2022 MLD 1
O.XLI, R.27(b)---Criminal Procedure Code (V of 1898), S. 173---Suit for recovery of damages---Malicious prosecution---Discharge in police report---Malice, proof of---On the complaint of petitioner/defendant, criminal case was registered against respondent/plaintiff---After investigation, respondent/plaintiff was discharged from the offence--- Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondent/plaintiff---Validity---Lower Appellate Court was drawing presumption of 'malice' from report of police officer filed under S.173, Cr.P.C. without even examining maker of the report to unearth as to the reason of discharge and that how investigating officer found respondent/plaintiff innocent during 'face to face' discussion (??????? ?????)---Important for respondent/plaintiff to provide possible evidence to prove entire ingredients of 'malicious prosecution' and it was duty of Trial Court to secure all possible evidence as to the elements of 'malicious prosecution' before reaching to finding and allowing damages---Finding of 'malice' on the basis of report under S.173, Cr.P.C., without examining maker of statement/report was unsafe---High Court set aside judgment and decree passed by Lower Appellate Court and remanded the matter for decision afresh after procuring evidence of concerned police officials and careful examination as to the ingredients of 'malicious prosecution'---Revision was allowed in circumstances.
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