1. ' MRS. QAISER IQBAL, J.---The plaintiff has filed suit for damages against the defendants.
2. ' Cause of action has accrued to the plaintiff on 2-7-2001, at about 5-30 a.m., the defendants Nos.3 to 6 of Baghdadi Police Station, illegally, forcibly entered into his house, dragged him out physically assaulted and abused without any rhyme or reason. The plaintiff was not informed about the charges levelled against him, when he attempted to inquire about the charges, he was threatened in harsh and unlawful manner, physically assaulted by the defendants Nos.3 to 6, police officials then serving at Baghdadi Police Station. The plaintiff was unlawfully confined for three days, during this span the plaintiff's relatives and office colleagues contacted the defendants Nos.2 to 5, they were assured that the plaintiff would be set free and was apprehended on account of suspicion under section 54 of C.P.C. During the interrogation the plaintiff disclosed to the defendants Nos.3 to 5, that he was an employee of High Court of Sindh, did not commit any offence, the defendants used derogatory words maligning judiciary, illegally handed over the custody of the plaintiff to Garden Police Station on 4-7-2001, he was investigated by defendant No,3 and other official of Baghdadi Police Station, consequently in a blind F.I.R. No,124 of 2001, the plaintiff was booked by the defendants Nos.8 and 9, for alleged bomb blast in Prince Cinema on 5-7-2001, plaintiff was produced before Judge of Anti-Terrorism Court, Karachi for obtaining the remand, released on execution of P.R. Bond in the sum of Rs,10,000, latter police submitted report under section 169, Cr.P.C. For the withdrawal of the case, which was approved by the Court. The plaintiff has claimed that he was unlawfully arrested, seriously humiliated in front of people of the area, miserably beaten by police officials during illegal confinement nominated in blind F.I.R., due to high- handedness of the police officials of Baghdadi/Garden Police Station, the plaintiff has sustained (a)Plaintiff's loss of reputation and agony suffered by him due to police humiliation brutality in front of area people.Rs.20,00,000 (b)Due to police illegal action/restraint of liberty and implication in the false case.
3. TotalRs.50,00,000 Rs.70,00,000serious damages to his reputation, so much so that on account of brutality of police, his old parents became seriously ill. The father of the plaintiff was hospitalized owing to shock and harassm ent could not sustain the agony, on account of the high-handedness of the police officials expired on 18-9-2001. The plaintiff has resorted to file a complaint before the Hon'ble Chief Justice, Sindh High Court, about the excess and high-handedness of the police, the Senior Puisne Judge, in his order dated 18-8-2001, directed the Inspector General of Police for taking severe disciplinary action against the police officials, despite of the lapse of considerable time no action has been taken by the competent authority. The plaintiff has claimed the damages against the defendants enumerated as follows:-- ' It is averred that the defendant No,2 D.S.P.
4. Known for his notorious activities for involving the innocent people in false charges and subsequently releasing them after realizing huge bribe. The plaintiff remained under constant fear on account of high-handedness of the police officials, who were threatening him with dire consequences.
5. ' The defendant No,1 in written statement did not comment to paras 1 to 9, 11 to 14, of the plaint submitted that copy of order dated 18-8-2001, was marked to D.I.G (P) Karachi, to submit report within 7 days, per report of S.S.P. (South) Karachi, the matter was inquired through S.D.P.O. Baghdadi Police Station revealed that no illegality was committed by the staff of Baghdadi Police Station. The defendant No,2 denied the allegations of wrongful confinement, torture and harassment averred that S.-I. Mehboob Ellahi of Police Station Baghdadi, arrested the plaintiff along with Shahzad, when he was roaming near Shah Waliullah Road in suspicious condition, they did not disclose their identity thoroughly interrogated by S.-I. Chand Khan Niazi of Garden Police Station and were arrested in Crime No,124 of 2001 under sections 302, 324, P.P.C., read with sections 3 and 4 Explosive Acts and sections 7 (i)(ii) of ATA by Garden Police Station, therefore, allegation of unlawful arrest, illegal confinement, maltreatment were unfounded as the answering defendant never threatened the plaintiff to dire consequences.
