' SABIHUDDIN AHMAD, J.--- On 15-10-1997 at about 2-30 p.m. We received separate telegrams from one Mazharuddin resident of House No,37/E, Unit No,9, Latifabad, Hyderabad, alleging that on 13-10- 1997 at about 11-40 p.m., A.S.-I. Imtiaz of Police Station "B" Latifabad alongwith Constable Niaz and Musharaf and others trespassed into the house with deadly weapons without any search warrant.
They misbehaved with him, his wife and daughter and forcibly took away his son Manzoor Mansoor and Imran (minor) to the Police Station in the Mobile. The aforesaid Mazharuddin went to the police station and asked the S.H.O. Aijaz Kaimkhani why his sons had been brought. He was informed that they were required to be interrogated and they will be released in the morning. The petitioner once again went to the police station at about 8-30 a.m. But, as stated in the telegram, the S.H.O. And A.S.-I. Imtiaz flatly refused to release petitioner's sons without greasing their palms. It was alleged that the petitioner's sons were being subjected to highhandedness and prayed that the telegram be converted into a petition with order for production of the detenus and legal action against delinquent police officials.
2. We directed the telegram to be registered as a Constitutional petition and further directed the Deputy Registrar of the Court (Hyderabad Circuit Bench) to visit the police station, inspect the Roznamcha/Station Diary and report whether the detenus were detained therein as alleged in the telegram. Same day the Deputy Registrar submitted his report stating that he accompanied by Mr. M. Iqbal Memon, Assistant of the Court, visited the police station and found five persons, including the petitioner's son Manzoor Mansoor detained in the lock-up. He further reported that alongwith the aforesaid detenu four other persons were detained and the names of these persons were entered in the Station Diary. He brought the Station Diary alongwith him and after inspecting it we ordered that the photo copies of the relevant pages be taken and placed on the record. Upon the receipt of this report, we directed the S.H.O. "B" Section Police Station Latifabad to produce the detenu in Court on 17-10-1997 alongwith his explanation for such detention and also issued notice to the Additional Advocate-General.
3. On 17-10-1997, Mr. Umeruddin, Advocate submitted that he had also filed Criminal Miscellaneous Application No,168 of 1997, in respect of the same detention. We accordingly decided to take up both matters together. The detenu was produced and examined in Court and he claimed that he was kept in confinement in the lock-up since 13th October, 1997. We examined the Station Diary and the police file in the presence of the S.H.O., who was unable to refer to any entry evidencing the arrest/detention of the detenu nor was he able to refer to any basis for a reasonable suspicion to the effect that the detenu was involved in a cognizable offence. We, therefore, directed his release and put the learned A.A.-G. As well as the S.H.O. Concerned on n6tice to make their respective submissions on the following points:--
(i) Whether in the circumstances of the case any monetary compensation should be payable by the concerned Police Officer or the State or both;
(ii) Whether a criminal case is to be registered against the S.H.O.
4. Mr. Aijaz Ali Kaimkhani, S.H.O. Filed a counter-affidavit repudiating the contents of the telegram.
He alleged that the detenu Mansoor was required for the purpose of investigation in Crime No,22 of 1996 and during the night of 13th October, 1997 a police party went to his house to enquire about his whereabouts. According to him the petitioner informed him (deponent) that the detenu had gone out of Hyderabad on account of some personal work and undertook to produce him before the police upon his return. However, he was unable to refer to any entry in the station diary which could indicate that he had gone to the petitioner's house or met him on 13-10-1997 or taken any other steps in relation to investigation of Crime No,22 of 1997. Moreover, he further stated in his counter- affidavit that on 16-10-1997 the petitioner and the detenu arrived at the police station between 10 or 10-30 a.m. While he was away on patrolling duty. Within a few minutes of his return to the police station and before he could record an appropriate entry in the station diary relating to the detenu the Deputy Registrar arrived at the police station and took possession of the diary. The detenu according to him was sitting at the police station at that time. He claims that the telegram was apparently sent with some mala fide motive and claimed that he bore no malice against the petitioner or the detenu.
5. Mr. Abdul Sattar Kazi learned counsel for the S.H.O. (respondent No,4) attempted to explain away the conduct of his client by submitting that the detenu was required in connection with a substantive offence and the only lapse on the part of the said respondent was a few minutes delay that might have occurred in recording his arrest in the station diary. We regret that the matter is not as simple as Mr. Kazi would like us to believe. In the first place the aforesaid respondent has not been able to establish any nexus between the detenu and the crime in connection with which he was allegedly arrested. Admittedly the detenu's name does not appear in the F.I.R. Nor have the respondent placed any material whatsoever before the Court either to satisfy us that the detenu was not arrested without lawful authority or even to show that there was some basis upon which the respondent No,4 could reasonably suspect the detenu being involved in a cognizable offence.
The law in this respect is very clear. In the case of Government of Sindh and others v. Raisa Farooq and others 1994 SCMR 1283 the Honourable Supreme Court has explicitly held that even when a person is arrested on the basis of a criminal charge by the police, requisite information must be laid before the Court to show that there are reasonable ground for believing that the detenu is involved in the crime that he is charged with. Indeed under section 54 of the Criminal Procedure Code a Police Officer is competent to arrest a person in respect of whom there is some reasonable basis to suspect his involvement in a cognizable offence. Nevertheless, as held by a Divisional Bench of this Court in the case of Muhammad Siddique v. Province of Sindh PLD 1992 Kar. 358:-- "But such a power can be exercised only in those cases where a Police Officer is possessed of some evidence indicating involvement of a person under four situation mentioned in section 55(1), Cr.P.C."
6. In Razia Perveen v. S.S.P., Multan 1992 PCr.LJ 131 a similar view was taken by the Lahore High Court in the following words:-- "In order to act under this section there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence any arrest of the citizen in reckless disregard of the condition imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relating rules."
