2005 PLP 3109 (YLR)

FAZLUR REHMAN KHAN, J.

This Regular First Appeal is directed against the judgment/decree, dated 23-10-1998 of the learned Senior Civil Judge/Aa'la Illaqa Qazi, Dir at Timargarah, whereby suit of Mst. Yasmeen, respondent, for the recovery of damages of Rs.50,00,000 was decreed against Dr. Anwarzada, appellant No. 1, with costs.

2. According to the averments made in the plaint, Mst. Yasmeen, respondent No.1 herein, and hereinafter referred to as respondent, lives at Haji Abad along with her parents and other members of her family. The respondent was sick since long and was under treatment of different doctors. On 22-8-1992, she came to District Headquarter Hospital, Timargarah for treatment. After obtaining O.P.D. chit and consulting Dr. Muhammad Shoaib, Medical Specialist, she purchased medicines as per his prescription, and went to her home. However, having no relief, she again came to the hospital on 26-8-1992 for further treatment/examination and after re-examining her, Dr. Muhammad Shoaib advised her admission in the hospital. As, at that time, she had not consulted her family members, and was not in possession of necessary articles/wearings, she went back to her home. On 27-8-1992, in the morning, she along with her father, niece Mst. Nusrat and nephew Muhammad Zeb, came to the hospital and after making arrangement for a private room in hospital by her father, she along with her father, niece and nephew went to the said room. After a little while, at about 10-00 a.m. Dr. Anwarzada (appellant No. 1) came there and after asking her some indecent and irrelevant questions, went out and again came there after a few minutes along with appellants Nos. 2 to 7 and started asking her further most ridiculous/indecent questions about her character. The appellants then started search of the room, their persons and bath-room and in spite of the fact that the appellants were told that the respondent is ill and Dr. Muhammad Shoaib has advised her admission in the hospital, but even then, they continued search of the room, bodies of the respondent and her family members to the extent that they were put to high- handedness and indecency. In the meantime, sufficient number of the public was attracted to the spot, who started observing the miserable conditions of her and her family members, through the door and windows of the room from the verandah. The appellants then locked the bath-room as well as the room from outside and asked the local police to guard against her room. Appellant No.1 simultaneously asked the hospital staff not to provide any medicine to the respondent. In the meantime, her sister also arrived in the hospital but she was not allowed by the police guard to come in. The appellants kept the respondent and members of her family in illegal confinement since the morning of 27-8-1992 till 8-00 p.m. on 28-8-1992. Lastly, at the intervention of the S.H.O. of the P.S., the guard was removed and the respondent was allowed to go to her home without any treatment. The foregoing acts of the appellants were not only against their professional duties but the respondent and her family members were highly disgraced and in humiliated, so much so that she was put to severe mental torture and above all, with the foregoing acts of the appellants, the incident was so advertised in the local newspapers that the relatives of the respondent became annoyed and duly armed attacked her house on 29-9-1992, at night time and started indiscriminate firing, as a result of which, her nephew was killed while her father received fatal injuries and some of the inmates of her house also received injuries. It was stated in the plaint that the Medical Superintendent, District Headquarter Hospital, Timargarah, being incharge of the hospital, is being impleaded, as defendant No.8 (respondent No.2 herein).

