ABDUL GHANI GHUMMAN Versus PROV. OF PUNJAB.

1. Ch Abdul Ghani Ghumman, plaintiff was the Chairman of the` District Board, Sialkot from 1948 to 1958. He has been a Member of the Constituent Assembly, a Member of the Provincial Assembly, Chief Parliamentary Secretary, and a Minister to the Government of Pakistan. He filed the present suit on 18‑11‑1963 in the Court of the. Administrative Civil Judge, Sialkot for a decree in the sum of 25,00,000 as damages for malicious prosecution. The defendants are the Province of Punjab, the late Abdul Majid and Ali Asgbar, both of whom were Sub‑Inspectors at the Sialkot City Police Station, and Muhammad Sharif, who was an Assistant Sub‑Inspector at the same place.

2. The plaint discloses that First Information Report No. 198 (Exh. P. 44) was gistered on 25‑10‑1958 at the instance of Abdul Majid Sub‑Inspector and the plaintiff was arrested and confined for about 2J months. It was alleged that‑

(a) in his capacity as Chairman, District Board, Sialkot, the plaintiff permitted the use of vehicles belonging to the Board by the Sialkot Rural Development Society,

(b) authorized the occupation of 3 rooms of the Sialkot Zailghar, which was also the property of the District Board, to the aforesaid Society, and

(c) no rent was charged for the use of the vehicles or the Zailghar.

3. 23 cases were registered against him. He was arrested in Lahore on 23‑10‑1958 wherefrom he was taken to Sialkot on 27‑10‑1958 and produced before the District Magistrate, Sialkot on 28‑10‑1958, who remanded him to Police custody for 14 days. He remained detained for 76 days till 7‑1‑1959 when he was released by the High Court on bail. He was prosecuted in more than one cases but was discharged in all of them by the Inquiry Magistrate. The State challenged these orders before the High Court, which arose out of 15 cases. The proceedings in ten were quashed, but five cases were remanded for trial.

4. The present suit arises out of those ten cases proceedings in which were quashed by the High Court, by its orders Exhs. P. 85 to P. 9l and Exhs. P. 97 to P. 99, passed on 19‑11‑1962. Five of these ten cases relate to the use of vehicles referred to above for transporting books by the Education Trust, which later became a Society, while the remaining five relate to the use of three rooms in the Zailghar by the Society.

5. The five cases remanded by the High Court resulted in discharge of the accused‑plaintiff on 20‑2‑1963, but I am not concerned with them in this suit. The plaintiff was prosecuted under section 409 of the Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947. It was asserted in the plaint that‑

(a) the accusations were completely false and malicious,

(b) there was no reasonable and probable cause for his arrest and prosecution,

(c) the F. I. R. was motivated by political rivalry,

(d) action was taken against him because of unhappy relations with Mr. Ala‑ud‑Din, C. S. P., the Administrator of the District Board, and

(e) all defendants were equally liable.

6. The suit was vehemently contested. particularly by the Government of the Punjab, which raised the following pleas :‑

(a) Government is immune from action in tort based upon acts of its servants, ,

(b) the plaintiff was neither wrongfully nor maliciously prosecuted.

7. The other defendants resisted the suit on the ground that‑

(a) having acted in the course of their employment, they were not liable in tort,

(b) they did not arrest the plaintiff,

(c) there were reasons to suspect the complicity of the plaintiff in the offences with which he was charged,

(d) there was reasonable and probable cause for the action taken against him,

(e) there was no malice, and

8. (f ) the suit was barred by limitation.

9. As a result of these pleadings, the following issues were framed :‑

(1) Whether the plaintiff was prosecuted by the defendant ? O. P. P.

(2) Whether there was no reasonable and probable cause for the prosecution of the plaintiff O. P. P. (Onus objected to)

(3) Whether the prosecution of the plaintiff was malicious ? O. P. P.

(4) Whether defendant No. 1 cannot be sued for damages in torts ?

10. O. P. D.

(5) Whether defendants Nos. 2 to 4 have committed tortious acts against the plaintiff ? O. P. P.

(6) On proof of issue No. 5, is the defendant No. 1 not responsible for the tortious acts of defendants Nos. 2 to 4 ? O. P. D.

(7) Whether defendants No. 2 and 3 arrested the plaintiff and started investigation against him in spite of the fact that the F. I. R. did not contain specified circumstances and instances about the commission of offences by the plaintiff ? O. P. P.

(8) Whether the Challan against plaintiff was put up by defendant No. 3 ? If not, its effect ? O. P. D.

(9) Is this suit time‑barred ? O. P. D. (Onus objected to)

(10) Whether the particulars of case given in para. 9 and 10 of the plaint are inadequate ? If so, its effect ? O. P. D. (Onus objected to).

(11) Whether defendants Nos. 2 to 4 acted in their official capacity and ' are not responsible personally for damages ? O. P. D.

(12) To what damages, if any, the plaintiff is entitled ? O. P. P.

(13) Relief.

11. The entire evidence of the plaintiff and of D. Ws. 1 to 46 having been ‑recorded, the High Court transferred the case on 1‑1‑1967 to the District fudge, Lahore. The latter made it over to the Additional District Judge, ,who recorded the evidence of D. Ws. 47 and 48. The suit was dismissed for ,default on 11‑3‑1970 and an application for transfer of the proceedings to the High Court was also made, which having been accepted, the case came up !'before this Court. On 11‑3‑1971, the ex parte order dismissing the suit for default was recalled by this Court, and the suit was restored to its original number. The cross‑examination of D. W. 48 took place before this Court.

12. On 15‑3‑1968, the plaintiff made a statement reducing his claim from Rs. 25,00,000 to Rs. 10,00,000.

13. Issue No. 9 : Is this suit time‑barred ? O. P. D. (Onus objected to)

14. This issue deals with the question of limitation. It has been asserted before me that Article 2 of the Limitation Act applies to this case. Article 2 is attracted to suits

15. "For compensation for doing or for omitting to do an act alleged to be in' pursuance of any enactment in force for the time being in Pakistan. The period prescribed is ninety days and begins `when the act or omission takes place'."

16. On the other hand, the plaintiff asserts that Article 23 is attracted. This Article is‑

17. "For compensation for a malicious prosecution"‑the period of .limitation is one year and begins from the date "when the plaintiff is ;acquitted, or the prosecution is otherwise terminated".

18. It is axiomatic that where a statute contains general as well as special provisions, the special provisions are applicable in preference to the general 4srovisions. Since there is a specific article i.e. Article 23, which deals with ,.cases of malicious prosecution, its provisions shall have to be preferred to .general provisions contained in Article 2 and I hold accordingly.

19. The determination of the date from‑which the limitation would start for run comes next. I need only refer to Bhagat Raj v. Mt. Curai Dulaiya and' another (AIR 1938 All. 49) in which the correct position of the law has been enunciated as‑

20. "It appears to us that there is no reason why the plaintiff's suit should' have been considered to have been barred by limitation. He had to assert in his plaint that the proceedings in the criminal Court bade terminated in his favour. An application in revision had been made to the Sessions Judge and although it is probable that the Sessions Judge himself could not have ordered a further inquiry, still he could have made a report to this Court which then could have interfered and ordered further inquiry. In these circumstances, it cannot be said that the proceedings in the criminal Court had finally terminated in favour of the plaintiff on 12th November 1932".

21. In the present case, the Government filed revision petitions against the order of discharge of Abdul Ghani Ghumman. These revision petitions were disposed of on 1y‑11‑1962 and the suit was filed on 18‑11‑1963 Le. Within one year of the disposal of the revision petitions.