7. Against the above legal position and in the absence of any material whatsoever even remotely suggesting the detenu's involvement in Crime No,22 of 1996 there can be no possible escape from the conclusion that his arrest and detention when ever effected was patently without lawful authority and of no legal effect and was not even sought to be seriously defended by the respondents. At the same time while the petitioner and the detenu consistently maintain that the latter was arrested on a night of October 13, and kept unlawfully in the police lock-up, the explanation offered by the respondent No,4 can, to say the least, be hardly given any credit. In the first place his contention in the affidavit that the detenu was also sitting when the Deputy Registrar arrived at the police station is contradicted by the Deputy Registrar's Report Wherein he found the detenu in the lock-up alongwith certain other persons. Mr. Sattar Kazi emphatically argued that the petitioner and the detenu had arrived at the police station only a short while before the arrival of the Deputy Registrar but was unable to explain why the petitioner in such case could anticipate the event and dispatch a telegram on a previous day specifically alleging the factum of detention in police lock-up. Obviously even if the petition intended to visit the police station on 16-10-1997 he could not anticipate at what time, on an earlier date i,e, 15-10-1997 the Court would pass orders on his telegram or when a designated officer would visit the police station. Indeed in attempting to foist the petitioner and the detenu with prior knowledge of possible arrest the respondent No,4 has given out the story of having visited the detenu's house and having met the .Petitioner on 13-10- 1997 but has not even been able tc corroborate the factum of such visit by reference to his own station diary. In the circumstances, no credit whatsoever can be attached to his statement. To cover up his illegal action he has made a false statement.
8. Mr. Umeruddin Qureshi, learned counsel for the petitioner contended that it was proper for this Court, in the circumstances, to direct that a criminal case be registered against the S.H.O. And other delinquent Police Officer. He referred to decisions of the Lahore High Court in the cases of Rehmat Bibi v. Station House Officer and another 1992 MLD 104, Bashir-un-Nisa v. S.H.O. 1992 PCr.LJ 948, Abdul Jabbar v. S.H.O. 1991 PCr.LJ Note 162 p.117 and Liaquat Ali v. Muhammad Saleem 1991 PCr.LJ 1322. In all these cases which came up before the Court through applications under section 491, Cr.P.C., the detenus were found to be kept in unlawful custody and apart from setting them at liberty their Lordships directed that criminal cases be registered against the delinquent Police Officer and be investigated by Senior Officers. In the case of Rehmat Bibi, specific directions were issued by S.M. Zubair, J. To the effect that the accused Police Officers be taken into custody forthwith as required by law and they should be placed under suspension pending litigation.
Indeed the same view has been taken in the case of Razia Perveen v. S.S.P., Multan 1992 PCr.LJ 131:-- "In order to act under this section there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence any arrest of the citizen in reckless disregard of the condition imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relating rules."
9. A Division Bench of this Court in the case of Muhammad Siddiq v. Province of Sindh PLD 1992 Kar.
358 also observed that when a Police Officer arrest a person under a "blind F.I.R." (where does not disclose the identity of the offender) and is unable to place any material which could reasonably connect the accused/detenu with the offence for which he is charged, not only such arrest is unlawful or arbitrary but even such Police Officer cannot claim any protection under the law and could be punished for excesses. In view of the above the answer to the second question is clearly in the affirmative and directions can be issued for registration and investigation of criminal offence.
10. As to the question of monetary compensation, however, we regret to say that we did not receive much assistance either from the counsel for the parties or the learned A.A.-G. We are indeed aware that in certain cases of similar nature i,e, Faqir Muhammad v. S.H.O. 1992 PCr.LJ 1387, Ilyas Masih v.
Raja Zaffar Iqbal PLD 1992 Lah. 220 and Muhammad Ebrahim v. S.H.O. 1990 PCr.LJ 1717, after having found that the detenu was kept in unlawful custody by the Station House Officer of the police station some monetary payment was directed to be made to the detenu by way of costs. In each of the first two cases Rs,2,500 respectively were awarded as costs. In the case of Muhammad Ebrahim the Court directed the S.H.O. And the Sub-Inspector to pay Rs,2,000 each to the petition for violation of his fundamental right guaranteed by Article 9 (protection against unlawful deprivation of liberty) and Article 14 (inviolability of dignity of man) guaranteed by the Constitution. In the case of Muhammad Din v. District Magistrate 1992 MLD 107 special costs in the sum of Rs,3,000 were awarded personally against the District Magistrate, Narowal for passing an order of preventive detention without proper application of mind and in dereliction of duty contemplated by Article 5(2) of the Constitution. However, and we say so with great respect, that since these judgments do not contain any elaborate discussion on legal principles and the matter being one of substantial public importance we decided to examine the question whether monetary compensation could, and if so on what basis, be granted to a victim of unlawful or mala fide detention in proceedings like the present one in some detail.
11. Apart from a civil action in tort to recover compensation for unlawful detention or malicious prosecution, legal system has always recognized the concept of instant compensation to the victim without having to resort to separate legal proceedings. Sections 35-A and 95, C.P.C. Speak of compensatory costs for vexatious proceedings and compensation for expense or injury to the victim of arrest or attachment effected on insufficient grounds. Section 250 of the Cr.P.C. Enables a Magistrate to award compensation to the extent of Rs,25,000 to person charged on the basis of a false accusation upon his acquittal. Such compensation is in addition to and not in derogation of any civil or criminal liability which the wrong doer might have incurred. As a matter of fact even under the British Law upon which our legal system is based provided for instant compensation if a detention was found to be invalid under sections 4 and 5 of the Habeas Corpus Act, 1679 (Halsbury's Statutes of England, Third Edition Vol. VIII page 880). Under section 9 even a Judge unlawfully failing to issue a writ of habeas corpus was liable to pay L500 to a detenu. It is a different matter that such relief fell into disuse with the passage of time. Nevertheless, today this right to recover compensation is internationally recognised. Article 9(5) of the International Covenant on Civil and Political Rights 1966 reads as under "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation".
12. The question that we are confronted with, however, is whether apart from the remedy that the detenu may have to collect damages through a Civil Suit or a direction that can be given for registration of criminal cases against .Police official responsible for his unlawful detention, whether any monetary compensation can be granted under the power available to this Court under section 491, Cr.P.C. Or Article 199 of the Constitution. The relevant provision of the Cr.P.C. Read as under:-- "S. 491.-- Power to issue directions of the nature of habeas corpus.-- (1) Any High Court may, whenever it thinks fit, direct--
13. ' that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
14. ' that a person illegally or improperly detained in public or private custody within such limits be set at liberty; 15.
13. A perusal of the above statutory provision would show that the jurisdiction to pass certain specific kind of orders in respect of a person held in custody has been conferred upon this Court.
Indeed under clause (b) the Court can pass an order directing that the detenu be set at liberty and similarly specific kind of orders can be passed under clauses (c) to (f) which follow. We are, therefore, inclined to take the view that only such orders could be passed which were authorised by any specific clause in the aforesaid section. However, it is arguable that clause (a) which enables the Court to direct that a person within the territorial jurisdiction of the Court be dealt in accordance with the law is wide enough to embrace a direction requiring payment of compensation if the law provides for such payment. Nevertheless since we have not been able to lay our hands on any reported precedent and have not had the benefit of adequate assistance from the Bar we would refrain from expressing any final opinion.
