P L D 1965 (W (PLP)

WAHIDUDDIN AHMED, J.‑

This judgment will dispose of two Letters Patent Appeals, namely, Letters Patent Appeal No. 103 of 1960 and Letters Patent Appeal No. 28 of 1961 from the judgment of a learned Single Judge in Suit No. 451 of 1952 dated 11th October 1960, on the original side of this Court, in which common questions of fact and law are involved. By this judgment the claim of Sardar Muhammad Ali and others for damages was decreed in the sum of Rs. 10,000 with proportionate costs. The learned Single Judge further passed a decree in favour of the plaintiffs for the return of the movable articles belonging to them lying in the Malkhana of the City Court. The rest of the claim in suit was dismissed with costs.

2. Sardar Muhammad Ali one of the appellants in Letters Patent Appeal No. 28 of 1961 and his late wife Sahibzadi Amir Begum instituted the above‑mentioned suit in forma pauperis on 24th September 1949, on the original side of this Court for the recovery of Rs. 25,00,000 as damages for false imprisonment and value of the goods lost or detained against the Federation of Pakistan. Out of this amount Rs. 21,67,265 represent damages for mental shock, physical pain and humiliation caused to them and members of their family and Rs. 3,32,735 represent the value of cash, jewellery and other household effects of which they were deprived by the illegal action of the officers of the Central Government. Mst. Sahibzadi Amir Begum died on 4th August 1953, during the pendency of the suit and appellants Nos. 2 to 12, who were sons and daughters are her legal representatives. After her death the claim in suit so far as the general damages were concerned was confined only to his false imprisonment. The legal representatives of the deceased Mst. Sahibzadi Amir Begum are only interested in the return of the movables or their value.

3. The material facts involved in these appeals are that Sardar Muhammad Ali alongwith his family came from India on 2nd July 1948, in a railway carriage arranged for them by the Government of India via Pakistan on their way to Afghanistan. In the year 1914, Sardar Mohsin Khan, the father of this gentleman, who was the son of His Majesty Dost Mohammad Khan, at one time the King of Afghanistan and few others were suspected of having a hand in the conspiracy to murder Habibullah Khan, the father of King Amanullah Khan of Afghanistan and, therefore, his entire family and a few others were expelled from that country. For sometime they were kept by the British Government at Peshawar and later on were trans ferred to Meerut in which place they settled down permanently. As members of the Royal Family of Afghanistan the British Government was paying them some allowance for their mainten ance and education of their children. After Partition the Government of India declared that no Pathans whether they were money‑lenders or others would be allowed to stay in India. The appellant and his family, therefore, sought help of the Afghan Consul in New Delhi and obtained passports for Afghanistan. The Government of India arranged that they should return to Afghanistan via Lahore and Karachi. On reaching Karachi they reported their arrival to the Afghan Embassy but were informed that they could not be allowed to enter into Afghanistan unless a special permission was received from the King of Afghanistan, and that in the meantime they should stay in the railway carriage. Sardar Mohammad Ali having no place to stay in Karachi continued to stay in the railway carriage. They also approached the District Magistrate for residential accommodation partly because it was inconvenient to stay in the carriage and partly because the railway authorities were pressing them to vacate the railway carriage which was at the platform but none was provided to them. Consequently, the appellant and his family refused to vacate the railway carriage and con tinued to occupy it and a portion of the platform of the Karachi Cantonment Railway Station.

4. On 25th December 1948, the railway authorities had to clear the platform as the Governor‑General of Pakistan was proceeding from Karachi Cantonment Railway Station. As the appellant No. 1 and his family refused to vacate the platform and the railway carriage, Mr. Tobin, Additional District Magistrate of Karachi accompanied by a police force and military 'guards reached on the spot to evict them. The appellant No. 1 and his family instead of vacating the railway carriage resisted and collected some Pathans to protect themselves. Thereupon, under the orders of the Additional District Magistrate the squatters were forcibly evicted and lodged in the Karachi Jail. During the course of eviction the movables belonging to the appellant and his family in the railway carriage were thrown out on the platform and the railway carriage was removed. Later on the movables and belongings of the appellant's family were locked in a railway goods van. During the pendency of the suit these articles were removed under the supervision of a Magistrate and deposited in the City Malkhana.

