1. This is a suit for recovery of damages to the tune of Rs.51,000.
2. 2.Case orthe plaintiff is that on 18-3-1975 he had purchased a consignment of 7-Shirts' from defendant No.1 for an amount of Rs.1,08,500 for exporting the same from Pakistan. On 5-4-1975 defendant No.2 lodged F.I.R against defendant No.1, who was her husband, alleging fraud and misappropriation. Thereon the police came to the office of the plaintiff, confiscated those 7-Shirts' and packed them in 47 bales under a Mashirnama, but left the same in the custody of the laintiff.
3. The case was challaned before A.C.M. No. 24, Karachi, who allowed the plaintiff to retain the custody of those 7-Shirts' on executing bond in the sum of Rs.2,08,000. The said case was then transferred to the Court of S.D.M., Central, Karachi. The plaintiff filed a suit for declaration against defendants Nos. 1 and 2 and S.D.M., Central, Karachi. The Civil Judge permitted the plaintiff to sell the 7-Shirts' on furnishing surety in the sum of Rs.1,50,000. The plaintiff accordingly disposed of the 7-Shirts'. On 2-7-1976, when the plaintiff was sitting in the office of Vth Senior Civil Judge, defendant No.2 came and slapped on his left ear rupturing the drum whereafter the hearing of left ear was lost. The plaintiff lodged such F.I.R. Against defendant No.2. Thereafter defendant No.3, Mohammad Khan Junejo, who was Home Secretary Sindh and defendant No.4, who was S.H.O.Mithadar Police Station, Karachi, in conspiracy with defendants Nos.1 and 2, lodged F.I.R, under the Defence of Pakistan Rules against the plaintiff and three persons, namely Mehmood Ali, Asadullah and defendant No.1 Muneer Hussain Sherazi. The plaintiff was handcuffed, insulted and humiliated and was pressurised to pay Rs.2,50,000 to defendant No.2. The plaintiff was put in lock-up for 14 days and thereafter transferred to Karachi Central Prison where he remained for one month and eight days. He was also tortured in the jail and was being pressurised to pay the above amount. On the intervention of Dr. Ishtiaq. Ahmad and Syed Saeed Hassan, defendant No.3 accepted Rs.25,000 each and released the plaintiff, Asadullah Baig and Mehmood Ali. Defendant No.1, Muneer Hussain Sherazi did not pay Rs.25,000. As such he remained in jail, till the lifting of Martial Law, whereupon D.P.R. Was also withdrawn and defendant No.1 was released, while the case under the D.P.R. Against the plaintiff and others was also withdrawn. It was stated in the plaint that this case is also mentioned in the White-Paper issued by the Martial Law Government in 1978. As a result of the wrongful arrest and malicious prosecution, the plaintiff had suffered mental and physical torture and disrepute. Hence the suit.
3. Defendant No.1 has chosen to remain absent and therefore, the suit proceeded ex parte against him. Defendant No.2 filed written-statement, denying the plaintiff's case and alleging fraud and criminal mis-appropriation against defendant No.1, who was no more her husband. She also denied that there was any conspiracy between her and the remaining defendants, or that she had been instrumental in getting the plaintiff or defendant No.1 or the other persons mentioned in the plaint arrested under the D.P.R. Defendant No.3 has also filed written-statement wherein he has denied the allegations of hatching conspiracy, collusion, demanding bribe, torturing or pressurising the plaintiff or other persons. He has alleged that he acted bona fide in issuing 'no objection' and is not liable for any action that has been taken under the D.P.R. Besides this he has also taken certain legal pleas which arc evident from issues. Defendant No.4 has also filed a similar written- statement. He has alleged that a case of fraud and misappropriation was registered against defendant No.1. Thereafter the plaintiff was taken in custody in case under the D.P.R. And remained in unlawful custody for fourteen days. He has denied that this was due to any conspiracy or collusion or the plaintiff was insulted, humiliated or pressurized to pay Rs, 2,50,000 to defendant No.2 or the bribe to defendant No.3. Defendant No.5 has also filed written-statement denying the allegations in the plaint, and supporting the written-statement of defendants Nos.3 and 4. The suit against defendant No.5 was withdrawn by plaintiff on 22-1-1985.
4. 4.On the pleadings of the parties following issues were framed:---
(1) Whether a criminal conspiracy was hatched between defendants Nos. 2, 3 and 4 to get the plaintiff implicated in a case under Rule 42 (6) (H) (T) read with Rule 49 of D.P.R?
(2) Whether as a consequence of the above the plaintiff was arrested alongwith three other persons, was handcuffed, insulted and humiliated before scores of persons and was put in the lock-up?
(3) Whether on instruction of defendant No.3 the defendant No.4 pressurised the plaintiff and asked for a sum of Rs.2,50,000?
(4) Whether when the plaintiff was unable to pay the above amount he was shifted to Karachi Central Jail?