22. On either count, therefore, it cannot but be held that the suit was filed within limitation.

23. Issue No. 4 : Whether defendant No. 1 cannot be sued for damages in torts ? O. P. D.

24. Defendant No. 1 in this case is the Government. The question is. whether a suit for compensation for malicious prosecution is not maintainable against it. In a long line of pre‑Independence cases, including Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India ((1868‑69) 5 Bom. H C R App. A4), The Nawab of the Cornatic v. The East India Company (4 Bro. Rep. 179), Mahrani Gurucharan Kaur v. Province of Madras ((1944) 1 M L J 399), Uday Chand Mahtab v. Province of Bengal (I L R 2 Cal. 141), Shivabhajan v. Secretary of State for India ((1904) 18 1 L R 314), Secretary of State for India in Council v. Shreegobinda Chudhuri ((1932) I L R 59 Cal. 1289), Secretaty of State for Iudia v. Somayya ((1926) 51 M L J 446), Nobin, Chunder Dey v. The Secretary of State for India ((1944) 1 M L J 399), Mohammad Yusufud Din v. The Secretary of State (10), M A. Kader Zailany v. The Secretary of State for India in Council ((1931) I L R 9 Rang 375) and Rogers v. Rajendro Dutt (8 Moo. I A 103), it was held that the Government could not be made liable for tortious acts of its servants performed in relation to its sovereign powers. The basis of this view was that only such suits could be filed against the Government as could have been filed against the East India Company. Reliance was placed on section 32 of the Government of India Act, 1858, section 65 of the Government of India Act, 1919, section 176 and 270 of the Government of India Act, 1935. This continued to be the law in Pakistan also till the Constitution of 1956 was enforced and the Supreme Court discussed the whole matter threadbare in Pakistan v. Muhammad Yaqub (P L D 1963 S C 627), and came to the following conclusion :‑

25. "It has already been explained by this Court in Pakistan v. Mohammad

26. A. Hayat P L D 1962 S C 28 that the constitutional status of the Crown of England is wholly different from that of the Government of' Pakistan and an argument based on the equality of such status may be misconceived. The Crown could not be sued in England in tort because‑

(1) the King could do no wrong, and

(2) the King could not be sued in his own Courts.

27. Neither of these two considerations has any application to the Government of Pakistan.

28. The present case is one under the Government of India Act, 1935, but. still the matter is not governed by considerations applicable to the Crown and has to be decided on the provisions of the Government of India Act By section 65 of the Government of India Act, 1915, the remedies open to a person against the Secretary of State for India in Council were the same as would have been available against the East India Company. By section 176 of the Government of India Act, 1935, the remedies available against the Central Government (and subsequently by an amendment the Federation of Pakistan) were the same as were available against the Secretary of State for India in Council. So the question in such cases would be whether the East India Company could have been sued in tort if at the time when the cause of action arose the Government of this country vested in the East India Company. On the question whether (apart from the effect of the Crown Proceedings Act, 1947) the East India Company could have been sued for torts committed by its servant there was some differ ence of opinion in pre‑Partition India. It had been held in some cases that an illegal levy of custom under the Customs Act, an illegal acquisi tion of land under the Land Acquisition Act and an improper dismissal of a councillor of a municipality under the District Municipalities Act, could furnish good grounds for action against the Government, while in some other cases it bad been held that the closing of a labour depot by a District Magistrate, an improper arrest by a police officer, and negligence of a bailiff in taking insufficient security, could not be the foundation of a suit against the Government. Some confusion had been caused by the fact that sovereign acts were said to be immune from attack and this expression was applied in some judgments even to cases where the Government was purporting to act in relation to its own nationals under the Municipal Law.

29. It is not necessary to examine the reasoning in the decided cases which, led to opposite results in view of what follows. It may be stated,. however, that there should be no dispute about the expression "sovereign act" being applicable only to acts committed in relation to other states or aliens and being inapplicable to a case where the Government is acting in relation to its own citizens. In the latter case, the Government has authority to act only in accordance with the Municipal Law.

30. In the first place it is to be observed that since the Crown Proceedings Act, 1947, the position of the Crown of England with respect to liability for torts committed by its servants has altogether changed.

31. This Act provides

32. "2. Liability of the Crown in tort.‑(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to, which, if it were a private person of full age and capacity, it would be subject‑

(a) in respect of torts committed by its servants or agents ;

(b) in respect of any breach of these duties which a person owes to his servants or agents at common law by reason of being their employer ; and

(e) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.

33. Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.

(2) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.

(3) Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions. the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.

34. .(4) Any enactment which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any tort committed by that department or officer shall, .in the case of proceedings against the Crown under this section in respect of a tort committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown bad been proceedings against that department or office. k(5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.

35. 4(6) No proceedings shall lie against the Crown by virtue of this section in respect of any act, neglect or default of any officer of the Crown unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Fund of the United Kingdom, moneys provided by Parliament, the Road Fund, or any other Fund certified by the Treasury for the purposes of this subsection or was at the material time holding an office in respect of which the Treasury certify that the holder thereof would normally be so paid."

36. The liability, therefore, of the Crown is now the liability of any employer and the Crown would be‑liable to be sued in tort in all cases where an ordinary employer could be sued subject to the exceptions mentioned in the above section. If, therefore, in 1948 the Government vested in the East India Company, it could not be said that the East India Company was not liable for acts of its servants because if even the Crown was liable the East India Company could not be in a better position. This judgment has been referred to by the Court with approval in latter cases too. This, therefore, is the last word on the point and binding upon all Courts in Pakistan.

37. Thus, cases of other jurisdictions in which the converse has been held are no longer good law and I have, therefore, no difficulty in holding that there is no bar to defendant No. 1 being sued in tort provided the exceptions mentioned above are not attracted. There is no doubt that in the present case the exceptions are not attracted, therefore the contention that defendant No. 1 was immune from attack in a civil Court in proceedings based upon tort is not well‑founded. Issue No. 4 is, therefore, decided against defendant No. 1.

38. Issue No. 8 : Whether the Challan against plaintiff was put ur by defendant No. 3 ? If not, its effect ? O. P. D.

39. Ali Asghar defendant No. 3 was asked in cross‑examination whether it was correct that be challaned the plaintiff in the criminal cases which are the basis of this case on the Zimnies recorded by A. S. I. Choudhry Muhammad Sharif and at his recommendation he endorsed the Zimnies. He answered in the affirmative by simply saying "yes". In view of this admission made by Ali Asghar defendant No. 3 himself I have no option but to find issue No. 8 in favour of the plaintiff. The second part of that issue does not arise as the answer to the first has been given in the affirmative.

40. Issue No. 1 : Whether the plaintiff was prosecuted by the defendant ? O. P. P.

41. So far as defendant No. 1 is concerned, there is evidence in the shape of the judgments of this Court Exhs. P. 85 to P. 94 and Exhs. P. 97 to P. 99 that the Government, defendant No. 1, or in any case its predecessor the Government of West Pakistan, did ratify the prosecution of the plaintiff in the cases by presenting revision petitions against the order of his discharge and, thus, putting its seal upon the act of the other defendants.

42. There is, however, no need to depend upon this act of ratification for fixing responsibility of defendant No. 1. Exh. P. 65' is the sanction accorded by the Governor of West Pakistan for prosecution of the plaintiff which runs as follows :‑

43. "Whereas the Governor of West Pakistan is satisfied that Ch. Abdul Ghani Ghumman son of Rasul Bakhsh Ex‑Chairman, District Board, Sialkot, created a private Trust in 1954 known as the Sialkot District Board Educational Trust which was ‑ subsequently named as the Sialkot Rural Development Cooperative Society Ltd., whose object was to supply cheap text books to the students of the District Board's schools, Sialkot. For the purpose under the authority of the accused as the said Chairman three rooms of the Zailghar Sialkot, in the District Board building were occupied from 1st January 1955 to 31st December 1955 by the Trust for the store of books etc. i.e. for 365 days but contrary to the rules of the District Board, Sialkot no, rent was realized for this period from the Trust. Thus the accused as the Chairman caused monetary loss of the amount of Rs. 1003/12 to the District Board for not realizing or allowing to realize the said amount as rent for the Zailghar from the Trust and thereby appears to have committed an offence under section 409, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947.