5. The order of the Additional District Magistrate under which the appellant and his family and sixteen other persons were detained vide Exh. 17/34 dated 25th December 1948, is reproduced below :‑ "Please receive these 28 persons who have been arrested under the Sind Maintenance of Public Safety Act, and detain them for 14 days till orders of the Government are received. The persons are 5 women and children and 23 men. The prisoners are inclined to be obstreperous, and arrange ments should be made for their separation into small groups." It is not disputed that the Additional District Magistrate Karachi was not competent under the Sind Maintenance and Public Safety Act to pass an order of detention. In certain circumstances the District Magistrate could only keep under preventive detention an undesirable person for fifteen days. However, the detenues were produced before the District Magistrate on 7th January 1949, when they were remanded till 11‑1‑1949 on which date they were further remanded by him till 26th January 1949. Out of these 28 persons 16 did not belong to the family of the appellant No. 1 and were not parties to the suit. They were Pathan5 alleged to have been hired by the appellant to help them in resisting their eviction from the railway bogies. Two of the detenues were released on 8th January 1949, and 14 were released on 11th February 1949, vide Exh. 17/41 on giving an undertaking of good behaviour.

6. It appears from the record that the authorities were conscious of the fact that the order of detention passed by the Additional District Magistrate was illegal. The Department concerned suggested steps to regularise this illegal action. With this object, on 26th January 1949, the Administrator of Karachi passed an order under the above‑mentioned Act detaining the appellant No. 1 up to 30th April 1949, vide Exh. 17/39. Attention being drawn that the detention of the other persons was also illegal and without authority, on 11th February 1949 a further order was passed in respect of 10 persons including Sardar Muhammad Ali vide Exh. 17/42. On 11th February 1949, the Administrator of Karachi passed an order Exh. 17/47, attempting to regularise the detention of appellant No. 1 and the others which is reproduced below:‑-- "Whereas the Administrator of Karachi is satisfied that with a view to preventing Sardar Mohammad Ali, Sardar Mohammad Iqbal Ali Khan, Sardar Hassan Ali Khan, released Sardar Abdul Rehman Khan, Sardar Zaffar Ali Khan, Sardar Hamid Ali Khan, Aisha Sultana, Shah Gul, Bibi Gul and Aftab Ali Khan from acting in a manner prejudicial to the public safety and the maintenance of public order it is necessary to make the following order: Now, therefore, in exercise of the powers conferred by clause (a) of subsection (1) of section 2 of the Sind Maintenance of Public Safety Act 1948 (XV of 1948), 1, S. Hashim Raza, Administrator of Karachi direct that the said person Sardar Mohammad Ali Khan and 11 above referred persons shall be detained in the custody upto 30th April 1949, from the date on which they were arrested."

7. None of these steps created any healthy effect. Through out their detention in the Karachi Central Jail, appellant No. 1 and his family have been protesting and refused the offer of the Administration to release them on condition that they would not press the authorities for the residential accommodation. They even resorted to hunger strike. During the internment in Jail Sardar Hassan Ali Khan, a 19 years old son of the appellant No. 1 died. This led him to move the Administrator, Karachi, vide Exh. 17/62 for his and the family's release on the assurance that they would not trouble the Government on the subject of their residential accommodation. Accordingly, they were released on 5th April 1949. After the release on 17th June 1949, appellant No. 1 and his wife gave a notice under section 80, C. P. C., to the Federation of Pakistan and filed the above‑mentioned suit from which the two Letters Patent appeals under consideration have arisen.

8. Appellant No. 1 and his wife alleged in the plaint that they have suffered in body and in mind as a result of maltreatment and illegal and malicious detention in the Karachi Central Jail and that the Administration illegally and wrongfully took hold of the cash, jewellery and household effects etc., worth Rs. 3,32,735 belonging to them which was left behind in the bogie when the family was evicted from it. The rest of their claim in the sum of Rs. 21,67,265 is in the nature of general damages for mental shock, physical pains and humiliation caused on account of illegal detention and false imprisonment. As already observed the general damages were claimed both on behalf of Sardar Mohammad Ali appellant No. 1 and his deceased wife. But after the death of Sahibzadi Amir Begum, this claim was considered only in respect of the mental shock, physical pains and humiliation caused to appellant No. 1.