14. The jurisdiction of this Court under Article 199 of the Constitution, however, appears to be placed on a different pedestal. In this context it would be appropriate to discuss the above question in the context of the jurisdiction conferred by Article 199(1)(b)(i) (popularly known as the habeas corpus jurisdiction) and the jurisdiction to enforce fundamental rights conferred by clause (1)(c) of the same Article. Before discussing the contours of the respective jurisdiction conferred upon this Court by the aforesaid sub-clause (b) and (c) of sub-Article (1), it may be pertinent to reproduce the aforesaid Article which reads as under:-- Article 199.--- Jurisdiction of High Court.--- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) On the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order:
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II."
15. We are indeed aware that presently the High Court of England, in the exercise of the prerogative power to issue writs in the nature of habeas corpus ad-subjudicidem only deals with questions relating to legality of present detention of a person in custody and does not pass orders beyond directing his immediate release. In Bernando v. Ford 892 AC 326 the House of Lords held that a writ of habeas corpus could only be issued when the detenu was actually in the custody of the respondent, and even if he had illegally parted with such custody no relief in such proceedings could be granted. Consequently in Keshadev v. Emperor AIR 1944 PC 24, an appeal against the decision of the High Court upholding an order of preventive detention under the Defence of India Act was dismissed and the Privy Council refused to determine the legality of the detention order as the detenu had been released before the appeal came up for hearing before the judicial committee. We are also aware that, an impression to the effect that a "Habeas Corpus" petition under Article 199 of the Constitution abates immediately upon the release of the detenu exists in the minds of quite a few of our lawyers and in many cases, counsel for the petitioners themselves do not press petitions as soon as the detenu is released from custody. It is often presumed that the traditional limitations imposed by British Courts upon themselves would per se apply to exercise of jurisdiction by our Courts under Article 199 of the Constitution. Nevertheless we have not been able to find any judgment of our Courts where, the propositions emerging from the above impression and presumption, have been, after proper discussion and analysis, found to be legally correct or justifiable. In fact the case-law seems to point towards the opposite direction. The well-known cases of Ghulam Jilani v. State PLD 1967 SC 373 and State v. Ziaur Rehman PLD 1973 SC 49 were decided after the detention had expired or there was no intention to retake the detenu's into custody.
16. In the first place, it may be kept in view that the practice of confining the scope of relief in habeas corpus proceedings to mere release of a prisoner is presumed upon certain peculiar feature of British Law. A writ in the nature of habeas corpus could be issued to the goaler, i,e, the person who had physical custody of the detenu. Traditionally the scope of enquiry in such matters was extremely limited and a return, showing a warrant or order from a competent Court or Police Officer directing his detention was a complete answer to a writ. The legality or bona fides of the order had to be adjudicated upon in other proceedings. With the passage of time the scope of enquiry expanded but it is not necessary to dwell on it here. The fact, however, remains that even where the detention was mala fide, in most cases the wrong doer would be the person who ordered the detention and not the goaler in whose custody the detenu was kept. The Crown could do no wrong and until the passage of the Crown Proceedings Act, 1947, was not liable for the tortious acts of its servants. Hence compensation for wrongful imprisonment could only be claimed personally from such officer and perforce separate proceedings were necessary.
17. However, in jurisdictions where these features do not exist, Courts, despite following the British legal system and despite having borrowed the terminology of prerogative writs have found it possible to grant such relief in habeas corpus proceedings. In this context it may be pertinent to refer to the following observations of Chandrachud, C.J. Of the Supreme Court of India in the well- known case of Rudul Sah v. State of Bihar (1983) 4 SCC 141 = AIR 1983 SC 1086:-- "But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such art order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He filed a habeas corpus petition in this Court for his release from illegal detention. He obtained that, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass an appropriate order for the payment of compensation in this habeas corpus petition itself.
' We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may if so advised, file a suit to recover damages from the State Government. Happily, the State's Counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit of his claim to compensation was factually controversial, in the sense that a civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for this illegal detention a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In the circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation."
18. The above view was taken, despite the fact that under Articles 32 and 226 of the Indian Constitution, as was indeed that under section 223-A of the Government of India Act and Article 170 of the 1956 Constitution, the High Courts were empowered to issue certain specific writs i,e, mandamus, certiorari and habeas corpus etc. The scope of these writs was not defined but had to be gathered from the text books and decided English case. Therefore, while exercising such Constitutional jurisdiction our Courts confined themselves to limitation within which British Courts acted while issuing such writs can be gathered from a number of leading cases of the times.
Nevertheless after promulgation of the 1962 Constitution the position altogether changed. Article 98 of 1962 Constitution (which is in para materia with Article 199 of the present Constitution) dispensed with the terminology used by the British Courts and laid down self-contained propositions as to the substance of the power that could be exercised by the High Court in its Constitutional jurisdiction. The changed position has been clearly explained by a Full Bench of the West Pakistan High Court in the case of Mehboob Ali Malik v. Province of West Pakistan and another PLD 1963 Lah. 575 and the Honourable Supreme Court in the case of Mian Jamal Shah v. Election Tribunal PLD 1966 SC 1.
19. The Honourable Supreme Court, in respect of the scope of jurisdiction relating to examining the validity of detention (popularly known as habeas corpus jurisdiction) has repeatedly asserted that such scope is not confined to the limitations of English Law and is much wider. In Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313 it was observed:-- "This Court has pointed that whatever may have been position under the English Law or the Government of India Act the position under the present Constitution of Pakistan is wholly different.
19. In Government of West Pakistan v. Begum Agha Khan Abdul Karim Shorish Kashmiri PLD 1969 SC 14 it was held that the jurisdiction of the High Court under Article 98(2)(b)(1) was radically different from that under Article 170 of the 1956 Constitution and Article 226 of the Indian Constitution. It was further held the power of the Courts were untrammeled by the Formalities or technicalities of section 491, Criminal Procedure Code or fettered by the procedure of the writ of habeas corpus or rules laid down under the various habeas corpus Acts. The same views have been substantially reiterated in the recent pronouncement of the apex Court in Muhammad Azam Malik v. S.D.M.
Preedy PLD 1989 SC 266 and Province of Sindh v. Raisa Farooq 1994 SCMR 1283.
20. In view of such authoritative pronouncement of the Honourable Supreme Court we have no doubt in our mind that the scope of the power of redress available to this Court can only be determined with reference to the text of relevant Constitutional provision and is not hedged by the technicalities of British precedents or provisions of Sub-Constitutional legislation. Now a comparison between the provision of clauses (a) and (b)(i) of Article 199(1) may be appropriate.
