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Official Citation: 2025 SHC 450
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-02-21
Parties: Anwar Majid and others vs Emirates Bank International PJSC (Formerly Union Bank of Middle East Ltd) & others
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-02-21, officially reported as 2025 SHC 450. In this matter between Anwar Majid and others and Emirates Bank International PJSC (Formerly Union Bank of Middle East Ltd) & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025SHC450
Court Name: Sindh High Court Judge(s): Muhammad Jaffer Raza Title:Anwar Majid and others vs Emirates Bank International PJSC (Formerly
Union Bank of Middle East Ltd) & others Case No.:Suit No. 118 of 1987, Suit No. 119 of 1987, Suit No. 593 of 1987, Suit No. 592 of 1987 Date of Judgment:2025-02-21 Reported As: 2025 SHC 450 Result: Order Accordingly Judgment
JUDGM ENT M UHAM M AD JAFFER RAZA - J : The tort of Malicious Prosecution in the words of Justice G.P. Singh1 "balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. 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." 2. It is this intricate balance on which the aforementioned four suits shall be adjudicated through this common judgment. Given the complex nature of the Suits, it shall be convenient for the judgment to be structured as follows: - A. Common facts in all four suits. B. Facts in each specific case and nature of the criminal case. C. Test for malicious prosecution and relevant judgments. D. Issues and finding thereon. E. Conclusion. COMMON FACTS IN ALL FOUR SUITS 3. The Plaintiff filed the above-mentioned suits to recover damages for malicious prosecution against him by his former employer, the Defendant No.1. It is contended by the Plaintiff that the Defendant Bank maliciously filed four direct criminal complaints against the Plaintiff in The Special
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Courts of Sindh (Banks) ("Criminal Court") at Karachi without any reasonable or probable cause. According to the Plaintiff, the manner in which the complaints were filed demonstrated the malafide intent of the Defendants causing irreparable damage to the otherwise pristine reputation of the Plaintiff. 4. It is admitted between the parties that on 01.04.1978, the Plaintiff was appointed as the General Manager (Planning & Development) in the Head Office of Dubai Bank Ltd. and subsequently was also appointed as the General Manager Designate for Pakistan. Through a merger on or about 05.04.1985 the entire
{{FOOT NOTE}} 1 The Law of Torts, Ratanlal & Dhirajlal, 23rd edition, 2002. Page 285.
control of Dubai Bank Ltd. was taken over by the Union Bank of the Middle East Ltd. With this change, the Plaintiff's position as the Executive in Pakistan was relegated to that of a subordinate to the Defendant No.9. The Plaintiff protested this unilateral and adverse change in his position through various letters. 5. It is the case of the Plaintiff, that in an attempt to avoid the payment of the rightful dues owed by the Bank to the Plaintiff, it began a campaign to defame and tarnish his reputation. Various modes and methods were adopted for this purpose however the same are not germane to the issue at hand. What is relevant is that the Plaintiff was informed about the criminal proceedings instituted by the Defendants against him on 01.01.1986 through a letter from the Defendants advocate. All four complaints were filed before the Criminal Court under Offences in Respect of Banks (Special Courts) Ordinance, 1984 ("Ordinance"). Without delineating into the merits of these complaints at this juncture, it is pertinent to highlight the contention of the Plaintiff in reference to Section 5 of the Ordinance. The Plaintiff contends that the proceedings were instituted against the Plaintiff under the Ordinance as the legislation required furnishing of bail surety of an amount not amounting to less than twice the amount specified with respect to the offense alleged. FACTS IN EACH SPECIFIC CASE AND NATURE OF THE CRIMINAL CASE. i. Suit No. 118 of 1987 Complaint No.4/1986 dated 26.12.1985 was filed by the Defendant No. 1 through Defendant No.11 against the Plaintiff under Section 5 of the Ordinance for offences under Section 408 and 477-A P.P.C. The criminal complaint alleged that the Plaintiff being the General Manager of Union Bank, misappropriated a painting owned by the Bank by getting it incorrectly evaluated and then purchasing it when it was an asset of the Bank. No charge was framed, and the complaint was disposed of vide order dated 13.01.1986. The Criminal Court dismissed the Complaint, without issuing warrants and/or summons, on the basis that the General Manager has a right to dispose of the Bank's tangible assets and there was nothing on record to show that he sold it for less than the market price. No further Appeal was filed by the Defendants against the Acquittal order of the Special Court, even though no opportunity was given to the Defendants to present and prove their claim. The entire process outlined above culminated in a period of 18 days. In light of the above facts the Plaintiff filed the instant suit for recovery of Rs.2,500,000/- as damages for malicious prosecution. ii. Suit No. 119 of 1987 Complaint No.3/1986 dated 26.12.1985 was filed by the Defendant No. 1 through Defendant No. 11 under Section 5 of the Ordinance for offences under Section 408 and 477-A P.P.C. The Defendants claimed that the Plaintiff being General Manager of Union Bank, at the request of Messrs Galladari Cement (Gulf) Ltd., issued a guarantee for Rs.7,500,000/- in favor of Bankers Equity Ltd. The guarantee was secured by Foreign Currency Deposit held by the Bank in the name of A.R.E