3. The appellants contested the suit by filing a joint written statement. Out of the pleadings of the parties, the learned trial Court framed the following issues:-- "(1) Whether plaintiff has a cause of action? (2) Whether suit is incompetent in present form? (3) Whether suit is bad for misjoinder and non-joinder? (4) Whether proper court-fee has not been affixed on the plaint. (5) Whether this Court has got jurisdiction to try the present suit? (6) Whether proper notice was not given to the defendants prior to present suit, if so, its effect? (7) Whether suit has been malafidely instituted? (8) Whether defendants are entitled to receive special costs from plaintiff, under section 35-A, C.P.C.? (9) Whether plaintiff was advised to be admitted in Civil Hospital, Timargarah in view of her serious illness and consequently she got a private room on 27-8-1992 for the purpose of treatment? (10) Whether defendants Nos.1 to 7 have shown indecency towards plaintiff by asking irrelevant questions about her character and, they also disgraced and humiliated her by conducting illegal search of her person and the room, locking the doors and bathroom as well as private room and also arranged police guard on the said room malafidely? (11) Whether defendants Nos. 1 to 7 managed to stop the supply of medicines and food to the plaintiff during her stay in the Hospital room and she was forcibly confined to the said room from 10-30 a.m. on 27-8-1992 till 8-00 p.m. on 28-8-1992? (12) Whether the acts of defendants Nos. 1 to 7 were based on mala fide and violative of their professional norms and conduct due to which plaintiff: faced mental torture, agony and humiliation in family as well as general public and it was in this background that the niece of plaintiff was killed by the maternal uncle/relatives of plaintiff: in fury of anger? (13) What is the liability of defendant No.8 in the present case? (14) Whether plaintiff is entitled to the recovery of rupees 50 lacs from defendants on account of defamation, mental tention and agony, as damages? (15) Relief."

4. In support of her case, respondent No.1 besides placing certain documents on record, examined in her evidence as many as 13 witnesses, including herself while the appellants in their evidence examined 8 witnesses, including appellant No.1, and also placed on file certain documents and a copy of an inquiry report, dated nil. After recording evidence of the parties and hearing their counsel, the learned trial Court decided all the issues in favour of respondent except Issue No.13, which was decide in favour of respondent No.2. As a result, the suit of the respondent was decreed against the appellant No.1 for recovery of Rs.50,00,000 as damages with costs. Feeling aggrieved, the appellants have filed the present suit.

5. We have heard Messrs Ghulam Nabi Khan and M. Waris Khan, Advocates, for the appellants and Messrs M. Alain Khan and M. Younas Jan, Advocates, for the respondent and have also perused the record.

6. In support of the appeal, the learned counsel for the appellants contended that; firstly, the respondent has failed to prove her proper admission in the private room (Room No.6) of the Hospital and the findings of the learned trial Court on Issues Nos.10 to 12 are the result of misreading and non-reading of the evidence on record because a departmental inquiry was conducted by a team of three doctors, in which the appellants were found innocent; secondly, in the present case, the Provincial Government of N.-W.F.P. was a necessary party but they have not been impleaded, as such, the present suit is not maintainable; thirdly, the respondent railed to prove all the essential ingredients of defamation and fourthly; the amount of damages awarded to the respondent is too high.