(2) And whereas the said Ch. Abdul Ghani Ghumman Chairman of the District Board, Sialkot being a public servant within the meaning of section 21 of the Pakistan Penal Code as laid down in section 19‑C of the District Board Act, 1887, sanction for his .prosecution is required under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act (No. XL) of 1958.

(3) And whereas in pursuance of the provisions of section 11 of the District Board Act, 1883, the election of a member of the District Board is notified by the Provincial Government and in accordance with the provisions of sub‑rule (2) of rule 46 of the District Board Election Rules, 1952, the election of Chairman is approved by the Governor of the Province (Torn) section 6(5) of the Pakistan Criminal Law Amendment Act, 1958.

44. And whereas after considering the facts constituting the offences and other circumstances of the case, the Governor is satisfied that the grant of sanction to the prosecution of the said Ch. Abdul Ghani Ghumman is necessary. The offence was committed by the said Ch. Abdul Ghani Ghumman while he was a public servant and a member and Chairman of the District Board, Sialkot.

(4) Now, therefore, in exercise of the powers conferred by subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, the Governor of West Pakistan hereby sanctions the prosecution of the said Ch. Abdul Ghani Ghumman, ex‑Chairman, District Board, Sialkot in respect of the offence specified above."

45. Thus, defendant No. 1 was responsible for prosecution of the plaintiff.

46. Defendant No. 2 is Abdul Hameed, retired Inspector of Police, Sialkot. This Officer having already breathed his last and an action in tort being in personam his legal representatives would not be liable. In any case his legal representatives could not be and have not been brought on the record, therefore no finding is necessary agairst him either on this issue or the rest of the case.

47. The next is defendant No. 3 Ali Asghar. The finding on issue No. 8 leaves no alternative but to return an answer in the affrmative so far as issue No. 4 concerns him.

48. Ch. Muhammad Sharif defendant No. 4 is the only other person left. Ali Asghar defendant No. 3 in his statement accepted the proposition of fact that Zimnies of the case were recorded by this defendant and that it was on his recommendation that the witness endorsed the Zimnies. He has also admitted in the cross‑examination that he gave his final conclusion agreeing with the investigation conducted by Ch. Muhammad Sharif A. S. I. Consequently the responsibility of Ch. Muhammad Sharif A. S. I. for the prosecution of the plaintiff can hardly be doubted. It may also be stated that in his own statement as D. W. 48 Ch. Muhammad Sharif admitted that he investigated the cases from 30‑10‑1958 to 20‑12‑1958 and submitted ten separate challans for the ten cases.

49. There, of course, are besides the statement to the same effect given by the plaintiff as his own witness. In view of the facts narrated above, issue No. t is also found in the affirmative.

50. Issue No. 6 : On proof of issue No. 5, is the defendant No. 1 not responsible for the tortious acts of defendants Nos. 2 to 4 ? O. P. D.

51. This issue raises the question whether the employer, and, particularly when the employer is a Government, could be held liable for the tordous acts ,of its employees ?

52. In the judgment of the Supreme Court quoted above, it was held that‑

53. "The Crown would be liable to be sued in tort in all cases where an ordinary employer could be sued subject to the exceptions mentioned in section 2 of the Crown Proceedings Act."

54. Even in the case of Peninsular and Oriental Steam Navigation Company v. The Secretary. of State for India ((1868‑69) 5 Bom. H C R Appen. A‑1), it was held that‑

55. "Could it be said that if the accident had occurred at the time of the East India Company, they would not have been liable if the accident had been proved to have been caused 'solely by the negligence of their servants? It was argued that the per3ons injured have their remedy against those by whose negligence the damage is caused ; but what compensation is it in a case in which the damage. sustained may amount to several lakhs, to be referred to a lascar or to a bullock driver or even to the Captain or mate of a Government Steamer for redress, if the accident was caused by his own personal negligence . . . . .

56. We are of the opinion that for accidents like this if caused by the negligence of servants employed by Government, the East India

57. Company would have been liable .... and that the same liability attaches to the Secretary of State in Council who is liable to be sued for the purposes of obtaining satisfaction out of the revenues of India.

58. We are of the opinion that this is a liability, not only within the words but also within the spirit of the 3rd & 4th Win. IV., c. 85, S. 9, and of the 21st and 22nd Vict., c. 106, S. 65, and that it would be inconsistent with common sense and justice to hold otherwise".

59. It was held in Udcay Chand Mehtab v. Province of Bengal (I L R 2 Cal. 141) that‑

60. "The Crown's vicarious liability for acts and omissions of its servants is restricted to‑

(a) . . . . . . . . . . . . . . . . . . . . . . .

(b) acts of State done under the sanction of and in exercise of powers conferred by some municipal law or statute consisting in detention of land, goods of or chattels of the subject by the Crown itself and acts done by its officers in discharge of their official duties, on express authority from the Crown or resulting in some profit thereto."

61. So far as ratification is concerned, a perusal of Article 30 of Bowstead on the Law of Agency would show that‑

62. "The ratification of an act or transaction may be expressed or implied. A ratification will be implied whenever the conduct of the person, in whose name or on whose behalf the act or transaction is done or entered into, is such as to show that he intends to adopt or recognise such act or transaction in whole or part; and in a case of an agent exceeding his authority may be implied from the mere silence or acquiescence of the principle."

63. Reference has already been made to Exh. P 65 the sanction given by the Governor for the prosecution of the plaintiff without which the latter could not have been legally launched. In the present case, the prosecution of the plaintiff was on behalf of the State. The Government was fully aware that a respectable citizen was being prosecuted. It was fully aware of tile facts of the case also and it was only the Government which could have withdrawn the prosecution. The Government never cared to do so. What else is F ratification? These acts of the Government are, therefore, clearly ratification of the unlawful acts of its employees if ratification was at all required to make it liable.

64. The circumstances in which an ordinary employer would be liable may now be spelt out.

65. Paragraph 194 of Clerk & Lindsell on Torts, 11th Edition, runs as. follows‑ .

66. "Where the relationship of master and servant exists, the master is liable for the torts of the servant committed in the course of employment. In this connection the course of employment means‑

(a) What the servant is definitely ordered to do by the master, i.e. the tort authorised by the master, or

(b) An act authorised by the master but carried out by the servant is some wrongful and unauthorised manner. The nature of the tort is immaterial . . . . Thus whether the tort be negligence, false imprisonment, assault, fraud, malicious prosecution, libel or slander, the master is liable, provided only that the tort is committed in the course of the servant's employment." in the present case, it was false imprisonment as well as malicious prosecution initiated by action by the servants of the Government. The Government would, therefore, be liable only if it could be shown that the "tort is com mitted in the course of the servant's employment."

67. Paragraph 196 of the same book deals with scope of the employment in. the following words‑

68. "An act is said to be within the scope of the servant's employment when, although in fact unauthorised, it is so directly incidental to some acts or class of acts which the servant was authorised to do that it will be said to be a mode, though no doubt an improper mode, of performing them. For an impropriety or excess on the part of the servant in the course of doing something which was authorised the master will be responsible, but not for an act wholly unconnected with the class of acts which the servant was authorised to do. In short, as stated above, the Master's liability for the unauthorised torts of his servant is limited to unauthorised modes of doing authorised acts. As was said by Willes J. in Barwick v. English Joint Stook Bank (1867) LR 2 Ex. 259‑

69. "In all these cases it may be said that the master has not authorised the acts. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, he must be answerable for the manner in which the agent has conducted himself in doing the" business which it was the act of his master to place him in."

70. Winfield dealing with the same problem in his celebrated book on Torts, observes‑

71. "It should be asked, how can any wrong be in the course of a servant's employment? No sane or law abiding master even hires a man to tell lies, give blows, or act carelessly. But that is not what course of employ ment means. A wrong falls within the scope of employment if it is expressly or impliedly authorised by the master or is an unauthorised manner of doing something which is authorised, or is necessarily inci dental to something which the servant is employed to do." , and goes on at page 150‑

72. "A wrongful act done by a servant wilfully may still be in the course of employment even if it was expressly forbidden by the master. In. Limpus v. London General Omnibus (1862), Vol. 1 HNC 526‑

73. "A driver of the defendant's Omnibus had printed instructions not to race with or obstruct other omnibuses. In disobedience to this order he obstructed the plaintiff's omnibus and caused a collision which injured it. The defendants were held liable because what he did was merely a wrongful, improper and unauthorised mode of doing an act which he was authorised to do."

