The Constitution of Pakistan, 1973 Developed by Zain Sheikh

GHAYYUR HUSSAIN SHAH AND ANOTHER

Versus

GHARIB ALAM

Per Fazal Karim, J.

(a) Constitution of Pakistan (1973), Article. 4 & 14—

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 Muslim shall be enabled to order their lives in the individual and collective spheres in accordance with the teaching 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 through, expression, belief, faith, worships and associations 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 lice, 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.

Good reputation of fair name is a basic right of a citizen in Islam. Muhammad Akram v. Farman Bi PLD 1990 S C 28,39).

As article 4 of the Constitution forbids any 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 damage 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 we bear 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 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. [p.445] I, J, K, L, M & N.

Appeals accepted.
Advocate for the Appellants:
Sh. Abdur Rasheed

Advocate for the Respondents:
Pir Anwar Rehman.

Date of hearing: 5ht May, 1990.