7. So far as the first argument of the learned counsel for the appellants is concerned, by going through the record, we find that: (i) The respondent was ill since some time before the present occurrence and remained patient under the treatment of different doctors. During this time, she had undergone various laboratory tests vide photo copies, Exh.P.W 12/1 to Exh.P.W.12/15. On 22-8-1992 she came to the District Headquarter Hospital Timargarh vide OPD Chit, Copy Exh. P.W.8/1. On that date, she was examined by Dr. Muhammad Shoaib (P.W.8). According to his statement, dated 18-1-1994, he examined and advised her to be admitted in the hospital but as, according to her statement, on that date, she had no necessary wearing/articles, she left the hospital for her home. On 27-8-1992, she along with her father, nephew Muhammad Zeb and niece Mst. Nusrat came to the hospital but as no private room of Dr. Muhammad Shoaib was available, her father through the efforts of Sher Rehinan (P.W.11) got a private room (Room No.6) of the ENT Unit of the Hospital from Dr. Muhammad Gul, ENT Specialist (P.W.7). Accordingly, she along with her father, nephew and niece shifted to the said room at about 10-00 a.m. (ii) After about 5 minutes, Dr. Anwarzada, appellant, came to the room and started various questions of strange nature from the respondent and her father but the latter denied the sanic, stating that the respondents is ill and has been admitted in the hospital as patient of Dr. Muhammad Shoaib. He then left the room. (iii) After about 10 minutes, appellant No.1 along with appellants 2 to 7 again came there. They started search of the luggage/articles of the respondents, bath-room, beds and even search of her body. Appellant No.1 specifically asked her that, was she the girl, who had made her "Blue Prints"? However, the respondent and her father strongly refuted the allegations and told him that respondent was a woman of good character but in spite of that the appellant continued cross-examining her, asking her insultive/indecent questions. In the meantime, many persons from the hospital and nearby area were attracted to the spot, who were observing the miserable condition of the appellant and members of her family through the door and windows of the room. (iv) After asking various questions of notorious nature, the appellants went out of the room, locked the door of the room from outside. In the meantime, local police arrived at the spot. Appellant No.1 directed them not to allow any person into or out of the room. The respondent, her father and her niece Mst. Nusrat remained in illegal confinement from 10-00/ 10-30 a.m. on 27-8-1992 till 8-00 p.m. on 28-8-1992 or in other words for about 33/34 hours. Before closing the door of the room, Muhammad Zeb, the nephew of the respondent had gone out of the room and did not remain in confinement. During her confinement, the respondent was not given any sort of treatment including the food, on account of which, she remained in shock and developed temperature. On 28-8-1992 at 8-00 p.m., the police guard was removed and the respondent and her family members were allowed to go. (v) The interrogation of the respondent and her family members by the appellants subsequently received wide publication in the various newspapers, like Frontier Post, Peshawar, Daily Mashriq, Peshawar and Daily Jang, Rawalpindi. (vi) On the day of occurrence, i.e. 27-8-1992, Dr. Anwarzada, appellant No. 1, was neither Incharge of the Hospital nor any body had authorized him to look after the administration of the Hospital. Even Private Room No.6 was neither under his control or care. (vii) It is also evident from record that neither the original inquiry report (copy Exh. D.W.5/1) was produced in Court nor anyone of the three members of the Inquiry Committee was examined in support of the same. (viii) On account of the occurrence of 27-8-1992, the relatives of the respondent became highly annoyed, on account of which, some of them, duly armed, on 29-8-1992 attacked the house of the respondent and during indiscriminate firings, the niece of the respondent was killed while her father received fatal injuries. Other inmates of her house also received injuries. It is stated at the bar that the father of the respondent in pursuance of the occurrence has lost his mental balance. From the foregoing findings, it is clear that there is neither any misreading nor non-reading of the evidence on record. Accordingly, we confirm the findings of the learned trial Court on Issues Nos.10 to 12.

9. So far as the second argument of the learned counsel for the appellants that the suit is not maintainable on account of non-joinder of the Provincial Government, is concerned, it may be pointed out here that it is settled law that joinder or mis joinder of necessary parties is determined on the basis of allegations contained in the plaint, regardless of whether such allegations are true or wrong. Perusal of the plaint shows that the appellants have been sued in their private capacities for their illegal acts. It is also settled law that wherefor an illegal act of a Government servant, the Government ratifies his illegal act, the Government would be responsible and a necessary party, but in the present case, the Provincial Government have never ratified the illegal acts of the appellants, rather the Government condemned their illegal acts by instituting an inquiry to be conducted by an Inquiry Committee, consisting of three Doctors, regardless of the fact that in pursuance of the inquiry, the Inquiry Committee exonerated them. In the case of Sardar Muhammad Ali and another v. Pakistan (PLD 1961 (W.P.) Karachi 88), his Lordship of a Single Bench held that:-- "The present action to the extent of the claim for damages for false imprisonment falls into third category, and I can see no principle upon which immunity can be claimed by the State in the circumstances of this case. The only principle upon which liability can be disowned is that when a Government servant acts without authority or in excess of his power, it is his own act for which the Government cannot be held responsible. But if the Government chooses to ratify that act it cannot than claim the immunity, the basis of which it has itself knocked out by the fact of ratification which makes the unauthorized act of the servant the act of the principal, namely, the Government itself." In the case reported in PLD 1965 (W.P.) Karachi-1', their Lordships of a Division Bench approved the foregoing finding of his Lordship, the Single Bench, and observed that:

"The learned Single Judge's view that protection, if any, is only available to the Government officers and on ratification of an illegal action cannot absolve the Government from liability is fully justified on the legal principles involved in this matter." We, in the circumstances, fully agree with the foregoing observations of his/their Lordships. Accordingly, the second argument of the learned counsel for the appellants is without force and is hereby rejected.