74. In the case of Limpus, Willes J. observed at page 539‑

75. "It is well known that there is virtually no remedy against the driver of an omnibus, and, therefore it is necessary that, for injury resulting from:, an act done by him in the course of his master's service, the master should be responsible; for there ought to be a remedy against some" person capable of paying damages to those injured by improper driving. . . The proper question is whether the servant was acting at the time in the course of his master's service, and for his master's benefit; if so, his act was that of his master, although no express command or privity of his master was proved."

76. 3n the same case, Byles J. said‑

77. "He used the words `in the course of service and employment', which as my brother Willes has pointed out, are justified by the decisions. The direction amounts to this, that if a servant acts in the prosecution of his master's business for the benefit of his master and not for the benefit of himself, the master is liable although the act may in one sense be willful on the part of the servant.

78. It is also said that the act was illegal. So, in almost every action for negligent driving, an illegal act is imputed to the servant. If we were to hold this direction wrong in almost every case, a driver would come forward and exaggerate his own misconduct, so that the master would be absolved."

79. Salmond in his book on Torts observes at page 98 that‑

80. "When the agent is a servant, his employer will answer not merely for all! torts actually authorised, but also for all those which are committed by the servant while engaged in doing his master's business, whether, they are authorised or not" and at page 105 of the same book‑

81. "But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they might rightly be regarded as modes‑although improper modes‑of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it."

82. Quoting (1867) L R 2 Ex. 259‑

83. "In all these cases, it may be said that the master has not authorised the act. It is true that he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in."

84. In Uxbridge Permanent Benefit Building Society v. Pickard ((1939) 2 K B 248) it was held:‑

85. "Pickard was a Solicitor practising in London with a branch office at Slough. This office was managed by one Conway. This Conway was a party to a fraud by which he induced Uxbridge Permanent Benefit Building Society to advance money to a person alleged by Conway to be a client. The title to the property mortgaged was fictitious and the title‑deeds were forgeries. Suit was filed against Pickard on the ground that he was responsible for the fraud of his agent. It was held that‑

86. `Notwithstanding the fact that the persona defrauded were not Pickard's clients and that Conway's fraud involved the uttering of a forgery, Pickard was answerable in damages for it'."

87. As held by the Supreme Court in Pakistan v. Muhammad Yaqub‑

88. "The liability, therefore, of the Crown is now the liability of any ordinary employer and the Crown would be liable to be sued in torts in all cases where the ordinary employer could be sued subject to the exceptions mentioned in the above section."

89. The case before me does not fall within the exceptions, and since, as has .already been seen above, any employer would have been liable for the act of ,its servants if they had maliciously prosecuted or unlawfully arrested the plaintiff, it would follow as a corollary that the Government is fully liable 1 for the acts of its servants. Issue No. 6 is, therefore, found in favour of the plaintiff and against defendant No. 1.

90. Issue No. I1.‑Whether defendants Nos. 2 to 4 acted in their official capacity and are not responsible personally for damages? O. P. D.

91. In Winfield on Tort, 6th Edition, page 137, in section 32, the rule as to liability is stated as follows‑

92. "The master is liable for any tort, which the servant commits in the course of his employment. The servant himself is also liable."

93. ,Similarly in Salmond on Torts, 11th Edition, page 97, section 30, we find that‑ "the master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment. This is by far the most important of the various cases in which vicarious liability is recognised by the law."

94. Having held that the act done by the three defendants was tortious, the mere fact that the master had been. found liable vicariously does not absolve the servant from liability, as has been so clearly stated in the classics on the Law of Tort quoted above. It may be emphasised that the liability of the employer is in the nature of a vicarious liability, and in the case of such liability the person who has performed the tortious act is not absolved of his responsibility. By pressing this Doctrine into service, the employer also becomes liable besides the employee, who as the person committing the to continues to remain liable for the consequences of his act. The mere fact, therefore, that defendants No. 3 and 4 were acting in their official capacity i.e. as servants of the Government does neither minimise nor eliminate their liability Issue No. I1 is therefore found in favour of the plaintiff and against defendants Nos. 3 and 4.

95. Issue No. 10.‑Whether the particulars of case given in paras. 9 and 10 of the plaint are inadequate? If so, its effect? O. P. D. (Onus objected to).

96. This issue was not pressed before me and is consequently found in favour of the plaintiff.

97. Issue No. 2.‑Whether there was no reasonable and probable cause for the prosecution of the plaintiff? O. P. P. (Onus objected to)

98. Issue No. 3.‑Whether the prosecution of the plaintiff was malicious? .

99. Issue No. 5.‑Whether defendants Nos. 2 to 4 have committed tortious acts against the plaintiff? O. P. P.

100. Issue No. 7.‑Whether defendants Nos. 2 and 3 arrested the plaintiff and started investigation against him in spite of the fact that the F. I. R. did not contain specified circumstances and instances about the com mission of offences by the plaintiff? O. P. P.

101. Issues Nos. 2, 3, 5 and 7 are so inter‑connected that it will be advantageous to deal with them simultaneously. It was laid down in Broad v. Ham ((1859) 5 Bing (N C) 72)‑

102. "There must be a reasonable cause such a9 would operate on the mind of a discreet man; there must be a probable cause‑such as would operate on the mind of a reasonable man; at all events such as would operate on the mind of a party making a charge; otherwise there is no probable cause for him; I cannot say that the defendant acted on probable cause if the state of facts was such as could have no effect on his mind."

103. In Herniman v. Smith ((1938) A C 305), the House of Lords approved the definition of reasonable and probable cause by Hawkins J. in Hicks v. Faulner ((1837) 3 Bing (N C) 45)‑

104. "An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." "it is not justifiable to commence prosecution on mere suspicion. It is not a reasonable ground for a charge of forgery that the forged docu ments resemble the handwriting of the party accused (para. 1435)."

105. A word of caution has been pronounced in para. 1436 of the book by observing‑

106. "Where a man is satisfied or has apparently sufficient evidence, that in fact, he has been cheated, there is no obligation to call on the cheat and asking for an explanation which may only have the effect of causing material evidence to disappear or be manufactured It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution."

107. (Both reproduced in para. 1432, page 863, Clerk and Lindsell on Torts 11th Edition). It was, however, observed at page 743 of Salmond on Torts, 11th Edition that‑

108. "Yet it is difficult to see, a man can be said to have reasonable and probable cause for prosecuting unless he has at least an honest belief in the strength of his own case. `It would be a monstrous proposition that a party who did not believe the guilt of the accused should be said to have reasonable and probable cause for making the charge'."

109. The parcha challan relating to the 10 cases under review are Exh. P. 45 to Exh. P.

54. Exhibit P. 45 accuses the plaintiff, who was the President of the District Board. Sailkot of having allowed the Rural Development Cooperative Society, Sialkot to use trucks and petrol belonging to the Board from April 1956 to June 1956. Petrol worth Rs. 640‑1‑9 was consumed from the account of the District Board by the Society and the former was never reimbursed. If the trucks had been loaned in accordance with the District Board rules, the Board would have been entitled to a sum of Rs. 1026.10. It was concluded that the plaintiff, who in his capacity as Chairman of the District Board was the Trustee of the Board's property, bad dishonestly and deliberately caused the aforementioned loss to the Board.

110. Exhibit P. 46 related to the making over of 3 rooms of the District Board's Zailghar by the plaintiff to the Rural Development Society for its use without rent from July 1954 to December 1954 thus causing a loss of Rs. 506 to the Board.