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Galladari and brothers. The criminal complaint alleged that the Plaintiff instructed the branch manager of the Bank to transfer USD 1,540,000.00 to New York from the aforesaid Foreign Currency account of A.R.E Galladari & Brothers without the depositor's instructing the transfer or providing any alternate surety. No charge was framed, and the Plaintiff was acquitted under Section 265-K Cr.P.C vide order dated 01.02.1986. The Criminal Court held that at the time the guarantee was accepted, SBP did not allow for security to be accepted in any foreign exchange at the requests of the owner, therefore it did not constitute an offence. The entire process outlined above culminated in a period of approximately 1 month. Constitutional Petition No. D-957 of 1986 was preferred by the Defendants in the High Court of Sindh to challenge the above Order. The Hon'ble High Court dismissed the Petition vide judgment dated 21.06.1988, on the grounds of laches/delay caused by the Defendants in filing such Petition. Alternatively, on merits, the Hon'ble Court was of the view that 1.5 million was not the guarantee, and the said amount was released on the instructions of Mr. Galladhari who was the Deputy Chairman of the Bank, and the decision of the Criminal Court was upheld. The Plaintiff filed the instant suit for recovery of Rs.15,000,000/- as damages for malicious prosecution. iii. Suit No. 593 of 1987 Complaint No.2/1986 dated 26.12.1985 was also filed by the Defendant No. 1 through Defendant No.11 against the Plaintiff under Section 5(1) of the Ordinance for the offences under Section 408 and 477-A P.P.C before the Criminal Courts. The Defendants claimed that the Plaintiff being General Manager of Union Bank, in pursuance of loan facility from the Defendant No. 1 in the year 1981 deposited property documents as security which were later fraudulently withdrawn by the Plaintiff and hence, misappropriated the loan amount as well as the valuable security documents of the Defendant No. 1. The Criminal Court vide Order dated 01.01.1986 directed for registration of case under Section 420 P.P.C only and issued bailable warrants of the Plaintiff for the amount of PKR 1,450,000/-. The Plaintiff was later acquitted by the Special Court on account of benefit of doubt vide Judgment dated 31.05.1986. The Criminal Court held that the Plaintiff did not intend to defraud the Bank and had taken actions on valid and reasonable grounds. It was further held that the Plaintiff had offered to settle his loan amount against the Defendant's dues owed to him, which was not accepted and even the pay order deposited by the Plaintiff was not received by the Bank. The entire process outlined above, culminated in a period of approximately 5 months. Constitutional Petition No. D-958 of 1986 was filed by the Defendants in the High Court of Sindh to impugn the Order dated 31.05.1986. The Hon'ble High Court dismissed the Petition vide judgment dated 21.06.1988, on grounds of laches/delay caused by the Defendants in filing such Petition. The Plaintiff filed the instant for recovery of Rs.25,000,000/- as damages for malicious prosecution. iv. Suit No. 592 of 1987 Complaint No. 1 of 1986 was filed by the Defendants on 26.12.1985 before the Criminal Court through Defendant No.11 under Section 5 of the Ordinance for offences under Section 408 and 477-A P.P.C. On 01.02.1986 charge was framed against the Plaintiff. The Defendants' claim in the Complaint was that on 21.05.1984 the State Bank of Pakistan ("SBP") issued circular in which it was observed by the SBP that Banks are holding substantial stock of Prize bonds which is against the spirit of the prize bond scheme. Therefore, SBP decided that commercial banks will not be awarded any prizes against the prize bonds held by them and gave discretion to the banks to surrender all unsold Prize bonds to the SBP. The complaint alleged that instead of surrendering the prize bonds on the instructions of SBP or to sell the left-over stock immediately, the Plaintiff purchased more Prize bonds on 31.05.1984 for Rs. 99,800,000/- and hence, as a result thereof, the prize bonds were announced, the Defendant bank suffered a loss at the hands of the Plaintiff. Bailable warrants in the sum of PKR 2,500,000/- were issued against the Plaintiff. However, the Plaintiff was later acquitted by the Criminal Court vide Judgment dated 10.05.1986. The entire
