and malicious prosecution, the object is to persecute and harass not only that man but his dependants and family members also. Thus, the resulting damage is nol confined to ihat man; the entire family suffers. 1 cannot, therefore, agree in thinking that the action is personal to the plaintiff and the defendant and it dies with them.
One of (be objects of actions for damages for malicious prosecution is "to discourage the perversion of the machinery of justice for an improper purpose" and it would be scandalous to say that though the entire family has suffered humiliation, mental torture as well as financially, yet the death of the plaintiff or the defendant puts an end to the action.
There is then the well Icnpwn maxim, an act of the Court shall prejudice no man, which is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. Herbert Broom, in his well known book on "Legal Maxims", says:
"In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the parly ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and, therefore, if one party to an action dies during acuria advisari vull, judgment may be entered mine pro lunc, for the delay is the act of the Court, for which neither party should suffer".This maxim of justice and good sense applies to the facts of this case in this way that a decree for damages had been passed in Ihe plaintiffs favour, and if the learned Additional District Judge had not proccdcd on a wrong view of the law, the decree would have been maintained. This appeal was instituted as far back as May, 1966. Gharib Alam, defendant, died recently and if this appeal had beendecided within a reasonable time of its institution the situation with which we are confronted as a result of the death of Gharib Alam, would not have arisen. It is obvious thai the appellants are, in no way, to blame for the delay in the decision of these appeals and it will, therefore, be wholly unjust to punish them for something far which they are nol responsible at all. As has been seen above, it was not on the merits of the case that the learned Additional District Judge reversed the decree of the learned Civil Judge. He would have dismissed Gharib Atom's appeals, but
for the wrong view of the law, which led him to hold that the facts of the case did not amount to malicious prosecution.
35. The last and the most important reason is that the so-called maxim that personal actions die with the person is repugnant to the spirit and the common- ense principles underlying the law of Islam. The rule of the English common law that the death of a human being cannot give rise to a civil cause of action is based upon the principle that a dead-man cannot be compensated. What it fails to take into account is that if the dead-man cannot be compensated, his dependants, who had suffered with him, can be compensated. In sharp contrast to this view, Islam allows the victim and his heirs, even in cases of serious crimes, to accept monetary or other compensation from the criminal and the Slate "must to its best assist them in achieving their object and in appropriately exercising their rights". (Per Shfi-ur-Rehman J in Federation of Pakistan v. Gul Hassan Klwn--PLD 1989 S.C.633, 684). The hoary fallacy from which the common law suffers must, therefore, give way to one of the first principles of the Islamic Law that a dead-man's heirs are, in appropriate case, entitled to be compensated.
36. For these reasons, the appeals are accepted, the judgments and decrees of the learned Additional District Judge dated 21.9.1965 are set aside and thejudgments and decrees of the learned Civil Judge dated 25.5.1964 are restored. In the circumstances of the case, and in view of the time that has elapsed since the filing of these appeals, the parties are left to bear their own costs.
(MBC) Appeals accepted.