(5) Whether the defendant No.3 arranged a meeting of the relatives of the plaintiff and demanded at least Rs.25,000 each by saying that this amount shall be paid to the defendant No.2?
(6) Whether amount of Rs.25,000 was paid to the defendant No.3, whereupon the plaintiff was bailed out in the case?
(7) Whether the case under D.P.R. Was ultimately withdrawn by the defendant No.5?
(8) To what extent, if any, are the defendants liable?
(9) What should the decree be? ADDITIONAL ISSUES:
(1) Whether the suit is time-barred?
(2) Whether the suit is maintainable under the law?
6. My findings on these issues with reasons, therefor, are as follows:--- ADDITIONAL ISSUES NOS. 1 AND 2: Defendant No.3 was working as Home Secretary to the Government of Sindh during the relevant period, when emergency was, in force in Pakistan and Defence of Pakistan Ordinance, 1979 and the Rules framed thereunder were subsisting. Defendant No.4 was working as Station House Officer at Mithadar Police Station. The plaintiff had made Government of Sindh, under whom both the defendants were serving, a party i.e. Defendant No.5. The plaintiff, however, as already pointed out, on 22-1-1985 dropped defendant No.5 Government of Sindh and therefore, the suit was dismissed as withdrawn against defendant No. 5.The Government of Sindh was not only a proper but a necessary party in this suit so far as defendants Nos. 3 and 4, who were Government Officers, were concerned, because without joining it no suit for damages on account of misfeasance or malfeasance can be filed in respect of any act done by them in their official capacity. Reliance in this connection is placed on the following rulings:---
(1) PLD 1971 Kar. 625 (Secretary B&R Government of West Pakistan and 4 others v. Fazal Ali Khan).
5. In this case a point was raised by the counsel for the defendant that in this suit the Government was a necessary party as the appellants had been sued for acts done by them in their official capacity and since the Government was not joined as party, the suit was bad for non-joinder of a necessary party. It was held by a Division Bench of this Court that since the Provincial Government was a necessary party to the suit and was not a party to it, the suit must fail.
(2) PLD 1979 Lah. 564 (Malik Ghulam Jilani v. The Province of Punjab and others).
6. This is the famous constitutional petition filed by Malik Ghulam Jillani for direction to General Ziaul Haq, Chief of Army Staff to refrain from passing any order on the mercy petition filed by the appellant as a friend of Mr. Z.A Bhutto in regard to the latter's death sentence etc. It was held that the Intra-Court Appeal suffered from misjoindcr and non-joinder as parties. The appellant should have impleaded Federation of Pakistan in place of Chief of Army Staff and C.M.L.A. The appeal being incompetent could be thrown out on this ground alone. Since in spite of having been pointed out during the arguments, the appellant had failed. To do the needful in this behalf, therefore, the appeal was held to be not maintainable being incompetent.
7. (3)1986 CLC 2987 (Secretary-cum-Chief Engineer, Irrigation Department Government of Balochistan, Quetta and 2 others v. Ghulam Muhammad Khan and another).
8. In this case it was urged by the counsel of the appellant that Agricultural Development Corporation and subsequently the Government of Balochistan could not be sued as the action could be brought against the officials, who were at the relevant time posted as Incharge of the canal in their personal capacity. It was further urged that if it was misfeasance or malfeasance or negligence of employee, then the suit was competent only against the concerned employee and should have continued against those officials. It was held that the contention of the learned counsel is untenable. The suit was being defended by the Government pleader. Even otherwise the officials were responsible in their official and not in their personal capacity. As such the Corporation and its officials and after the dissolution of the Corporation, the present appellant i.e. Government of Balochistan were necessary party to the suit.
9. 7.Mohammad Zubair Qureshi, the plaintiff, in reply relied upon PLD 1990 Lah. 432 (Ghayoor Hussain Shah v. Gharib Alam). In this case a learned Single Judge of Lahore High Court has decreed the suit for damages for malicious prosecution. It may be pointed out that none of the defendants was a Government Officer, nor was he being sued in the official capacity, nor in this suit is there any finding to the effect that Government is not a necessary party in a suit for damages claimed from Government Officers acting in their official capacity. Hence this ruling cannot apply to the facts of the present case.
10. 8.The plaintiff has further relied upon PLD 1975 Lah. 1238 (Abdul Ghani Ghuman v. The Province of Punjab). This case is also distinguishable from the present case, because not only the Province of Punjab was a party to the suit, but it was held that the Government having accorded sanction for prosecution of the plaintiff, the Government of the Province was held responsible and was made to pay the damages. I am, therefore, satisfied that the suit is incompetent against the official defendants Nos.3 and 4, as the Government of Sindh having been dropped, is no more a co- defendant in this suit.