6. ' The defendant No,3 in the written statement averred that Sub-Inspector Mehboob Ellahi, during patrolling within the jurisdiction of Baghdadi Police Station had arrested the plaintiff under section 54 Cr.P.C., later his custody was handed over to Sub-Inspector Chand Khan Niazi, Garden Police Station for interrogation in charged crime. It is specifically denied that the answering defendant being official of the police force as public servant had high respect and regard for the High Court as well as for the Hon'ble Chief Justice. The allegation of humiliation, maltreatment was specifically denied.
7. ' The defendants Nos.4, 5, 6 and 7 filed joint written statement, denied the allegations as levelled in the plaint against them, averred that the suit is based upon false accusation levelled by the plaintiff, he was linked with political party Jeay Sindh, detained and interrogated to thrash whether he was involved in the commission of crime.
8. ' The defendants Nos.8 to 9 in the written statement raised pleas about the maintainability of the suit averred that being recipient of the information about the arrest of Jeay. Sindh suspect, S.-I.
9. Chand Khan Niazi sent Police to Police Station Baghdadi for the arrest of plaintiff and one Shahzad, it is specifically denied that the plaintiff was illegally confined, and humiliated.
10. ' The defendant No,10 did not file written statement.
11. ' Upon the pleadings of the parties, following issues were framed for determination of the dispute:--
(1) Whether the arrest and detention of the plaintiff by the defendants was in accordance with law?
(2) Whether the plaintiff is entitled to damages and defendants are liable to pay the same jointly and severally, in case the plaintiff was illegally and unlawfully detained and confined wrongfully by the defendants?
(3) What should the decree be? ISSUE No,1 The plaintiff adduced evidence about his illegal arrest from his house at about 5-00 a.m. Illegally detained on the basis that he was an activist of Jeay Sindh, his arrest was shown along with Shahzad from Shah Waliullah Road by S.-I. Mehboob Ellahi, they were interrogated by S.-I., Chand Khan Niazi in a blind F.I.R. No,124 of 2001, registered on account of bomb blast. Plaintiff was assaulted, abused and dragged upto the police van. D.W.1 Anwar Alam Subhani, admitted that the plaintiff on account of suspicion was arrested under section 54, Cr.P.C. In any view of the matter, the element of arrest was admitted by the defendants, however, the place of venue of arrest was disputed.
12. ' Learned counsel appearing for the plaintiff has contended that the defendants were not justified in collecting the plaintiff in a blind F.I.R. On the basis of suspicion. It is further contended that admittedly police officers had not connected sufficient material, which could reasonably connect the plaintiff with offence for which he was charged, in support of the above contention reliance is placed in the case of Muhammad Siddique v. Province of Sindh (PLD 1992 Karachi 358), the rule laid down is, police officer have been conferred sufficient power to arrest a person in the investigation of a cognizable offence under section 54, Cr.P.C., if he is connected with commission of such offence but such powers can be exercised only in those cases, where a police officer possessed of some evidence indicating involvement of a person under the situation mentioned in section 54(i), Cr.P.C. Further, it is observed when a police arrest a person under a blind F.I.R. And is unable to place any material, which could reasonably connect such accused with the offence, for which he was charged, not only such arrest is unlawful or arbitrary, such police officer cannot claim any protection under the law and could be punished for excesses. It is established from the evidence adduced by D. Ws. Inspector Anwar Alam Subhani, DSP Muhammad Akhtar Lodhi, Inspector Qaiser Ali Shah, Inspector Irfan Ahmed Khan, that plaintiff was arrested under section 54, Cr.P.C. No report was lodged at Baghdadi Police Station against him nor incriminating articles' were recovered on his personal search. The plaintiff was not produced by the officer of Baghdadi Police Station before the Magistrate for seeking remand, later he was interrogated by S.-I. Chand Khan Niazi of Garden Police Station under the supervision of S.-I. Imran Ahmed, till the morning of 4-7-2001, plaintiff remained in the lock-up of Baghdadi Police Station, later he was released by Anti-Terrorism Court, Karachi under section 169, Cr.P.C. Such report was admittedly signed by S.S.P. Saddar Police. Station Mr. Abdul Hameed Exh.6/1, S.-I. Imran Ahmed Khan has admitted that he did not instruct Inspector Chand Khan Niazi to arrest the plaintiff in the circumstances spelt out of the case. It can be conveniently held that plaintiff in illegal exercise of power was arrested by the defendants Nos.2 to 6, no material was available to detain the plaintiff in commission of the crime.