This difference was highlighted by the Honourable Supreme Court in the aforementioned case of Begum Abdul Karim Shorish Kashmiri in the following words:-- "Whilst in the first case the direction is limited to the make of an order for doing or refraining from doing that which the law permit or does not permit, as the case may be, in the case of detention the High Court is enjoined upon to 'satisfy itself' that person is not being held in custody (a) without lawful authority or (b) in an unlawful manner."
21. Evidently while under clause (a) a Court is empowered to pass orders of specific nature, the Constitution-makers, in their wisdom did not specify what particular orders were to be passed in case the Court was not satisfied as to the legality of detention. Obviously the jurisdiction has not been conferred only for the purpose of recording an academic finding as to the Court's satisfaction or otherwise. It is undisputed and has been repeatedly held that an appropriate consequential order directing that the detenu be set at liberty can always be passed by the Court and indeed in a large number of cases such order may be the only appropriate order. Nevertheless, the only appropriate inference that can be drawn is that when the Constitution-makers did not specify the nature of consequential order in the event of a finding that the detention was unlawful, they advisedly left it to the discretion of the High Court to pass any appropriate consequential order.
22. Perhaps payment of compensation to a detenu in habeas corpus proceedings is no longer invoked in Britain for the reasons that the British legal system creates a pronounced distinction between public and private wrongs and a claim for compensation is only treated as a private law remedy. Under the principles of Islamic law, however, which are, according to several recent pronouncements of the Supreme Court required to be applied by the Courts in all interpretative process, this distinction is not so pronounced. A victim of a penal offence can be granted Diyyat by a Court in criminal proceedings without having to file civil suits. We are, therefore, clearly of the view that the provisions of the Constitution ought to be so interpreted in the light of Islamic law as to make the liberties and rights of citizens effective and meaningful to the people and no restrictions not spelt out from the language of the Constitution can be inferred on the basis of the foreign precedents or sub-Constitutional legislation.
23. Another important aspect of the controversy is that apart from a civil wrong of unlawful or false imprisonment or the crime of wrongful confinement that might have been committed there has also been a violation of the fundamental rights of the detenu' guaranteed to him, inter alia, by Articles 9 and 14 of the Constitution. Article 9 provides that no person shall be deprived of live or liberty except in accordance with the law. Article 14 states that dignity of man is inviolable. The duty to enforce these fundamental rights in our Constitutional system has been cast upon the superior judiciary, i,e, the High Court under Article 199(1)(c) as well as the Supreme Court, (in cases of general public importance) under Article 184(3). In this respect Constitutional stand is somewhat different from that of the United States where the Congress has been authorised to enforce the rights conferred by the 14th and 15th amendment. Our Constitution makers, however, left it to the judiciary to evolve tools for giving effect to these rights by empowering the Courts to make order or directions under Article 199(1)(c). "as may be appropriate for the enforcement of any of the fundamental rights."
24. The scope and amplitude of such power has been elaborately explained by the Honourable Supreme Court in the case of Darshan Masih PLD 1990 SC 513, in the following words:-- "(ii) The 'nature' of the orders which can be passed in such cases is also indicated in Article 184(3); that is: such as can be passed under Article 199. Even if for the time being it be assumed that the 'nature' of the order is confined only to the Orders under sub-clause (c) of Article 199(1) and not to the other Orders under 'Article 199' it would be seen that any conceivable just and proper order can be passed in a case like the present one. The principle of extension involved in the relevant phrase used in Article 199(1)(c); ' an order giving such directions to any person or authority --- as may be appropriate for the enforcement of the ---' cannot be abridged or curtailed by the law. As to how far it cannot be extended, will depend upon each case."
25. The important question to be considered now is, whether in the context of the wide discretionary power available to the Court to ' forge tools' for the enforcement of fundamental rights of citizens an order for payment of compensation to a victim of violation of fundamental rights can be made. Though apart from the cases 'listed in para. 10 above, no direct precedence from our Courts on this issue appears to be available, a great deal of guidance can be obtained from cases decided by apex Courts in some countries with Constitutional Systems similar to ours.
The concept of judiciary enforceable fundamental rights does not exist in England. However, with respect of Constitutions of former colonies where such rights have been guaranteed by the Constitutions and can be enforced by the Courts even British Judges adorning the Judicial Committee of the Privy Council have proceeded to hold that monetary compensation by way of redress ought to be granted by Constitutional Courts empowered to enforce such rights. It has further been held that payment of such compensation is a public law duty of the State enforceable by Courts empowered to provide redress against violation of the fundamental right irrespective of an independently of the remedies under private law as may be evident from a consideration of the cases discussed below.
26. In Jaundoo v. Attorney-General of Guyana 1971 AC 972 = (1971) 3 WLR 13 the Governor of Guyana had directed that a new road be constructed on part of appellants' land. This direction was made under statutory authority prior to the enforcement of the Constitution and the statute did not provide for payment of compensation though in practice ex-gratia payment used to be made by the Government. However, before the land was actually taken over the 1966 Constitution was enforced which guaranteed a fundamental right prohibiting compulsory acquisition of property without adequate compensation and also enabled citizens to seek redress from the High Court which was empowered to make such orders, issue such writs and give such directions that it may consider appropriate for the purpose of enforcing or securing the enforcement of any provisions of Article 417 (fundamental rights). The appellant moved the High Court seeking injunction against acquisition of property without compensation but the proceedings were dismissed on technical grounds and the appeal to the Court of appeal also failed. In the meantime, the road had been constructed. In a further appeal before the judicial Committee of the Privy Council their Lordships held that in view of the changed circumstances injunction could not be granted but monetary compensation could always be awarded by way of redress for violation of a fundamental right.
27. The Constitution of Trinidad and Tobago also contains similar provision. In the case of Maharaj v. Attorney-General of Trinidad and Tobago 1979 AC 385 the appellant, a Barrister was committed to prison for seven days on a charge of contempt. After serving the sentence he preferred an appeal before the Court of Appeals and also obtained leave to appeal from Judicial Committee of the Privy Council which quashed the order of committal on the ground that there had been a fundamental failure of natural justice inasmuch as he was not apprised of the allegations against him. He invoked the original jurisdiction of the High Court permitting redress against violation of fundamental freedom guaranteed by the Constitution but the Court, as well as the Court of Appeals rejected his claim holding that a Judge enjoyed immunity in respect of actions taken in his official capacity. The Judicial Committee of the Privy Council, however, reversed the decision. In his leading judgment Lords Diplock held:-- "It was argued on behalf of the Attorney-General that section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v.