111. Exhibit P. 47 relates to a similar charge in respect of the period between 1‑I‑1955 and December 1955.

112. Exhibit P. 48 is concerned with the making over of trucks alongwith petrol to the aforementioned Society by the .plaintiff from May 1954 to Decem ber 1954.

113. Exhibit P. 49 accused the plaintiff of similar action in respect of the period June 1957.

114. Exhibit P. 50 relates to a similar charge in‑respect of the period February 1958 to June 1958.

115. Exhibit P. 52 relates to the period January 1955 to June 1955.

116. All these challans are under section 409 of the Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947.

117. Exhibit P. 52 relates to 3 rooms of the Zailghar which were let out to the aforementioned Society from 1‑1‑1958 to 8‑7‑1958. Although the allegation in the challan Is only in respect of having misused his office as Chairman of the District Board and caused an irreparable loss to it in the sum of Rs. 519/12 but in the title, the sections quoted are 409/411, 379/4?0, 468, P. P. C. as well as the Prevention of Corruption Act, 1947 and the Martial Law Order and Regulation.

118. Exhibit P. 53, which bears a similar caption, relates to the same Zailghar for the period January 1957 to December 1957.

119. Exhibit P. 54, which also bears the same caption, relates to the Zailghar for the period 1‑i‑1956 to 31‑12‑1956.

120. Exhibit P. 65 is the copy of the sanction accorded by the Governor of West Pakistan on 18‑2‑1954 for the prosecution of Ch. Abdul Ghani Ghumman‑

121. "Whereas the Governor of West Pakistan is satisfied that Ch. Abdul Ghani Ghumman son of Rasul Bakhsh ex‑Chairman, District Board, Sialkot created a private Trust in 1954 known as the Sialkot District Board Educational Trust which was subsequently named as the Sialkot Rural Development Cooperative Society Ltd., whose object was to supply cheap text books to the students of the District Board's Schools, Sialkot. For the purpose under the authority of the accused as the said Chairman three rooms of the Zailghar Sialkot, in the District Board building were occupied from 1st January 1955 to 31st Decem ber 1955, by the Trust for the store of books etc., i.e. for 365 days but contrary to the rules of the District Board, Sialkot no rent was realised for this period from the Trust. Thus the accused as the Chairman caused monetary loss of the amount of Rs. 1003/12 to the District Board for not realising or allowing to realise the said amount as rent for the Zailghar from the Trust and thereby appears to have committed an offence under section' 409, P.P. C. and section 5(2) of the Preven tion of Corruption Act, 1947.

(2) And whereas the said Ch. Abdul Ghani Ghumman Chairman of the District Board, Sialkot being a public servant within the meaning of section 21 of the Pakistan Penal Code as laid down in section 19‑C of the District Board Act, 1887, sanction for his prosecution is required under subsection (5) of section 6 of the Pakistan Criminal Law Amend ment Act (No. XL) of 1958.

(3) And whereas in pursuance of the provisions of section 11 of the District Board Act, 1883, the election ‑of a member of the District Board is notified by the Provincial Government and in accordance with the provisions of sub‑rule (2) of rule 46 of the District Board Election Rules, 1952, the election of Chairman is approved by the Governor of the Province (Torn) section 6(5) of the Pakistan Criminal Law Amendment Act, 1958.

122. And whereas after considering the facts constituting the offences and other circumstances of the case, the Governor is satisfied that the grant of sanction to the prosecution of the said Ch. Abdul Ghani Ghumman is necessary. The offence was committed ,by the said Ch. Abdul Ghani Ghumman while he was a public servant and a member and Chairman of the District Board, Sialkot.

(4) Now, therefore, in exercise of the powers conferred by subsection (5) of "coon 6 of the Pakistan Criminal Law Amendment Act 1958, the Governor of West Pakistan hereby sanctions the prosecution of the said Ch. Abdul Ghani Ghumman, ex‑Chairman, District Board, Sialkot in respect of the offence specified above."

123. The sanction order shows that the plaintiff was accused of causing monetary loss in the sum of Rs. 1,003‑12 to the District Board by not realising or allowing to realise the aforesaid amount as rent for the Zailghar from the Trust thereby committing an offence under section 409 of the Pakistan Penal Code and section 5(2) of the Prevention of Corruption Act, 1947.

124. The other sanction order is Exh. P. 66 in respect of the use of trucks and petrol belonging to the Board from May 1954 to December 1954 with the permission of the plaintiff' by the Sialkot Rural Development Cooperative Society and the prosecution was sanctioned only under section 409, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947.

125. Let us now see from the evidence on the record whether there was a reasonable cause as would operate on the mind of a discreet man and a probable cause as would operate on the mind of a reasonable man and whether the defendants could on the basis thereof be said to have an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable, grounds of the existence of the sudden circumstances, which assuming them to be true, would ordinarily reasonably lead a prudent and cautious man placed in that position to 'the conclusion that the plaintiff was probably guilty of the crime.

126. The Society referred to again and again as the beneficiary of the favours alleged to have been shown by the plaintiff was indubitably and admittedly for med as a non‑profit making body for the ostensible object of providing cheap stationary and text books to District Board Schools at rates much below those a charged in the open market and to utilise the proceeds for the avowed. purpose of distributing. similar material free to the indigent and deserving amongst the students. Not an iota of evidence was produced at any stage of the case to show that this ostensible object was not the real object or that this object was not put into practice.

127. Ch. Abdur Rahim M. P. A. (P. W. 1) stated that the District Board. Sialkot constituted the Education Trust by means of a resolution passed in the year 1954. This Trust later brought into existence a Cooperative Society for the achievement of its objectives. The Society was a charitable institution and the Government duly notified it to be such and exempted it from the payment of Income‑tax.

128. Exhibit P. 6 is a copy of the notification issued by the Revenue Division of the Ministry of Finance in respect of the aforesaid exemption. He further stated that all accounts of the Society were audited by the Cooperative n Department and that the plaintiff did not derive any benefit from it. In fact the plaintiff advanced a substantial amount of money to it free of all interest. The witness was Senior Vice‑Chairman of the District Board from 1954 to 1958 and was incharge, inter alia, of its Engineering Branch. Trucks of the Board were employed for transporting books to various schools of the District under his orders. Petrol was, however, provided by the Trust and the Society. He categorically stated that the plaintiff never issued any orders for the use of the Board's vehicles for transport purposes of the Trust or the Society. 1 This witness also made it clear that he had apprised the Police of this situation during his interrogation and that there was no divergence in that statement made by him in Court and the one recorded by the Police.

129. This witness further proved the high status of the plaintiff and made an averment that the plaintiff had been victimised because he dared resign from the ruling party in the Province. ‑

130. Lengthy cross‑examination ensued about the working of the Trustees and the Society, which was wholly alien to the point before the civil Court.

131. The witness admitted that the Head Office of the Trust was in the Zailghar, which was owned by the Board, but only one room was occupied by the Office, while the other was a Store Room. He admitted that they were not taken on rent. As to the recovery of the rent of the trucks he informed the Court that it fell within the functions of the Office and neither the Chairman nor he himself were responsible for it.

132. This responsible citizen who held a public office gave a complete lie to the case of the prosecution that it was the plaintiff who had allowed the use of the trucks. If anybody could have been prosecuted in case there was any evidence against him it would probably have been the witness himself. His statement, however, completely exonerates the plaintiff and nothing was put to him during the course of his cross‑examination which could lead one to be lieve that the defendants had any material whatsoever to belie his assertions with which he could have been confronted. If they had nothing up their sleeves and they decided not to confront him with it, section 145, Evidence Act would be a complete bar to its user against the plaintiff.