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process outlined above concluded in a period of approximately 4.5 months. The Defendant Bank challenged the same before the High Court of Sindh at Karachi through CP No. D-956 of 1986. The Hon'ble High Court dismissed the Petition vide judgment dated 21.06.1988, on the grounds of laches/delay caused by the Defendants in filing such Petition. The Plaintiff has filed Suit No.592/1987 for recovery of Rs.200,000,000/- as damages for malicious prosecution. TEST FOR MALICIOUS PROSECUTION AND RELEVANT JUDGMENTS. 6. Prior to adjudicating on the issues settled by this Court, this judgment shall lay down the ingredients of the tort of malicious prosecution and apply the test settled to the facts of the respective cases. There is no dearth of judgments on the subject in the jurisdiction of Pakistan, United Kingdom and India. The most germane ones are cited hereinbelow and the relevant excerpts of selected judgements shall be reproduced to avoid repetition. a) Niaz and Others versus Abdul Sattar and others2 "3. We have given our due consideration to the contention of learned counsel of the petitioner and perused the record. It is better and appropriate to reproduce the basic elements on the basis of which suit for recovery for malicious prosecution could be accepted or rejected:-- (a) The prosecution of the plaintiff by the defendant. (b) There must be a want of reasonable and probable cause for that prosecution. (c) The defendant must have acted maliciously i.e. with a improbable motive and not to further the ends of justice. (d) The prosecution must have ended in favour of the person proceeded against. (e) It must have caused damage to the party proceeded against. 8. The maxim "The reasonable and probable cause" means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person
{{FOOT NOTE}} 2 PLD 2006 Supreme Court 432
charged was probably guilty of crime imputed. See (1881) 8 QBD 167 Hicks v. Faulkner. It is also a settled principle of law that if reasonable and probable cause is established, then question of malice becomes irrelevant as observed by Denning L.J. in Tempest v. Snowden (1952) 1 K.B. 130. H" (Emphasis added) b) Abdul Khameed versus Muhammad Shabbir and another3 "14. The rational for conferring equitable jurisdiction upon courts is rooted in the maxim "Ubi jus, ibi remedium" (where there is a right, there is a remedy). As is evident from the principles settled in relation to malicious prosecution, damages are imposed on the one who abuses the process of law and to produce consequences for another and settle past scores. Subjecting a person to malicious prosecution can interfere with the right to liberty guaranteed under Article 9, the right to dignity under Article 14 and the right to be treated in accordance with law guaranteed under Article 4 of the Constitution. Such prosecution inflicts financial hardship, litigation cost, mental anguish as well as loss of reputation on the person who is on its receiving ends having been falsely implicated in a matter. 15. In any just society such loss cannot be allowed to lie where it falls. A person who is the immediate cause of inflicting such loss and hardship on a fellow citizen ought to be held accountable for his actions. While the plaintiffs in a suit for malicious prosecution cannot recover on the basis of humiliation suffered at the hands of police or prison authorities or inmates, but he has a right to be compensated by the person whose false accusation resulted in him being
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incarcerated and made him suffer the debasing experience that comes along. The judgments mentioned above have held that even where no damages are quantified by the plaintiff a court has discretionary jurisdiction to grant damages for loss of liberty, dignity and mental anguish that is reasonably proportionate to what the plaintiff can be presumed to have suffered. 16. There can be no objective standards for estimating such injuries but an inference can be drawn that someone who has been subjected to malicious prosecution has suffered loss of time, litigation expenses, mental suffering due to being subjected to legal challenge that can produce penal consequences for him and in the case of being arrested and put behind bars, loss of his right to liberty and dignity and consequent reputational harm. The superior courts have upheld imposition of damages in case of malicious prosecution on the basis the rule of thumb which aims to quantify damages such that they are reasonably proportionate to the loss suffered. 17. The loss of a person's liberty and dignity cannot be measured in money terms. But our Constitution - in fact all human rights charters - guarantee such rights. The Constitution has established the judicature and mandated it to act as a guardian of fundamental rights. And it is an obligation of the courts to ensure that irrespective of a person's station in the society and
{{FOOT NOTE}} 3 PLD 2021 Islamabad 405