Attorney-General of Guyana. Reliance was placed on the reference in subsection to 'enforcing or securing the enforcement of any of the provision of the foregoing sections' as the purpose for which orders could be made. An order for payment of compensation it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordship's view and order for payment of compensation when a right protected under section 1 has been contravened is clearly a form of redress which a person is entitled to claim under section 6(1) and may well be the only practical form of redress as by how it is in the instant case."
' Repelling the contention that a Judge enjoyed immunity from claim arising out of his official acts, it was held, by majority that the appellant had not sought a private law remedy in tort in respect whereof the Judge was indeed immune from legal action for damages. However, he had sought enforcement of his constitutional rights which was in the nature of a public law remedy and the State was liable to compensate him in monetary terms for the loss of liberty that he had sustained on account of deprivation of liberty in violation of the command of the Constitution.
28. In Rudul Sah v. State of Bihar (1983) 4 SCC 141) the Supreme Court of India directed the Government of Bihar to pay Rs,30,000 to the detenu by way of an interim measure subject to this right to recover appropriate damages from the State and its erring officers after holding:- "Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of Telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation."
29. In Sabastian M. Hingoray v. Union of India and others AIR 1984 SC 1026 a writ of habeas corpus was not obeyed by the Government and instead of producing the detenu a false return was filed.
The Supreme Court held that the same constituted contempt. Nevertheless, it decided not to propose any imprisonment or fine but directed, keeping in view the torture, agony and mental oppression suffered by the wives of the two detenus, the Government of India and the Government of Manipur to pay Rs,1 lac each to the said wives by way of exemplary costs.
30. In Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 677, the petitioner, an opposition M.L.A., was arrested on September 10, 1985, and released on bail by an order of the Sessions Court on September 16. Finding the arrest mala fide and the remand orders either collusive or causal the Supreme Court of India, entertaining a Constitutional petition under Article 32, held that:-- Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar and Sebastian M. Hongray v. Union of India. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his Constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh and sum of Rs,50,000 within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh."
31. In the case of Nilabati Behera v. The State of Orissa and others ((1993) 2 SC Cases 746, which was a case of death in police custody, the concept of monetary compensation for violation of fundamental rights was examined in some detail. After discussing the above cases, Verma, J.
Subsequently Chief Justice of India) held: "It follows that ' a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right."
' In a concurring opinion d, J. Added:-- "The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ' monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law . "
32. The same principle has been acknowledged by the Supreme Court of Sri Lanka. In the case of A.K. Velmurugo v. Attorney-General and another, decided in 1981 and reported in the compendium'
Decisions on Fundamental Rights Cases' at page 180, the petitioner had complained of unlawful detention and torture at the hands of an Army Officer and invoked the original jurisdiction of the Supreme Court under Article 126 of the Constitution for enforcement of fundamental right. The majority of the five member Bench came to the conclusion that the petitioner had been unable to prove his allegation and dismissed the petition accordingly. Sharvanda, J. Joined in by Ratwatee, J., however, came to the opposite conclusion. In his minority opinion Sharvananda, J. Observed: "The essence of a fundamental right lies in its enforceability against the organs of the State. The freedoms and rights enshrined in Chapter III of the Constitution are, but emply formulation if they may be infringed upon with impunity without incurring any sanction... Under the Constitution the Supreme Court is the Court charged with the duty of safeguarding the fundamental right and liberties of the people by the grant of speedy and efficacious remedy under Article 126 of the Constitution for the enforcement of such rights."
' It was further observed that it is just and equitable that the State should pay fair compensation for the distress humiliation suffering undergone by the petitioner and consequently the State was directed to pay an amount of Rs,10,000 to the petitioner and also take appropriate disciplinary action against the concerned officer for misconduct.
33. Later decisions tend to show that the Supreme Court of Sri Lanka has lately as a matter of almost consistent practice granted monetary compensation to victims of torture or illegal detention at the hand of law enforcing agencies of the State in its jurisdiction to enforce fundamental right under Article 126 of the Constitution. In the case of Nallana Yagam v. Gunatilake and others (1987) 1 SLR 293, the State was required to pay Rs,5,000 to the petitioner for violation of his fundamentals right by producing him in Court after 3 days of his arrest. In the case of Amal Sudath Silva v. Inspector of Police (1987) 2 SLR 119) the State was directed to pay Rs,10,000 on account of torture having been afflicted upon the petitioner while in custody and to conduct an enquiry against the police officials responsible for such torture. In Piyasari v. Fernando (1988) 1 SLR 173, the State was directed to pay compensation of Rs,500 each to the petitioners, who were detained in a police station for a few hours without being apprised of the grounds of their arrest.
34. From the consideration of the decision recorded by the highest fora in countries where the Constitution conferred similar powers as are available to Courts in Pakistan, it is evident that monetary compensation to a victim of violation of fundamental rights can always be awarded by the Court in proceedings for enforcement of such right. The need for evolving this remedy, for the purpose of making fundamental rights effective and meaningful has always been felt in our country. In this context we are reminded of the following observation of Saiduzzaman Siddiqui, C.J.
(as his Lordship then was) in an unreported judgment of a Division Bench of this Court in the case of Rabia Bai v. Province of Sindh (C.P. No,375 of 1991). After recording how the liberty of a citizen was maliciously invaded through passing of successive order of detention and involving him in false cases his Lordship observed: "We sincerely feel that... To deter officers having vast powers... From depriving a citizen of his .Right of freedom and liberty guaranteed under the Constitution, through indiscriminate exercise of such power, the Government should consider promulgation of special laws authorising superior Courts while declaring the actions of functionaries of such Government as without jurisdiction, mala fide or malicious, to award suitable punishment and damages simultaneously against the officials found guilty of exercise of power in such indiscriminate manner."
35.. Indeed the question that such remedy could be granted by the Court in the exercise of its wide powers to pass any appropriate order for the enforcement of fundamental rights was neither raised before the Court nor were the precedents from contemporary jurisdictions brought to their Lordships attention, Nevertheless in view of the amplitude of the jurisdiction of this Court explained by the Honourable Supreme Court in Darshan Masih's case cited above and the precedents discussed above, we are clearly of the opinion that in its jurisdiction to enforce fundamental rights this Court is competent, in appropriate cases, to direct that monetary compensation be paid to the victim of violation of fundamental rights and that such compensation is payable by way of a public law duty of the State and its officers which is independent of the private rights that a citizen may have to claim damages through ordinary proceedings.