13. ' Section 46 of Cr.P.C. Specifies that while making an arrest, police officer shall actually touch or confine the body of the person to be arrested unless, there be a submission to the custody by word of action, if such person forcibly resist in the endeavour to arrest or attempt to arrest, police officer may use all necessary means to effect the arrest.
14. The evidence of the plaintiff is not shattered on the point that he was arrested outside from his house, only evidence led by the defendants is that he was arrested from Shah Waliullah Road, along with one Shahzad by S.-I., Mehboob Ellahi.
15. ' The question requiring consideration is whether there is a reasonable ground to suspect the plaintiff of having committed a crime. The finding of fact reveals that the arresting officer did not have sufficient material leading to the necessary suspicion that the plaintiff had committed offence triable by Anti-Terrorism Court. The information on which the police officer found the suspicion turned to be ill-founded on account of release of the plaintiff under section 169, Cr.P.C. It is also borne out from the record that upon the arrest of the plaintiff without warrant the police officer did not inform him the nature of the alleged offence committed by him, in case restraint on the liberty of the plaintiff he was entitled to know the reasons and in case police failed to inform him the arrest will be unlawful. Police has arrested and dragged the plaintiff in a police van, thus committed a wrongful action, on account of deprivation of the person's liberty. In case of Faingaa v. Lelea and others (2005 TOSC-6 (Tonga), dilating on the issue of the false imprisonment, it has been laid down on the basis of well-established dictum stated by Law Bridge in Hague v. Deputy Governor of Parkhurst Prison (1993-1 LRC 659 at 670).
16. "The tort of false imprisonment has two ingredients; the fact of imprisonment and the absence of lawful authority to justify it."
17. In a case of tort of strict liability, there is no onus on the plaintiff to prove that the imprisonment was unlawful or malicious. Once the plaintiff establishes the fact of imprisonment, it is sufficient to make out a prima facie case and onus falls to defendants to prove that the detention was lawful. It may be so, for example if it is pursuant to an order of the Court or the exercise of statutory powers. In an action for false imprisonment the defendant as a matter of law is required to prove that the detention or imprisonment was lawful.
18. ' In case of R.B. Governor Brock Hill Prison Ex parte Evans No,2 All England Law Reports (2000 AER 15), on an application for the mutual review, Habeas Corpus was filed by a prisoner at Brock Hill Prison, she was sentenced for 2 years imprisonment for robbery, 9 months imprisonment concurrent for two offences of burglary and 3 months imprisonment concurrent for an assault on account of actual bodily harm. She was conditionally released from prison after an application for judicial review was allowed, but 59 days later when she should have been released and for those 59 days additional imprisonment she claimed damages. She claimed that the Governor of Brock Prison had adopted the method of calculation laid down in the earlier decision did not comply with the law and detained her until the decision of the Division Court. ' The Governor plea was that he did not make any mistake of law, the error of law was that of the Courts in decision prior to that of the Divisional Court. The Court arrived at conclusion that because of a mistaken view of the law based on decision of the Court prisoner was deprived of their liberty, therefore, they were entitled to appropriate sum by way of damages.
19. ' The leaned counsel appearing for the plaintiff has contended that damages claimed for mental shock, torture, humiliation in front of the public stand proved from the evidence produced by the plaintiff and has gone unrebutted on account of wrongful acts of the defendants, the damages flow from the wrong committed by them.
20. ' In case of Muhammad Ishaq v. Metropolitan Corporation, Lahore through Mayor (PLD 1996 SC 737), in a suit for damages for mental torture and nervous shock adduced to determine the principle of forcibility for determination of damages caused heavy duty on Court to adjudge whether the plaintiff in action of damages can recover compensation for mental torture, nervous shock and injuries arising out of a breach of duty or a wrongful or negligent act of defendant in such an action, the proof of physical molestation of the plaintiff at the time of incident is not necessary. It is laid down that compensation can be granted where a wrong has been done to a party and the damage flow from that wrong, there can be no yardstick or definite principle for assessing damages in such cases, the damages are meant to compensate a party who suffers an injury may be bodily loss of reputation, business, mental shock and suffering.