prevalent social and economic inequality, the principle of legal equality between citizens is upheld and no one is allowed to wield the law as a weapon to settle scores with another by abusing legal processes. The courts of law therefore cannot be nonchalant when seized of a matter involving malicious prosecution of one citizen at the hands of another. 20. In view of the principles and case law cited above the following can be concluded: (1). In order to establish a case of malicious prosecution the following four elements need to be established. (a) a plaintiff has been prosecuted by the defendant despite the absence of reasonable and probable cause for such prosecution; (b) the defendant acted maliciously and not to further the ends of justice; (c) the prosecution ended in favour of the plaintiff; and (d) it caused damage to the plaintiff. (2). It is not sufficient to establish malice alone, but malice must be accompanied by the absence of reasonable and probable cause to trigger the process of law. (3). Even when the prosecution is not entirely mala fide at the time of its initiation, its continuation after a disclosure that facts upon which it was based are not true may give rise a claim for damages for malicious prosecution. (4). The last element in a claim for malicious prosecution i.e. damages suffered, need not be specifically proved or quantified in the event that the claim includes damages for loss of liberty, dignity, reputation and mental anguish and can be awarded by the court in its discretion in view of the circumstances of the case, starting from a reasonable baseline given that rights to liberty and dignity are inalienable rights and can only be interfered with in accordance with law. (5). The courts are under an obligation to ensure that lack of social or economic equality in the society does not culminate into legal inequality. Granting of damages for malicious prosecution is a means to hold to account a person who abuses the process of law against another and to offer recompense to the person on the receiving end of such abuse. Even though restitution is not possible in a claim involving loss of liberty and dignity, the court must aim to award damages that are reasonably proportionate to the harm inflicted." (Emphasis added) c) Muhammad Yousaf versus Abdul Qayyum4
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"9. This has meant that the plaintiff has had to establish, inter alia, malice as well as absence of reasonable and probable cause to succeed in a claim for malicious prosecution. Mere 'absence of reasonable and probable cause' has not been held to be sufficient to establish malice, although it can be used as evidence for establishing malice. Malice is a state of mind and can be inferred from the circumstantial evidence. We can take judicial notice of our societal norms which appears to be at variance on norms of English society. The mere lodging of an FIR creates a public perception adverse to the reputation of the accused. Where the FIR is proved either to be false or to have been lodged without reasonable and probable cause,
{{FOOT NOTE}} 4 PLD 2016 Supreme Court 478
the circumstances of any given case may be sufficient to show that the lodging of the criminal case was malicious." d) Abdur Rashid versus The State Bank of Pakistan5 "7. The term `malice', in a prosecution of the nature which is before me, has been held not to be spite or hatred against an individual but of `malus animus' and as denoting the working of improper and indirect motives. The proper motive for a pro secution is the desire to secure the ends of justice. It should, therefore, be shown that the prosecutor was not actuated by this desire but by his personal feelings. 8. As regards reasonable and probable cause, the classic definition is that given by Hawkins, J. in Hicks v. Faulkner ((1881)8 Q B D 167) that it is, "an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." This definition was approved by Lord Atkin in his speech in Herniman v. Smith. But in a later decision of the House of Lords, Glinski v. McIver ((1962) A C 726) Lord Devlin defined reasonable and probable cause to mean that there must be a cause (i.e. sufficient grounds) for thinking that the plaintiff was probably guilty of the crime imputed. Diplock, L. J. followed this definition in Dallison v. Caffery ((1965) 1 Q B 348). It is not necessary that the prosecutor should have the belief that evidence E is sufficient to secure the conviction. The requirement of law would be satisfied if the prosecutor has prima facie evidence pointing out towards the plaintiff's guilt Dawson v. Vasandau ((1863) 11 W R 516). In an Australian case Commonwealth Life Assurance Society Ltd. v. Brain ((1935) 53 C L R 343) Dixon, J. observed that it is enough that the prosecutor believes that the probability of the accused's guilt is such that upon general grounds of justice a charge against him should be brought. It is not necessary that the prosecutor should enter into an examination of the strength of the evidence for the defence. He is concerned only with the question whether there is a fit case to be tried-See Tempest v. Snowden: Glinski v. McIver; Dallison v. Caffery. The rule may be summed up, according to Lord Devlin, Glinski v. McIver in this way: "Did the Prosecutor actually believe and did he reasonably believe that he had cause for prosecution"?" (Emphasis added) e) United Bank Limited versus Raj Ghulam Hussain6 "11. However, there is no finding that the appellant was actuated by any malice against respondent No. l for lodging the report.