9. The respondent resisted the suit inter alia on the ground that the appellant No. 1 and his family stayed at Karachi Cantonment Station and occupied the railway carriages illegally and without permission and unauthorisedly. It was alleged that not only they refused to vacate the railway carriages but also began to create trouble in order to put undue pressure on the Government to fulfil their unreasonable demands. They cordoned off a portion of the platform by Qanats (tents) and did not let the public and railway staff to use that part of the platform. Their attitude towards the railway staff was alleged to be obstructive and insulting. They were inclined to be obstreperous and disobeyed the externment order issued by the Administrator of Karachi in November 1948.

10. With regard to the happening of the 25th December 1948, it was alleged that it had become necessary to remove the carriage from the side of the platform where it was standing as the Governor‑General was entraining on that night from the Cantonment Railway Station and his Special was to be brought on the same siding. It was pleaded that the appellant and his family did not allow this and collected about 30 persons including men armed with fire‑arms. Since the situation had become dangerous, the Additional District Magistrate accompanied with a platoon of armed police reached the spot and informed the appellant No. 1 about the removal of the carriage and gave them an hour's time but the appellant's family were determined to resist this and some of them laid themselves on the railway line. They were therefore, removed by the police and sent to Jail. The allegation of the appellant that the police lathi charged and assaulted and during this the late Sahibzadi Amir Begum, who received severe injuries had to be removed to the hospital, was denied. On the other hand it was stated that she received the injuries as a result of a fall. The Administration also denied that the police had taken away the valuables and other movable property belonging to the appellant. It was admitted that whatever was thrown on the platform were put in a railway goods wagon by the armed police, but the value of the said articles was not admitted to be more than Rs.

300. With regard to the death of Sardar Hassan Ali Khan it was stated that he was put into the Jail hospital as soon as the authorities were informed of his illness and he died a sudden death. The claim for damages was denied in toto and so was the liability of the Government of Pakistan in that respect. The defence about the return of the property was that appellant No. 1 neither applied for it properly nor paid a huge amount, which was dye frown them as demurrage for the occupation of the railway carriage and the fault, if at all, lay with him.

11. On these pleadings as many as 14 issues were framed which are reproduced below:‑- "(1) Was the plaintiff No. 1 and Sahibzadi Amir Begum entitled and/or authorised to stay in Karachi Pakistan and to remain in occupation of railway carriage after their arrival in Karachi? (2) Was the plaintiff No. 1 and Sahibzadi Amir Begum entitled to be provided with residential accommodation for them and their companions at Karachi and was the defendant bound to provide the same ? (3) Was the plaintiff No. 1 Sahibzadi Amir Begum illegally removed from the railway carriage and subject to unwarranted assaults, disrespect and humiliation? (4) Was the plaintiff No. 1 and Sahibzadi Amir Begum maliciously and illegally detained without reasonable or probable cause? (5) Did plaintiff No. 1 and Sahibzadi Amir Begum suffer any troubles and losses and is the defendant liable for the same? (6) Was plaintiff No. 1 and Sahibzadi Amir Begum entitled to any damages, if so to what amount? (7) Did the police take over the cash, valuables and pro perties detailed in Schedule B annexed with the plaint, belonging to the plaintiff and Sahibzadi Amir Begum and of the value of Rs. 3,32,735 only and is the defendant liable for the return of the same or Rs. 3,32,735? (8) Did plaintiff No. 1 and Sahibzadi Amir Begum serve the defendant with a valid notice under section 80, C. P. C., if not, what is its effect? (9) Is the suit of the plaintiff legally maintainable and can plaintiffs claim the relief in suit as heirs of Sahibzadi Amir Begum ? (10) Has the Court jurisdiction to decide about the legality of the order of detention and the action taken by defendant against the plaintiff No. 1 and Sahibzadi Amir Begum? (11) Have the plaintiffs any cause of action and does the plaint disclose any? If not what is the effect? (12) Is the defendant entitled to costs under section 35‑A, C. P. C. (13) (a) Is the suit bad for misjoinder of plaintiffs and causes of action, if so what is its effect? (b) Is the defendant not rightly described, if so what is its effect? (14) To what relief, if any, are plaintiffs or any of them entitled?" On these issues the learned Single Judge's finding is that appellant No. 1 and deceased Sahibzadi Amir Bugum were not entitled to occupy the railway carriage after their arrival in Karachi. He held that both of them and their family were liable to be removed from the railway carriage. In this connection any use of force or disrespect or humiliation, which resulted to them, was caused by their own conduct in resisting their eviction from the bogie. On Issue No. 4 it was held that the detention of appellant No. 1 and his deceased wife Mst. Sahibzadi Amir Begum amounted to false imprisonment from the date of their entry in jail until 26th January 1949. On issues Nos. 5 and 6 it was held that appellant No. 1 alone was entitled to damages for false imprisonment and on no other account. The heirs of Sahibzadi Amir Begum were not entitled to maintain any claim in respect of any personal injury to her including false imprisonment. On issue No. 7 it was held that the police did not take over the cash, valuables and property as detailed in Schedule "B" of the plaint. The appellants were entitled only to the return of the articles lying in the city Malkhana, vide Exh.