10. As far as the third argument of the learned counsel for the appellants that the respondent failed to prove the essential ingredients of defamation is concerned, it is pointed out here that perusal of the plaint of the respondent would show that her claim for damages is primarily based on her illegal confinement/false imprisonment and secondarily for damages for defamation. From the evidence on record, it is abundantly proved that the appellants kept the respondent and her family members in illegal detention/false imprisonment for about 33/34 hours. Here, it was contended by the learned counsel for the appellants that the respondent failed to prove the malice of the appellants for her alleged false imprisonment, therefore, the suit of the respondent has been wrongly decreed. However, this argument is without force because in the case cited at the bar, their Lordships observed that, "it is well-settled rule of law that in order to succeed in a suit for damages for wrongful arrest and detention, it is not necessary for a plaintiff to prove malice and want of reasonable and probable cause on the part of the Government officers in causing his wrongful arrest and detention". We have no reason to disagree with the foregoing well-settled rule of law.

11. It was also contended by the learned counsel for the appellants that the alleged incident took place within the four walls of the room and there was no publication of it on the part of the appellants and one of the essential ingredients for defamation is publication of the same in the press, but this argument is also without force because actual publication in the press on the part of the appellants was not necessary and it was sufficient that it was communicated to a third person. In support, we may with advantage quote here a passage from the `Anand and Sastri's, "The Law of Tort", Second Edition, 1960, published by Law Book Company, Allahabad, appearing at Page 176, which reads:-- In an action for defamation, the plaintiff must prove- (a) a defamatory imputation or statement made by the defendant concerning his character or reputation; (b) the publication of that imputation or statement by the defendant to a third person. Thus, for example, in the case of a letter addressed by defendant, the plaintiff must allege and prove;-- (1) the words used are defamatory; (2) the defendant knew or ought to have known that the letter would probably be read by some person other than the plaintiff; (3) the defamatory words have been published, that is, read by some person other than the plaintiff; and (4) such publication was either by the defendant or as a result of such action on his part which to his knowledge, actual or presumed, was likely to lead to publication." From the foregoing passage, it is clear that actual publication of the defamation by the defendant in the press is not necessary and it would be sufficient that it led to publication in the press. It has been established from the evidence on record that by asking the question from the respondent by appellant No.1 that, "Is she the girl, who made her Blue-Prints?" was being heard by some members of the Staff of the Hospital and outsiders of the locality, which subsequently led to its wide publication in the press. This argument of the learned counsel for the appellant is also without force and is hereby rejected.

12. As far as the last argument of the learned counsel for the appellants that the amount of damages granted to the respondent is too high is concerned, it carries some weight because no hard and fast rules are available for the assessment of damages in the case of false imprisonment and their Lordships in the case, cited at the bar, on review of two cases, namely: (i) Santdas Idanmal v. Province of Sind (AIR 1945 Sind 93) and (ii) Rajah Pedda Vencatapa Naidoo Bahadur v. Arpovala Roodrapa Naidoo and Paupa Naidoo (21-A 504) confirmed the views of his Lordship the Single Bench that in the case of false imprisonment, substantial damages must be awarded in every case where a person has wrongfully deprived another person of his liberty and would respectfully follow the foregoing dictum of their Lordships, but taking all the circumstances of the case into consideration, we have come to the conclusion, that the sum of Rs.50,000,00 (Rs. fifty lac) is on the higher side. Accordingly, it requires reduction and it would meet the ends of justice, if the same is reduced to Rs.20,000,00 (Rs. twenty lac).

13. No other ground was agitated at the bar by the learned counsel for the appellants.

14. Accordingly, we maintain the impugned judgment and decree of the learned trial Court but on partial acceptance of this appeal, reduce the decretal amount of Rs.50,000,00 (Rs. fifty lac) to Rs.20,000,00 (Rs. twenty lac) with proportionate costs, to be borne by appellant No. 1, throughout. H.B.T/497/P Order accordingly.