36. Not being hedged by the limitations imposed through adoption of the terminology of English writs the power of this Court to grant any appropriate form of redress is apparently even wider than its counterparts in India. The only clog on its jurisdiction, however, that can be spelt out from the language of Article 199 is the existence of an alternate remedy. Indeed it may well be urged, that if compensation for unlawful deprivation of liberty could be obtained under the ordinary law through normal proceedings i,e, a civil suit then of course the extraordinary jurisdiction under Article 199 could not be invoked for obtaining the same relief. Prima facie the proposition does not appear altogether specious, but upon a closer scrutiny it must be repelled for more than one reason.
37. In the first place, as is evident from the several precedents cited above, the compensation that can, and in an appropriate case ought, to be made payable under the Constitutional jurisdiction for violation of a fundamental right is a liability in public law which is independent of and altogether different from a private law remedy that a citizen may have in tort. While determining the quantum of damages in a Civil suit the Court may take into consideration the amount the plaintiff might have received for violation of his fundamental rights awarded by the Court in its Constitutional jurisdiction. This, however, does not mean that the two remedies are mutually exclusive or substitutes for each other. At the same time, as the Honourable Supreme Court has held in the celebrated case of I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041 when an important question relating to the enforcement of a fundamental right is involved, the factum of existence of an alternate remedy becomes insignificant.
38. Secondly the contours of the expression "alternate remedy" occurring in Article 199(1) are well- settled through several pronouncements of superior Courts and need not be recapitulated. It is settled law that such remedy must be equally efficacious in terms of time and expense. Therefore, even if compensatory relief under Article 199 is to be equated with or considered a substitute for a suit for damages for false imprisonment, it will have to be seen whether the remedy by way of a civil suit is equally efficacious so as to bar the entertainment of a civil suit.
39. Now it cannot be disputed that other things being the same, a remedy by way of a civil suit cannot be considered more efficacious in either terms of time and expense, as compared to a habeas corpus petition, which is invariably accorded priority by a High Court and upon which no court-fee is payable. Courts in this subcontinent have not considered remedy by way of a suit for compensation for the tort of false imprisonment, available under the ordinary law, as an effective means to protect the fundamental right of liberty of citizens guaranteed by the Constitution. The observations of Chandrachud, J. Quoted in para. 17 and those of Saiduzzaman Siddiqui, J. In para. 34 above bear ample testimony to the above. At the same time, however, it is equally well-settled that whenever disputed questions of fact are involved, the High Court does not normally resolve them under Article 199 but requires them to be adjudicated by civil Courts. This is not because the High Court has no jurisdiction to decide questions of fact or record evidence, but because, as established through a chain of authorities, remedy by way of a civil suit is considered more efficacious for resolution of factual controversies entailing recording of evidence. The position, however, would be altogether different when the main controversy could be resolved on the basis of undisputed facts or material on record and is primarily based on questions of law. In this context one may refer to the cases of Abdul Jabbar v. Abdul Waheed Khan PLD 1974 SC 331, Salahuddin v.
Frontier Sugar Mills PLD 1975 SC 244, Mahbub Ali Malik v. Government of Pakistan PLD 1963 Lah. 575 and Abid Hussain v. Government of Sindh PLD 1984 Kar.
269.
40. If needs to be remembered that in a petition calling in question the validity of detention of any person, even if we leave the question of a monetary compensation aside for a moment, the Court must record a finding of fart, whether upon taking evidence, examining documentary material or on the basis of admitted facts, for the purpose of satisfying itself whether the detention was lawful or whether the detenu should be set at liberty. The extent of factual enquiry would vary from case to case. For the purpose of deciding whether simultaneous monetary relief should be granted, the test in our opinion, according to well-settled principles would be, whether such relief could be granted only upon a further enquiry into facts or even without such enquiry. In the former case the appropriate remedy for an aggrieved person would be to file a suit before a civil Court and establish his claim through evidence, in the latter, however, such recourse would only amount to duplication of proceedings and prolonging his agony and could certainly not be termed as an alternate efficacious remedy.
41. Under the ordinary law, in the tort of false imprisonment, as distinguished from malicious prosecution, malice of the defendant need not be proved. Unlawful imprisonment is actionable per se and the moment detention is found to be invalid, the detenu becomes entitled to recover damages without further proof. Indeed the measure of special damages, i,e, compensation for losses actually sustained by the plaintiff owing to unlawful acts of the defendant can only be awarded upon proof. General damages, however, i,e, compensation for pain and suffering etc. Can be awarded without any proof. There is no yardstick for determining their quantum and are awarded in the discretion of the Court, and as observed by Kaikaus, J. In the case of Nawab Din v.
Muhammad Yousuf PLD 1957 Lah. 283 "according to the rule of thumb". Again mala fide and arbitrary acts of the Government also fall within the limited category of cases where exemplary or punitive damages can also be granted. The quantum of such damages would also depend upon discretion of the Court exercisable on the basis of its view of the conduct of the detaining officer and would not require any elaborate investigation of facts.
42. Keeping in view the above legal position, we are of the view that when a victim of unlawful imprisonment is entitled to recover general damages and exemplary damages without leading any evidence, there is no reason why he should be denied similar relief when his guaranteed fundamental rights have been infringed in extraordinary Constitutional remedies designed for enforcement of such rights. As such we would hold that whenever a Court finds the detention of a citizen to be unlawful and mala fide, it can, apart from directing his release, pass any suitable order including one for payment of such amount that it may consider appropriate by way of compensation for distress and humiliation on account of deprivation of liberty and also to serve as a deterrent for those who misuse public power and invade the liberties of citizens in flagrant disregard of the law. We would, however, add that compensation by way of any special losses that such person might have incurred owing to his detention cannot be granted in these proceedings and he can recover the same only through ordinary remedies provided by law.
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.
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 U.S. 239 the Supreme Court of U.S.A. 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".
44. Even if the liability to pay compensation is not treated as independent public law duty but is brought down to the level of tortious liability under the private law, we regret that in view of the legal position operating in Pakistan the State cannot be altogether absolved. It may be kept in view that the principle of sovereign immunity against tortious act of its servant which used to operate in English law and which had been adopted in India with respect to the State in case of Kasturi Lal v.
The State of U.P. AIR 1965 SC 1039 is not part of the law in Pakistan. In Pakistan v. Muhammad Yaqoob Butt PLD 1963 SC 627 the concept of tortious liability of the Government in relation to act of its servants was elaborately considered by the Honourable Supreme Court. It was held that since enactment of the Crown Proceedings Act in 1947, the law as to sovereign immunity has become obsolete even in England and, subject to certain exceptions contained in the Act, the Crown was also vicariously liable like any other employer in respect of tortious act of its employees. It was further held that in any case where the State had taken benefit of property illegally detained by its servant or where it had ratified the tortious act of its employees, it was clearly liable for such acts.