133. Reference may also be made to Resolution No. 2(28) passed at a meeting of the District Board, Sialkot on 27‑6‑1954 Exh. P. 2 which was carried with only one Member dissenting. This resolution runs as follows:‑

134. "This year the Punjab Government substituted the zonal scheme for the prescription of textbooks into a. new scheme whereby twenty different sets of books were prescribed by the Education Department for primary classes out of which any set may be introduced in the schools. The introduction of this system synchronised with the receipt of numerous representations by me from different publishers for the intro duction of sets published by them. Some of the publishers brought to bear enormous pressure over me in this connection. Some even suggested terms of a nefarious character. I was almost sick of such overtures. As a result of these circumstances I was compelled to study the whole position with a deep interest. The overtures from these publishers made me realize that the publishers were making a hell of profit and possibly the persons connected with the introduction of these books also shared in the harvest. I accordingly made up my mind to look for a scheme whereby these profits may be diverted into much better and suitable channels. My main idea being that instead of the profits going to the few big businessmen or teachers, they should go to alleviate the hardship of the common man more parti cularly the destitute students. Accordingly I evolved a comprehensive scheme to work out which I formed a Sub‑Committee consisting of certain District Board Members and members of Board Teachers' Union. The scheme in a nut‑shell was that the different publishers should be directly contacted and whosoever offers the highest commis sion, his set be accepted for introduction in the schools. The com mission so earned would go towards the assets of the trust or Society who would manage it. The District Board Teachers' Union in a una nimous resolution welcomed the scheme and offered their unstinted co‑operation for this humanitarian scheme. Besides the text books the scheme consisted of supplying other books, exercise books, stationery and all other articles which a student in our schools may possibly require. The results have shown that besides supplying exercise books to the pupils at rates lower than those prevailing in the market the Trust is deriving substantial assets for its humanitarian activities.

135. As for the introduction of text books after negotiating with various publishing firms it vas concluded that the terms offered by Messrs Ghulam Ali & Sons a firm of high financial stability were the best. He offered 50 % commission on all the text books published by him. Accordingly in the best interests of the public his terms were accepted and supply arranged from him through the Central Cooperative Banks in the district. The position now is that in spite of opposition from so many quarters the position of supply of books to the pupils in the district is very satisfactory and much better than that prevailing in other districts. Whereas the set of books published by this firm has come into the hands of an overwhelming majority of the students, the books on Science and Urdu published by the Government are almost totally unavailable.

136. So also has the Trust alleviated to a great extent the hardships of the pupils in the procurement of exercise books.

137. Anybody who keenly studies the whole situation would necessarily anticipate grumbling from quarters who could not get their books introduced. These wealthy publishers were expected to resort to any proceedings whereby the good steps taken by me in collaboration with the Teachers Union and some of my public spirited friends could be undone. And so it happened. A certain Firm Maqbul‑Am Publishing Agency filed a suit for injunction restraining the Chairman District Board from preventing the plaintiffs to try to introduce their sets. Now this thing ordinarily looked may not be very material but it may have certain far‑reaching inferences. No doubt the Punjab Education Code provides that it would be the duty of the head teacher of a school to introduce particular books in the school. But it is merely his duty and not his privilege or right or responsibility. Duties entrusted to any body are always subservient to the will of the employer who pays him for the discharge of his duties. The employer has to see that he dis charges his duties with a judicious use of discretion. Then again if we concede this point and let the head teachers perform the duties unfetter ed by us this will go far in restraining us from taking any steps to curb undesirable tendencies in teachers in discharge of their duties. I have therefore decided that the case be contested and have engaged Malik Qadir Bakhsh, an eminent lawyer as our counsel at a fee of Rs. 500 plus Rs. 50 as his clerk's fee.

138. I have discussed the above with the Commissioner and he has welcomed it. I also discussed it with the Registrar Cooperative Societies who heartily appreciated my initiative and has advised me to w6rk it on a provincial basis in the form of a Cooperative Society. The Assistant Registrar Cooperative Societies, Sialkot as well as Lahore have made draft bye‑laws which are being scrutinised by the Principal, Punjab Co operative Institute. Pending final action in the matter, the work is being carried on under the name of Punjab District Board Education Trust. This is a purely makeshift arrangement and I trust the Board would agree to the use of District Board Sialkot's name for this purpose.

139. The Board would I trust allow me to render available any facilities to the Trust which are given to Board for the procurement of certain stocks from the Government i.e. paper, wood etc. and give any other required assistance to the Trust. My efforts in this connection would be considered as emanating from the Chairman, District Board, Sialkot and not as representative of the Trust.

140. ‑ I would at this juncture like also to inform the members that the assets so far accrued to the Board are well over Rs. 32,000."

141. This meeting of the Board by passing this resolution‑ authorised the Chairman) to give "any other required assistance to the Trust". Any action taken by. the Chairman in this regard even if it had been proved would therefore have had the powerful backing of the entire Board and he could hardly be held) responsible for acting in accordance with the resolution of the Board. These documents were, of course, before the Police during the investigation.

142. This witness is supported by Abdul Haq (P. W. 2) who was District Engineer of the Board and was incharge of its vehicles from 1954 up to 1958. He vouchsafed the giving of the trucks to the Society with the permission of the foregoing witness that is the Senior Vice‑Chairman. He further proved that the District Board had been using the trucks of ‑the Society also in respect of which a statement showing the rent due to the Trust was duly prepared in the same manner as the statement showing the rent due to the Board from the Trust in respect of the vehicles of the former used by the latter was‑prepared. He gave a complete lie to the suggestion that the Society was a "personal institution of the plaintiff". A roving, irrelevant and time wasting cross‑examination of this witness was conducted without eliciting any thing from him which could damage the plaintiffs cause or espouse that of the defendants.

143. Mushtaq Hussain P. W. 4 proved from letter Exh. P. 3 from the Society to the District Engineer, Sialkot that the latter asked for the use of Truck No. PBY‑622 belonging to the Trust for cartage of wood from the District Board roads. The, District Engineer was informed that the truck would be placed at his disposal no sooner it was available. A request was made to the District Engineer in the following words‑

144. "As regards the charges of your transport being used by us, kindly maintain an account of them and due adjustment will be made later on."

145. This letter was issued on 25‑3‑1957 and conclusively proves that it was matter of lease and lend between the District Board and the Trust and both of them were using the trucks owned by each other for their purposes. p P. W. 4 also proved that he delivered the letter personally to the District

146. Engineer.

147. He also proved Exh. P. 4, which was a letter addressed by the Trust to the Chairman, District Board, Sialkot. This letter was issued on 23‑8‑1956 and shows that the Trust asked for the fixation of a nominal rate of rent for the 3 rooms occupied by it in the Zailghar as the Trust had been formed for charitable purposes with a view to promoting the cause of education in the District. He also proved letter Exh. P. 5, which was addressed to the Administrator of the District Board on 20‑10‑1958 asking‑ for accounts to enable the Society to pay any amounts which may be found due from it. This witness further stated that the Society had two trucks, which were given on hire to the Board. It also hired trucks from the Board/under orders of Ch. Abdur Rahim P. W. He further testified that the plaintiff did not derive any personal benefit from the Society or its business and on the contrary advanced loans to the Society to the tune of Rs. 88,000. He categorically stated that‑

148. "He was asked to depose falsely against the plaintiff as a witness for the prosecution. Since the plaintiff was innocent, I refused to do so. As a retaliatory measure I was falsely involved in a criminal case by the Police. I was produced before Mr. G. M. Piracha M. I. C. for the purpose of remand. I narrated the above facts to the learned Magis trate. The case in which I was involved proved abortive and I was honourably acquitted."

149. An unsuccessful effort was made in the course of his cross‑examination to show that the witness had reason to be grateful to the plaintiff. Nothing of note concerning the allegations germane to the case was, however, brought out in his cross‑examination.

150. Ch. Muhammad Nawaz (P. W. 5) President, Daska Cooperative Bank, Daska and Honorary Secretary of the aforementioned Society deposed that all transactions in which the Society was involved were made through resolu tions. The Society had been procuring books at cheaper rates to the students of District Board Schools and had also been supplying books free of cost to poor students. This witness was interrogated by the Police. He was one of the persons who suggested the formation of the Society. He was also a Treasurer. He further proved that the reputation of the plaintiff had been hurt on account of the prosecution. He also proved that the Chief Minister was inimical towards Mr. Ghumman because he had left the Republican Party.