{{FOOT NOTE}} 5 PLD 1970 Karachi 344 6 1999 SCMR 734
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Further, there is also no averment in the plaint that the report was lodged without any reasonable or probable cause. Indeed, in the absence of any averment no amount of evidence could be looked into. Still in the absence of an; pleadings, no evidence was produced on behalf of respondent No. l in this regard. There is no positive finding by the Courts below that any of the defendants in the suit bore malice against respondent No.l or that the prosecution of respondent No. l was actuated on account of malice on their part. It is an admitted position in the case that as a result of audit of the Attock City Branch of the Bank, it was discovered that a sum of Rs.1 lac was withdrawn by the Attock City Branch through a cheque of that Branch from the National Banki of Pakistan which was not accounted for in the books of account of Attock Branch. The disputed cheque purportedly bore the signatures of respondent No.1 and another employee of the Branch, Muhammad Ayub. Respondent No.1, being the Manager of the Attock City Branch of the bank at the relevant time was not only responsible for its overall working but also owed an explanation to the management for the withdrawal of huge amount of Rs.l lac and its embezzlement by the branch which was working under his exclusive charge as its Manager. Respondent No.1 except for denying his signatures on the cheque offered no other explanation for the encashment of cheque and embezzlement of the amount. Respondent No.l did not plead that the cheque was stolen or misplaced from his branch of the bank. The fact that F.I.A. Authorities acting on the basis of the F. I. R. lodged against respondent No. l arrested him in the case, supported the contention of appellants that the F.I.R. was lodged not without reasonable and probable cause. In these circumstances, lodging of the F.I.R. by the appellants/bank alleging embezzlement of the amount, against respondent No.l and another employee of the bank, whose signatures prima facie appeared on the disputed cheque, could not be described as without reasonable and probable cause. The learned counsel for respondent No. l very heavily relied on the discharge order dated 28-5-1981 in the criminal case, in -support of the contention that the prosecution lodged against respondent No.l was malicious. We have already reproduced the report of F.I.A. submitted to Special Judge, Central, in the case and the orders of the Court passed thereon. In any case, the fact that respondent No. l was discharged in the, case by the Court without being challaned in the case, only proved that the prosecution terminated in his favour. This fact, however, was not sufficient to prove either malice on the part of appellants or absence of a reasonable or probable cause for the prosecution of respondent No. 1. Apart from it, the copy of challan produced in evidence shows that respondent No. l was not sent up to stand trial in the case before the Court and as such it cannot be said that respondent No. l was prosecuted in the case. Respondent No. l having failed to establish the essential ingredients, namely, malice on the part of appellants and absence of reasonable and probable cause for initiating his prosecution, was not entitled to any damages on account of malicious prosecution in the case. f) Sadaruz Zaman versus The State7 `As is apparent from the prosecution case the allegation against the 2 acquitted accused was of general type. They were accordingly acquitted on the extension of benefit of doubt. That does not mean that they were falsely implicated. The extension of benefit of doubt would not exclude the possibility that they or any one of them might also have been involved in the matter." g) Messers Mehran Electronics Company versus National Bank of Pakistan8 h) Muhammad Akram versus Mst. Farman BI9 i) Allah Rakhio versus Muhammad Usman & Others10 j) Azizullah versus Jawaid A. Bajwa and 3 others11 k) Abdul…
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