Law: Constitution of Pakistan, 1973

Section: 185(3)

(a) Tort--Constitution of Pakistan (1973), Art.185(3)---Damages for malicious prosecution---Theory of Islamic Criminal Law and its concept for compensation to the heirs of deceased---Applicability---Leave to appeal was granted to consider whether the facts and circumstances of the case gave any cause of action against the tortfeasor for damages for malicious prosecution or for libel; whether any cause of action claiming damages for wrong done to any person would survive against the tortfeasor after his death, or conversely would survive to the heirs of the person wronged after his death against the tort­feasor; whether a suit for damages could be decided under any other concept of law apart from English Common Law, without there being legislation giving it retrospective effect and whether the lis was subject to English Common Law; whether theory of Islamic Criminal Law and its concept for compensation to the heirs of deceased could be imported while interpreting civil liabilities under the decree of any Court by analogy; whether liability accruing out of the present suit could be deemed to be a charge on the estate of the deceased tortfeasor for which his heirs could be held responsible under the Muslim Law; and whether the appeal abated against defendant who died in 1975, when there existed no decree against him. (b) Islamic jurisprudence--- ---- Islamic Law, jurisprudence and philosophy underlying the same--­Applicability---Extent---All residuary law in Pakistan to be applied in fields other than those occupied by existing statutory law has to be Muslim Law and jurisprudence and the philosophy underlying the same---Prosecuting innocent persons maliciously in Muslim Society was not permitted and, in consequence aggrieved person could have recourse to Courts in Pakistan who were not only Courts of law but were also Courts of justice, equity and good conscience as well. Haji Nizam Khan v. Additional District Judge, Lyallpur PLD 1976 Lah. 930 and Muhammad Bashir v. The State PLD 1982 SC 139 rel. (c) Tort--- ---- Damages against malicious prosecution---All the Courts below had come to conclusion as a fact that prosecution of plaintiff was without any foundation…

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