The same principle was applied by this Court in the case of Sardar Muhammad Ali and others v.
Pakistan PLD 1961 Kar. 88 where a suit for false imprisonment arising out of illegal order of detention passed by the Additional District Magistrate was decreed against the Federal Government as a detention order had been ratified by the Administrator Karachi. This decision was upheld by the Division Bench in the case of Government of Pakistan v. Sardar Muhammad Ali PLD 1965 Kar.
1.
45. On the question as to what amounts to "ratification" it may be appropriate to refer to a D.B.
Judgment of Lahore High Court, in the case of Muhammad Nawaz v. Province of West Pakistan PLD 1975 BJ 11. In this case the appellant had entered into a contract with the Railway, whereby a bogie carrying a number of passengers were destined to travel from Sargodha to Bahawalpur to attend a marriage was required to detached from the train at Shorkot Road Railway Station and to be attached to a Khanewal bound train. Though the bogie reached the Shorkot Road Station the Assistant Station Master failed to order its attachment to the Khanewal bound train resulting in delay in arrival at Bahawalpur, causing, apart from material losses, pain suffering and humiliation to the appellant. The Court held that mere fact that the Government, despite a finding in an inquiry to the effect that the action of the Assistant Station Master was unwarranted and in breach of the contract, failed to take any action against the said officer, amounted to ratification and as such the Government was bound to compensate the appellant.
46. In view of the above we are of the opinion that as long as a State functionary violates the fundamental rights of a citizen, has acted illegally or in excess of lawful powers under the pretended colour of State authority, the State was equally bound to compensate the victim unless it is able to demonstrate that prompt action was taken against such functionary for the excess committed by him. We are indeed aware that it would not always be fair to burden the taxpayer for excess committed by Government functionaries which are mala fide and in clear violation of the powers lawfully conferred upon them. At the same time apart from the strict liability in law, we think that the fundamental rights guaranteed to a citizen would become entirely illusory if the State extricates itself from all liabilities and requires the victim to pursue his claim against the delinquent functionary purely as a private dispute. Moreover if public officials are allowed to exercise wide powers despite the fact that they have been found to have invaded the guaranteed right of citizens through reckless misuse of such powers it could hardly be said that the State is attempting to protect the rights guaranteed to citizens by the Constitution and we see no reason why inaction on the part of higher officials against such functionaries should not be treated as ratification of unlawful acts. Consequently we would hold that both the State as well as the concerned officer would be jointly and severally liable to compensate the victim of unlawful action.
47. Fortunately the burden on the tax-payer relieved on account of certain provisions which already exist in our legal system. Under Article 199(1)(c) a direction can be made by the Court not only to Government but to any person performing any function or exercising any authority within the territorial jurisdiction of the Court. Moreover, under the Civil Servant (Efficiency and Discipline)
Rules, the Government can always, apart from taking disciplinary action, recover the amount of any loss sustained by it on account of a wrongful act of a civil servant. However, we have not been able to discover any clear guidelines, even under the law of torts, upon which the quantum of compensation (general damages) for unlawful imprisonment is made and reported cases show that they are determined in the discretion of the Court. We would, therefore, hold that in such cases, the Court may award any amount of compensation that it considers reasonable to provide redress to the victim against deprivation of his fundamental right to liberty and dignity.
48. Moreover, it may be recalled that the English law, upon which our laws of tort is based, allows the concept of exemplary punitive or deterrent damages in a very limited category of cases.
"Oppressive, arbitrary or unconstitutional action by servants of the Government", as held by Lord Devlin in the well-known House of Lords decision in Rookes v. Bernard 1964 AER 364 at 410 is one of those categories where punitive damages can be granted.
49. The same rule appears to have applied by a Division Bench of this Omit in Government of Pakistan v. Sardar Muhammad Ali PLD 1965 Kar. 1 where, after considering several precedents, late Wahiduddin Ahmed (as his Lordship then was) speaking for the Bench observed:-- "On the view taken in the last mentioned authority it is not possible to hold that in a case of false imprisonment nominal damages can adequately compensate be aggrieved party. In such case on the other hand, in order that the authorities might know that they could not proceed illegally, as a rule substantial damages should be awarded. In cases where Government officers acted bona fides, the only possible consideration that can be shown would be that exemplary damages are not awarded. (Emphasis added).
50. Indeed from the cases decided by the Supreme Court of India cited above, particularly those of Rudul Sah and Nilibati Behari, it is clear that monetary compensation was granted on exemplary or punitive basis. The same can also be inferred from the decision of the Lahore High Court mentioned in para. 11 above. We are, therefore, of the opinion that the monetary relief granted may not only be compensatory but also deterrent or penal.
51. In addition to payment by way of substantial relief we are also of the opinion that when a person unlawfully deprived pf liberty has to approach the Court for relief and the Court finds his detention to be mala fide and unlawful he is entitled to costs. Depending on the circumstances, of each case such costs c could be (i) actual (ii) Compensatory (iii) Penal or deterrent. In Muhammad C Akram v. Farman Bi (PLD 1990 SC 28) the distinction between actual and compensatory costs was clearly explained with reference to sections 35 and 35-A, C.P.C. At the same time the following observation in Aamer Raza's commentary of C.P.C. Were explicitly approved.
"Even under section 35-A costs are compensatory and are not awarded as penalty against an unsuccessful party."
52. In the subsequent case of Khurshid Ahmed Naz Faridi (1993 SCMR 639) the concept of penal costs required to be personally paid by Government official transgressing the limit of their power was discussed and considered. Speaking for the Bench of Salim Akhtar, J. (as his Lordship then was) observed:-- "The object of granting such costs may be two-fold. One, to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to unnecessary litigation and harassm ent. The other objection is to penalise a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or ulterior motive. Where a person acting in his official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards costs to be paid by him personally, it will be proper exercise of discretion."
53. It is evident from the aforesaid judgments, of the Honourable Supreme Court that apart from actual costs incurred a petitioner may also be entitled to compensatory costs under section 35-A, C.P.C. In addition thereto, however, he may also be entitled to penal or deterrent costs. The quantum of costs awarded, whether compensatory or penal, may be determined by Court in its discretion. It might suffice to hold that in cases like the present one aggrieved person may be entitled to all three kinds of costs and the concerned official rather than the Government itself may be burdened with the liability to pay penal costs.