151. Syed Nazar Hussain (P. W. 7), inter. alia, proved that the Society owned 2 trucks, that the entire record of the Society was taken into possession by the Police without preparing a Recovery Memo. He also proved that the Minute Book did have pages 7 and 8 in it so long as it was in his possession. He further proved that a sum of Rs. 58,350 deposited by the Society in the account of the District Board in connection with certain transactions which fell through was still due from the Society to the Board. He produced receipt Exh. P. 12 in proof thereof. He also proved that the trucks belonging to the Society were sometimes hired by the Board. He stated that the plaintiff never promised to have the rent of the Zailghar or charges for vehicles written off. He proved that the Society was maintaining all necessary books and registers which were taken away by the Police and the Police decided for itself as to which of them were to be entered in the Recovery Memo. He further proved that the plaintiff paid no less than Rs. 1,50,000 in 2 years to the Society as loan and that regular accounts were kept by the Society of all transactions.

152. Kb. Muhammad Safdar M. P. A. (P. W. 14), who is now a Senator and was, at that time, Leader of the opposition. deposed to enmity between the then Chief Minister Mr. Qazilbash and Mr. Alauddin Ahmad, Deputy Minister with the plaintiff.

153. Ch. Zahoor Elahi (P. W. 23) proved enmity between Mr. Alauddin Ahmad and the plaintiff:

154. Malik Faiz Hussain (P. W. 25) proved that efforts were made by the Ministers and Mr. Alauddin Ahmad, Deputy Minister to make the plaintiff join the Republican Party, which he refused to do. He further stated that the Deputy Commissioner had told him that he would do whatever he could against the plaintiff. He was approached by Muhammad Sharif and Muhammad Asghar for help against the plaintiff which ‑he declined to give.

155. Mr. Mumtaz Hussain (P. W. 26) stated that the defendants asked him to make a statement as Assistant Secretary of the Board that tile plaintiff did not allow the realisation of the rent of the Zailghar but as it was not within his knowledge, he declined to make such a statement. He also proved that the Government had directed these two persons to initiate proceedings against the plaintiff.

156. Ch. Abdul Ghani Ghumman appeared as P. W. 27 and proved his case in accordance with the plaint. He was subjected to a roving cross‑examination, most of which was not relatable to the point in issue and he stood ground.

157. Mr. Alauddin Ahmad C. S. P. appeared as D. W.

5. He denied being inimical to the plaintiff or having manoeuvred the criminal case against him. In cross‑examination, Mr. Alauddin Ahmad had to admit that although it was brought to his notice that the rent of the building and the trucks was due from the Society but nobody ever said to him that the plaintiff was obstructing the payment. He proved that sanction for the prosecution was granted by the Provincial Government. Although he initially denied having had anything to do with the initiation of the criminal case against the plaintiff but faced with Exh. P. 42 he had to admit that he had done so. He further had to admit that before requiring the Superintendent of Police to hold an inquiry he did not probe into the matter himself nor did he obtain any legal advice.

158. He did not even ask for the explanation of the plaintiff before this. He evaded a direct answer to the question that there was no data available justifying the charges levelled against the plaintiff by him.

159. Ch. Chiragh Din (D. W. 7) was P. D. S. P., Sialkot during the relevant time and he stated that after going through the evidence collected by the Investigating Agency he came to the conclusion that there was a prima facie case to be decided by the Court.

160. Ch. Muhammad Iqbal Minhas Magistrate Section 30 (D. W. 8) pro duced certain statements of certain witnesses.

161. D. W. 9 was Mr. Allah Nawaz Tarin who was Superintendent of Police during the relevant time at Sialkot. He denied that he had directed any f his subordinates to fabricate any evidence against the plaintiff. He, however, admitted that special report about these cases was sent to the Government, the D. I. G. and the I. G. of Police. He felt convinced about the genuine. ness of the information contained in the F.

1. R. and he thought that there was a good case.

162. Ch. Muhammad Sarfraz Khan appeared as D. W.

10. He opposed the plaintiff in certain elections and gave irrelevant evidence. He referred to personal matters of the plaintiff about his divorcing his wife, about his being insulted by a Sub‑Inspector, about a case having been registered against him etc. etc.

163. Similar evidence was given by Ch. Muhammad Azam, Chairman, Town Committee (D. W. 11).

164. Syed Irfanul Haq (D. W. 12) deposed that the plaintiff did not have a good reputation.

165. Mian Masood Ahmad Advocate (D. W. 13) deposed similarly.

166. Syed Iqbal Ahmad Shah (D. W. 14) also deposed about certain matters which are not relevant to the case before me.

167. Syed Mehdi Shah (D. W. 15), however, stated that a person can be elected as a representative of the people only if he commands a good reputa tion and that the plaintiff did hold such a position for a long time. He had heard of certain cases against him but they were not proved.

168. Syed Murid Husain (D. W. 16) tried to prove that school teachers were compelled to prescribe the books which were arranged by the Trust, that some cases were registered against the plaintiff but those are matters alien before me.

169. Syed Rasool Shah (D. W. 16) stated that the plaintiff had a bad repu tation.

170. Syed Iqbal Hussain Shah (D. W. 18) thought that the reputation of the plaintiff had not suffered on account of his prosecution under Martial Law. He is as powerful as in the past and the people still come to him for assistance.

171. Ch. Abdul Waheed (D. W. 19) also gave. some irrelevant evidence about the sale of the books by the Trust.

172. Syed Asghar Ali Shah (D. W. 20) also gave some oral evidence about some ghee fraud case.

173. Maj. Muhammad Akram Hayat Advocate (D. W. 21) also thought on the basis of what he had heard or read about the plaintiff that he had a bad reputation.

174. Rana Muhammad Arshad Advocate (D. W. 22) was of the view that the plaintiff did not have a good reputation.

175. Sub‑Maj. and Hony. Capt. Muhammad Husain (D. W. 23) also stated that he had a bad reputation.

176. Sh. Muhammad Jamil (D. W. 24), Ch. Sardar Khan (D. W. 25), Muhammad Sadiq (D. W. 26), Ch. Sultan Ahmad Cheema (D. W. 27), Nazar Muhammad (D. W. 28), Ch. Muhammad Aslam (D. W. 29), Ch. Nasrullah (D. W. 30). Ch. Muhammad Siddiq (D. W. 31), Lal Din (D. W. 32), Ch. Muhammad Iqbal (D. W. 33), Ch. Nematullah (D. W. 34), all said that he did not have a good reputation.

177. Syed Murid Husain Shah (D. W. 35) gave a lengthy statement about his career and the case against Mr. Ghumman but it can be hardly considered as relevant to anything connected with the issues before me.

178. Ch. Ghulam Sarwar (D. W. 36) also deposed about his having a bad reputation.

179. Ch. Nazar Ahmad (D. W. 37) appeared for the same purpose.

180. Rand Fazal Muhammad (D. W. 38) thought that the plaintiff's reputa tion had not suffered on account of his arrest.

181. Ch. Muhammad Sarwar (D. W. 39) deposed that the plaintiff used to derive illegal benefit from the office.

182. Mr. Zahoorul Hassan (D. W. 40) also deposed that the political and social reputation of the plaintiff was very bad. .

183. Ch. Nasiruddin (D. W. 4 1) also deposed that he did not consider that public money was safe in the hands of the plaintiff.

184. Kh. Ghulam Muhammad Hazar (D. W. 42) deposed to some irrelevant matters.

185. Mr. Muhammad Nazir Rizvi (D. W. 43) proved his order as a Corpora tion Magistrate.

186. Mr. Muhammad Hussain (D. W. 44) stated that the plaintiff never asked him for any favour nor could he grant him any. He made certain statements about transactions pertaining to ghee. He stated that the objects of the Trust were good but the students did not derive any benefit. He thought the plaintiff and his family members had derived benefit out of it. He thought that the plaintiff had a bad reputation but all this is neither here nor there.