21. ' In case of Mazaruddin v. The State 1998 (PCr.LJ Kar. 1035), the dictum laid down is that monetary compensation to victim of violation of fundamental rights can always be awarded by the Court in proceeding for enforcement of such rights.
22. ' Relevant observations at page No,1065, are reproduced hereinbelow:-- "43. The next question that has received our anxious consideration is whether such compensation is payable by the State or by the delinquent officer personally. The cases discussed above clearly show that the duty to protect fundamental rights of a citizen is that of the State and it must compensate a person whose rights have been violated on account of mala fide and unlawful acts of its servant. As held by the Privy Council in Maharaj v. The Attorney General of Trinidad and Tobago 1979 AC 385 such compensation is payable under public law even when it cannot be claimed under private law on account of some immunity. The same view has been taken by the Supreme Court of India in Nilabati Behera v. The State of Orissa and others (1993) 2 SC Case 746.
23. Even otherwise unlawful acts of public functionaries in the pretended or purported exercise of State power had always been treated as State action in different Constitutional systems. In IOWA Des Moines National Bank v. Bennett (1931) 284 US 239) the Supreme Court of USA after discussing several earlier precedents held "but acts done by virtue of public position and in the name and for the State are not to be treated as if they, were acts of private individuals, although in doing so the official acted contrary to an express command of a State Law. When a State official acting under the colour of State authority, invades, in the course of his duties, a private right secured by the Federal Constitution that right is violated even if the State Officer not only exceeded his authority but disregarded special commands of the State Law".
24. ' Learned counsel appearing for the defendants had contended that the suit as against the defendant Nos.1 and 10, is not maintainable in law, as the defendant No,1 has been sued in its official capacity as Government Officer for Official Acts, whereas the Defendant/Government of Sindh has been sued in their capacity as Government functionary. The plaintiff ought to have sued them in their individual or natural names, as the public offices are occupied by different persons from time to time. It is further contended that the defendant No,1 has been sued by mere designation, therefore plaint is liable to be rejected against the defendants Nos.1 and 10. In support of the above contention reliance is placed on the case of Abdul Rahim Beg v. Abdul Haq (PLD 1994 Karachi 388), it is observed that "in 'relation to tortuous liability protection available to the Crown under the English Law is not extendable to any Government in Pakistan and the Government is bound to act only in accordance with the Municipal Law, it also seems that for the tortuous acts of misfeasance and malfeasant of Government, servants, the Government may be a necessary party to the proceedings." F.M. Shefta v. Federation of Pakistan (PLD 1959 678), Pakistan v. Muhammad Yaqoob Butt (PLD 1963 SC 627), Sadruddin Ansari v. Dost Ali (PLD 1968 Kar. 673) and Muhammad Zubair Qureshi v. Munir Hussain Shirazi (PLD 1991 Karachi 214). Thus, while the joinder of the defendant No,4, government may have been in order that of the defendant No,3, does not seem to have been warranted. However, the government on the plan of cause of action, as well having been liable to be sued at Sanghar, it is liability to be sued in itself does not create any jurisdictional element for this Court to have entertained the shfit.
25. ' As to the joinder of the defendant No,3, there is an other serious defect. The rule is that in suit against Government Officers for official acts, if they are not intended to be made personally liable, the plaintiff must sue them in their individual or natural names, for public offices are occupied by different persons from time to time. Deviation renders the suit bad and liable to dismissal. The plaintiffs have adhered to the rule on behalf of the defendant No,1 but, for reasons better known to them, the defendant No,3 has been sued by mere designation. The only exception to the rule, which is not attracted here, is a case where an officer is sued in his capacity as a Corporation Sole, Secretary, B&R Government of West Pakistan v. Fazal Ali Khan (PLD 1971 Karachi 625).
26. ' Learned counsel appearing for the defendant has contended that the acts of the police officers set up in the array of the defendants in their personal capacity, there is no evidence on the record that they were responsible for the arrest of the plaintiff, therefore, no action lies against them. It is further contended that S.-I. Mehboob Ellahi had arrested the plaintiff not arrayed as defendant due to suspicion, therefore, in his absence the suit of the plaintiff cannot finally be determined. In support of the above contention reliance is placed on case of Muhammad Mohsin and others v.