54. From the above rather long drawn discussion we would like to summarise our conclusion on the legal questions as under:--
(i) When a Court finds that a person in custody was detained without lawful authority or in an unlawful manner, it could apart from directing his release, pass any appropriate incidental or consequential order as it may consider proper in the interest of justice under Article 199 of the Constitution.
(ii) That the jurisdiction of this Court to grant relief under Article 199(i)(b)(i) or Article 199(i)(c) is not hedged by the limitation of English precedents or provision of Sub-constitutional legislation.
(iii) In case such detention prima facie amounts to a penal offence the Court could direct that the case against a person responsible for such unlawful detention may be registered and tried in accordance with the law:
(iv) An order merely directing the release of a person from custody upon finding his detention illegally and condoning the violation of his most cherished fundamental rights of liberty and dignity in defiance of the requirements of law and the Constitution may not be the appropriate relief to which such person may be entitled. Under the wide powers available to this Court under Article 199 of the Constitution it would be proper to award monetary recommendation to a victim of violation of fundamental rights.
(v) The liability to pay such compensation is in the nature of a public law duty as distinguished from the private law right of a citizen to claim damages in tort and can be enforced in proceedings under Article 199 of the Constitution. The amount of compensation paid or payable under these proceedings, however, will be taken into account by a Court subsequently trying a suit for damages.
(vi) That the amount of such compensation would be determined by the Court in its discretion keeping in view the principle applied in awarding general damages in case of false imprisonment and exemplary damages in cases of mala fide conduct of public officer under the law. Special damages sustained by a victim of unlawful imprisonment, however, can only be proved through ordinary civil suit. In accordance with the decision of this Court such compensation ought to be substantial and not nominal.
(vii) The liability to pay such compensation would devolve jointly and severally upon the State as well as the public officials responsible for illegally depriving a citizen of his liberty. The State/Government however, would be entitled to recover the amount paid/payable to the detenue from such officials for having caused wrongful loss to the Government through misuse of powers under the relevant Service Rules applicable to such official instead of burdening the tax payer.
(viii) In addition to the above the petitioner/victim may also be entitled to payment of actual, compensatory or deterrent cost apart from actual costs of litigation calculated according to the applicable Rules. Compensatory costs may be awarded and the official responsible for illegal action may be personally burdened with the liability to pay exemplary or punitive costs in terms of the law declared by the Honourable Supreme Court.
55. It may now be considered that order should be passed applying the above legal principles to the facts of the present case. As observed earlier the detention of detenu Manzoor Mansoor in the police lock-up at Police Station 'B' section Latifabad, was patently unlawful. No basis to cause a reasonable suspicion in the mind of S.H.O. Aijaz Ali Kaimkhani or any other police official as to his involvement in a cognizable offence has been shown. Though the aforesaid S.H.O. Has filed an affidavit, he has failed to place any material before the Court which could even remotely suggest that there was some basis for his suspecting that the detenue was involved in a penal offence. In view of the law declared by this case in Muhammad Siddique v. Province of Sindh (PLD 1992 Karachi 358) and by the Honourable Supreme Court in Province of Sindh v. Raeesa Farooq (1994 SCMR 1283), it was his duty to place the material upon which he had acted before the Court to satisfy the Court that such action was lawful. There can be no escape from the conclusion that the arrest and detention of the detenue was brought about in gross abuse of powers conferred by law and was at least mala fide in law if not in fact. The fundamental right of the detenue guaranteed under Articles 9 and 14 of the Constitution were clearly violated.
56. We could have directed registration of cases against the S.H.O. And others who might have been responsible for bringing about this unlawful detention but are refraining from doing so. Once we have recorded the finding to the effect that such detention was illegal and investigation into the same facts would be neither a useful nor desirable, it would only delay the matters. On the other hand we are of the view that monetary compensation to the detenue may be more an efficacious mode of relief. Indeed such relief has not been sought either in the telegram or in the petition.
Nevertheless, the respondents cannot claim any prejudice because they were given proper notice to address the Court on the question of monetary compensation. It is settled law that the Court can always moulds the relief and grant such relief which might not have even been asked for provided it has the jurisdiction to do so. If authority is needed one may refer to a seven members Full Bench judgment of this Court in Sharaf Faridi v. Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404), where Ajmal Mian, Chief Justice (presently Chief Justice of Pakistan) held:-- "However, there cannot be any doubt that a Court having jurisdiction to adjudicate upon a matter, has the power to mould a relief according to the circumstances of the case, if dictates of justice so demand even if such a relief has not been expressly claimed provided the relief to be given is within the compass of the jurisdiction of the Court."
57. The detenue was kept in illegal detention from 13th October to 16th October, 1997 without there being any ground for causing his arrest and without M a remand order having been obtained from a Magistrate. In Sardar Muhammad M Ali v. Federation of Pakistan (PLD 1961 Karachi 88) this Court had awarded Rs,10,000 as damages to the plaintiff on account of his illegal detention for a period of 26 days despite holding that the plaintiff himself was partly responsible for causing such detention and punitive damages were not being awarded. This judgment was sustained by a Division Bench of this Court and the value of money has depreciated several times since 1961.
However, even from a conservative estimate, we are of the opinion that in the circumstances the detenue ought to be compensated at least at the rate of Rs,5,000 per day and Rs,15,000 are payable by way of compensation. Moreover, the detenue was able to obtain his release through the process of this Court. It is one of those cases where the S.H.O. Aijaz Ali Kaimkhani acted in gross abuse of his official powers and ought to be penalised by way of costs in terms of the law declared by the Supreme Court in the case of Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others (1993 SCMR 639). Accordingly we direct that in addition to the above, S.H.O. Should be personally liable to pay costs in the sum of Rs,10,000.
58. For the foregoing reasons we would order that:--
(i) An amount of Rs,15,000 by way of monetary compensation payable to the detenue, may be deposited by the Government of Sindh within fifteen (15) days from the date of this order with the Additional Registrar, at Hyderabad, who may thereafter disburse the same to the detenue after due identification. The Provincial Government may recover this amount from the S.H.O. Aijaz Ali Kaimkhani in accordance with the provisions of the Sindh Police (Efficiency and Discipline) Rules in such instalment as it considers appropriate and apprise the Additional Registrar accordingly.
(ii) The S.H.O.Aijaz Ali Kaimkhani is directed to personally bear the costs of Rs,10,000, who will deposit the same with the Additional Registrar Circuit Bench, Hyderabad within two months from today and the latter will disburse the same to the detenue.
(iii) The above is without prejudice to such disciplinary or penal action that the Government might take against the aforementioned S.H.O.