187. Ch. Imtiaz Ali Superintendent of Police, Jhelum (D. W.45) is the next witness. He was D. S. P. Narowal before the relevant period. His statement pertains to the reputation of the plaintiff.‑

188. Mr. Ali Asghar (D. W. 47) stated that he could not say if there was absolutely no evidence against the plaintiff on 28‑10‑1958 justifying his arrest. He had challaned the plaintiff on the basis of investigation conducted by A. S. I. Muhammad Sharif and he had not satisfied himself as to whether the arrest of the plaintiff was justified or he should be challaned or not. He had not even ensured as to whether there was any evidence for the arrest of the plaintiff because the over‑all investigation was conducted by the senior officer, namely Abdul Hamid City Inspector. On the next date of hearing when he had refreshed his memory, however, he came to the conclusion that on 28‑10‑1958 there was sufficient evidence for his arrest.

189. Ch. Muhammad Sharif, defendant appeared as D. W. 48 and harped on the same tunes. He was subjected to a very lengthy cross‑examination in which his statement was blown into smithereens.

190. I need not go into the details of that statement. It has been seen above that he was charged under section 409, P. P. C. and section 5 of the Preven tion of Corruption Act, 1947 and h can hardly add to what the late Mr. Manzur Qadir, one of the most erudite criminal lawyers that this Country has ever produced, observed as Chief Justice, accepting the revision petitions out of which the present case has. arisen. His order is as follows:‑

191. "It is contended that the allegations in this case, even if they are accepted as true in their entirety, do not amount to an offence. I have asked the learned Assistant Advocate‑General who appears for the State to show how these allegations amount to an offence, but he is unable to do so.

(2) I have examined these allegations and am of the opinion that they do not constitute an offence committed by the petitioner. The proceedings in this case are consequently quashed."

192. Even the learned Assistant Advocate‑General, who subsequently sat with distinction on the Bench of this Court, I mean Mr. Justice Ataullah Sajjad., R was unable to show to the learned Chief Justice that the allegations made against the plaintiff amounted to an offence.

193. Independently of this observation of the then Chief Justice, I am con vinced from a resume of the allegations and the evidence given above that neither did the former constitute any offence nor did the latter prove any, and at no stage was there any evidence or reasonable ground of suspicion to justify the forwarding of the plaintiff to a Magistrate for trial under section 409, P. P. C. and section 5 of the Prevention of Corruption Act, 1947.

194. I consequently find that there was neither reasonable nor probable cause for the prosecution of the plaintiff.

195. As for issue No. 7, the facts disclosed above show that the F. I. R. neither contained specific circumstances nor instances about the commission of any offence by the plaintiff. Issue No. 7 is, therefore, found in favour of the plaintiff and against defendants 2 and 3.

196. Issue No. 3.‑Para. 706 of Halsbury's Laws of England, Third Edition Vol. 25, page 362, provides that:‑

197. "Malice may be implied from the want of reasonable and probable cause."

198. In pars. 707, one finds the following observation‑

199. "Where the Prosecutor knows that the accused is innocent, there is, of course, clear evidence of malice. "

200. In Alam Khan v. Banay Mian Rasool (A I R 1926 Bom. 306) it was observed that‑ "procuring of false evidence was per se proof of malice."

201. In the present case, there is unrebutted evidence to the fact that the defendant tried to prevail upon witnesses to give false evidence. Mumtaz Husain Assistant Secretary of the Board (P. W. 26) is an instance in point.

202. In Winfield on Torts, Sixth Edition, page 756, section 175, it was observed on the basis of Brown v. Rawkes ((1891) 2 Q B 718) that‑ "want of reasonable and probable cause may be evidence of malice in cases where it is such that the Jury may come to the conclusion that there was no honest belief in the accusation made."

203. Salmond on Torts, Eleventh Edn., p. 31, section 7 contains the following observation‑ ,

204. "Malice in common acceptance means ill‑will against a person but in its legal sense it means a wrongful act done intentionally without just cause or excuse."

205. In the same book, at p. 33, the following dictum is quoted from Allen v. Flood (1898 A C 92)‑

206. "Although the rule may be otherwise with regard to crimes, the Law of England does not. according to my apprehension, take into account motive as constituting an element of civil wrong."

207. One would, therefore, be correct in observing that so long as the act done is wrongful, has been done deliberately, and there was no just cause or excuse for doing it, it would be a pre‑eminent case of malicious action. From what has been observed above on facts and law, it needs no gainsaying that these ingredients have been fully proved against the defendants and there is, there. fore, no difficulty in finding that the prosecution of the plaintiff was malicious. Issue No. 3 is, therefore, answered in the affirmative and in favour of the plaintiff.

208. As it has been proved that‑‑

(1) The plaintiff was prosecuted by the defendants.

(2) The prosecution was determined in favour of the former.

(3) The prosecution was without reasonable and probable cause, and that.

(4) It was malicious. it is beyond any doubt that defendants have committed tortious acts against the plaintiff wherefor Issue No. 5 is found in the affirmative and in favour of the plaintiff.

209. Issue No. 12.‑To what damages, if any, the plaintiff is entitled? O. P. P. Issue No. 13.‑Relief.

210. It has been stated in the opening part of this judgment that the original claim for damages was to the tune of Rs. 25,00,000. By a subsequent statement the plaintiff reduced it to Rs. 10,00,000: He assessed the damages and compensation for them as follows:

211. "I was a very popular political figure among the masses in Pakistan I have held record number of public Elective Offices. On account of my prosecution and its wide publicity in Provincial Newspapers I suffered a great set‑back to my popularity and reputation for which I claim Rs. 12 lacs as damages. My health was adversely affected during the period I remained confined in Jail. Due to shock I developed diabetes. I had to seek treatment of my disease from Dr. Salzer of Zafar Ali Rd. Lahore, Ilahi Clinic, and Ganga Ram Hospital. In the first instance I consulted Dr Alamgir who detected diabetes in me. On the loss of health and expectancy of life I claim Rs. 5 lacs. I suffered mental torture and I claim compensation for it at Rs. 5 lacs. I suffered loss of business to the extent of Rs. 2,00,000. I had to install a rice husking machine for which the machinery had reached Karachi. The installation of machinery was delayed for two years.

212. The loss in this business means less profits to the extent of Rs. 80,000. During the year 1962‑63, I paid Income‑tax in anticipation on expected profit of Rs. 1 lac. At that time I had no other business. I had to spend Rs. 20,000 in connection with the defence of cases against me at all levels."

213. The narration of facts shows that the plaintiff was kept in confinement for a period of 76 days as a result, of this malicious prosecution, his prosecution continued for a number of years till it culminated in the dismissal of the revision petitions in the year 1962 by the High Court.

214. An attempt was made to produce witnesses to testify that the plaintiff did not enjoy a savoury reputation and had, therefore, not suffered by the prosecution. Most of the witnesses are his political opponents or persons who had their own axe to grind. No story could be set by their testimony.

215. Be that as it may, the plaintiff has proved that he was and had been holding high representative offices of State and it would be a sad commentary on the electorate to hold that they returned a person with a bad reputation as their representative. I find no force whatever in the defence plea on this score.

216. The damage done to the fair name of the plaintiff, the injury to his re putation, the indignity, humiliation and disgrace caused to him by the, fact of the charge being preferred against him, the consequent mental‑torture suffered by the plaintiff who held a high position in society and the permanent damage caused to it by the prosecution, risk of conviction, which must have always hovered on his head, his arrest and imprisonment up to the time that bail was granted, the expenses incurred by him in defending himself against the prosecution, the loss of general business suffered by him would warrant the allowing of exemplary damages under the law. I, however, do not intend to do so and consider that a sum of Rs. 1,00,000 should be paid by defen dant No. 1 and sums of Rs. 1,000 each . by defendants Nos. 3 and 4 to the plaintiff as compensation. I do hereby decree this suit in favour of the plaintiff in the amounts aforesaid who shall also be entitled to the costs thereof. s. A. H. Suit decreed.