27. Mozammel Haq Paramanic (PLD 1964 Dacca 195). It is further contended an element of presumption of bona fides is attached in respect of action of the government, which is protected under the law. The manner of holding inquiry or conducting proceedings is entirely the prerogative of the authority concerned even when principle of natural justice is pressed.
28. ' There has been grave concern on the question of liability of the Government in excess of tort committed by its officials. The controversy were resolved in case of Pakistan v. Muhammad Yaqoob Butt and others (PLD 1963 SC 627), the observations are as under:-- "it is well-settled and even learned counsel for the appellant is forced to concede that the government would be liable if
(i) it takes the benefit of property illegally detained by its servants or
(ii) it had to ratify the tortious act of its servant ' For the purpose of holding the government is liable in tort for the wrongful acts of its servants, the question of ratification of the illegal action of defendant Nos.1 to 9 have important bearing of facts of the case. Adverting to the facts of the present case, it appears that the plaintiff after being released by Anti-Terrorism Court had resorted to file an application against his grievance seeking inquiry which came up for hearing before the learned Puisne Judge, matter was directed to be taken up with Inspector-General of Police, seeking severe disciplinary action against those defied the law on the priority basis. It is an admitted position that Inspector-General of Police was apprised of the above order and the intimation was sent on 28-8-2001, to the defendant No,1, for initiating necessary legal proceedings against police officials involved in the commission of the crime. The inquiry did not bear any fruit, as it was marked by the Inspector-General of Police to the lowest officers in rank to submit its report, this act of the defendant No,1, admittedly tantamounts to ratification of the acts of the defendant Nos.2 to 9. In such situation, it was the duty of the defendants to prove the burden shifted upon them, that there was no ratification by the defendant No,1 acting under defendant No,10, they have failed to discharge the onus in accordance with law, in the given circumstances, the arrest of the plaintiff in blind F.I.R., without first collecting material cannot be treated as bona fide act of police officers in exercise to lawful authority vested in them bylaw. The illegal and wrongful prosecution, in absence of the specific truth of good faith resulting in mental torture and agony is the most important criteria to adjudge the conduct of the defendants.
29. In any view of the matter, on careful consideration of the evidence produced by the parties, I have come to conclusion that the arrest and detention of the plaintiff by the defendants was not in accordance with law, they acted arbitrary and in excess of the authority as there was no reasonable ground for his arrest nor informed the plaintiff regarding the grounds of the arrest, issue No,1 is answered accordingly.
30. ISSUE NO.2 ' Plaintiff had claimed the damages amounting to Rs,20,00,000 for loss to reputation and agony suffered by him, due to police humiliation and brutality. The law attaches supreme importance to the liberty of the individual and if he suffered a wrongful interference with his liberty, which remained actionable without prove,. Of special damages (Murray v. Ministry of Defence (1988 L.R.C.
31. (Const 519 to 529) for proper compensation for loss of reputation and agony, pain and sufferings aggravated damages are to be awarded to compensate the plaintiff for injuries to his reputation and agony. In the present case, the illegal confinement of the plaintiff was for limited days. There can be two elements to award of damages for false imprisonment, first is compensation for loss of liberty and the second being the damage to reputation, humiliation, shock and injury to feelings and other circumstances replied from loss of liberty.
32. ' The plaintiff was never arrested before nor was found involved in the blind F.I.R. Thus the loss sustained in terms of humiliation, shock or injury in all fairness can be assessed at Rs,10,00,000 (Rupees One Million).
33. Adverting to the damages claimed due to illegal action of police, restraint of liberty and implication in the false case, taken into consideration the illegal action on the part of the defendants, shows highhandedness and oppressive manner adopted by the defendants to imprisonment of the plaintiff. I am, therefore, of the view that the injuries sustained by the plaintiff can adequately be compensated by awarding damages amounting to Rs,25,00,000 (Rupees Twenty Five Lacs). The result of these two awards to the plaintiff in toto amounts to Rs,35,00,000 (Rupees Thirty Five Lacs) in all to meet the exigency, Issue No,2 is answered accordingly.
34. ISSUE NO.3 Net result in the above discussion is that plaintiff's suit is decreed against the defendants, jointly and severally in the sum of Rs,35,00,000 (Rupees Thirty Five Lacs) with cost. Announced by me on this 2nd day of May, 2006.