11. 9.Besides this Mr. Zubair Qureshi has cited the following rulings:---
(1) AIR 1930 Allahabad 742 (Mohammad Sharif v. Nasir Ali).
(2) 9 ILR 375 (M.A. Kader Zailany v. The Secretary of State for India-inCouncil)
(3) PLD 1948 Privy Council 150 (the famous case of I.M.Lall).
(4) PLD 1956 SC 25 (Usman Bhai v. Federation of Pakistan).
(5) PLD 1968 Azad J&K 48 (Hakim Muhammad Salecm v. Government of Azad J&K).
12. None of these rulings applies to the present case. In case of Mohammad Sharif v.Nasir Ali (supra), it was held that all the three defendants including the Police Officer, were rightly considered by the trial Court to have prosecuted the plaintiff so as to entitle the latter to sue them for compensation for malicious prosecution. It is nowhere held in this ruling that alongwith the Police Officer the Government was not made a party or that the suit could proceed in the absence of Government or that the Government was not a necessary party. In the case of M.A. Kader Zailany it was held that "Government is not liable for wrongs done by its officers unless the wrongful act is done either by its order, or on its behalf being subsequently ratified or adopted by it. It is not ordinarily liable for wrongs done by subordinate public officers in the exercise of powers given to them by law. No suit therefore lies against the Secretary of State for damages for wrongful arrest and detention of a person by a police officer." This ruling does not say that Government is not a necessary party in a suit for damages against a Government Officer. Similarly in all other above rulings cited by Mr. Zubair Qureshi the point in dispute is as to whether the Government was liable under torts for the amount of damages or salary, but in none of these cases the question as to whether the Government was a necessary party in such a suit against Government Officer or not was not considered. On the contrary in all these rulings the Government was party. Hence I am of the clear view that the suit is not maintainable against defendants Nos.3 and 4 in the absence of Government of Sindh which was a necessary party.
13. 10.Articles 19 and 22 of the Limitation Act, 1908 will apply to the suit of the plaintiff which read as under-- "Art. 19.For compensation for false imprisonments. One year.When the imprisonments ends.
14. "Art.22. For compensation for any other injury to the person. One year.When the injury is committed.
15. 11.According to the plaintiff himself, he was arrested on 11-12-1976 and he was released on 'bail in the case on 3-2-1977, meaning thereby that his imprisonment ended on 3-2-1977, when he was released on bail. He has filed the present suit against the defendants and others on 11-4-1978. The suit was supposed to have been filed within one year from 3-2-1977 when the imprisonment ended and the plaintiff was released on bail. The suit has been filed after one year, 2 months and 8 days i.e. On 11-4-1978. Thus the suit is barred by limitation on the face of it and is time-barred, so far as compensation for false imprisonment and any other injury is concerned.
16. 12.Section 3 of the Limitation Act reads as under:--- "Dismissal of suit etc. Instituted etc.After period of limitation.--Subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred and application made, after the period of limitation prescribed thereof by the First Schedule shall be dismissed although limitation has not been set up as a defence."
13. In view of this legal position, the suit is barred by limitation so far as the grounds of wrongful arrest 'and injury are concerned. The provision of Article 23 of the Limitation Act to a suit is for malicious prosecution. In this respect, it is pointed out that even this Article also bars the suit of the plaintiff. This Article reads as under:-- "Art.23.For compensation for a malicious prosecution: One year.when the plaintiff is acquitted or the prosecution is otherwise terminated.
17. After the abolition of Special Tribunal under Defence of Pakistan Ordinance, 1971, with effect from 13- 7-1977, all the pending cases were transferred to the Criminal Courts of competent jurisdiction as provided under sections 4 and 5 of the Special Tribunal Abolition Ordinance, 1977. The case of the plaintiff also stood transferred to the Criminal Court of competent jurisdiction according to law. The plaintiff has miserably failed to produce any document to show that he was acquitted by the competent Court of Law from the charge after the transfer of the case from Criminal Court which he was facing before the Tribunal or the prosecution otherwise terminated in his favour. The plaintiff has neither produced any such document to support his contention, or any other reliable evidence to show that the prosecution has otherwise terminated in his favour without which the suit for malicious prosecution is not maintainable. Hence no cause of action has accrued to him.
18. 14.I am, therefore, of the clear view that the suit is barred by limitation so far as the claims for compensation for false imprisonment and any other injury to the person is concerned. I am also of the clear view that cause of action to file the suit for malicious prosecution has not arisen as yet.
19. Hence I hold both these issues in the negative.
20. ISSUES NOS.1 TO 8: In view of the findings on additional Issues Nos.1 and 2, it is not necessary to give any finding on these issues. Hence I am not giving any finding on these issues.
21. ISSUE NO.9.
22. In view of the findings on Additional Issues Nos. 1 and 2 the suit is dismissed. However, in view of the special circumstances of this case, I direct the G parties to bear their own costs.