29. On these findings the learned Single Judge granted a decree to the appellant No. 1 in the sum of Rs. 10,000 with proportionate costs and further passed a decree for the return of the articles lying in the Malkhana. The rest of the claim was dismissed with costs. Both the parties are aggrieved by this judgment. The Federation of Pakistan has filed Letters Patent Appeal No. 103 of 1960 and Sardar Mohammad Ali and the legal representatives of late Sahibzadi Amir Begum have filed Letters Patent Appeal No. 28 of 1961.

12. After hearing the learned counsel for the parties we are satisfied that on the evidence produced by the parties the finding of the learned Single Judge that the misfortune of Sardar Mohammad Ali and his family was largely caused by the most obstinate and unjustifiable attitude of Sardar Mohammad Ali himself is not open to any exception. Mr. Ali Ahmed Fazd6, the learned counsel for Sardar Mohammad Ali was unable to satisfy us that he had any right whatsoever to continue to occupy the railway bogies when he was asked to vacate them. There is not the slightest doubt in our mind that he and his family by their continued occupation of a part of the platform and by cordoning a portion of it by tents became a serious nuisance and a cause of serious inconvenience to the railway authorities. On 25th December 1948, Sardar Mohammad Ali was asked to vacate the bogies but he and his family refused to do so on the ground that they should be provided some alternative accommodation. Though no oral evidence was produced on behalf of the Government of the actual incident which took place on the 25th of December 1948, but on the evidence produced by Sardar Mohammad Ali and other documentary evidence produced on the record it cannot be doubted that the respondent Government officers were fully justified in removing the said Afghan Family from the railway bogies platform occupied by them. Immediately after the incident Mr. B. L. Tobin the then A. D. M. commented on the notice sent to the Government under section 80, C. P. C. In Exh. 19/6, a letter dated 17/19th December 1949, the officer concerned explained the circumstances in which the appellant's family was evicted. The contents of this letter are fully corroborated by other evidence on the record. The only conclusion at which one can arrive is that the appellant's family precipitated the trouble and the action taken against them was necessary to maintain law and order in the locality affected.

13. But the most important question for consideration is whether the detention of Sardar Mohammad Ali in the Central Jail from 25th December 1948, till 26th January 1949 (when the fresh order of the Administration was passed) amounted to false imprisonment entitling him to claim damages from the. Government. Shah Jamil Alam, the learned counsel for the Federation of Pakistan contended before us that the two essential ingredients which are necessary to establish the plaintiff's claim were not proved in the case. He contended that it was not established that the officers of appellant Government had without any reasonable or probable cause brought about the arrest of the plaintiff' No. 1 and acted with malice. He, therefore, contended that no action for damages could lie against the Federation of Pakistan. In our opinion, the contention of the learned counsel is without substance. It is now 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 the plaintiff' to prove malice and want of reasonable and probable cause on the part A of the Government officers in causing his wrongful arrest and detention. Mr. Ali Ahmed Fazeel, the learned counsel for Sardar Mohammad Ali referred us to two Indian decisions. Both in Lalta v. Asharfi Lal (A I R 1948 Oudh 135) and Brajendra Kissore Roy Chaudhury v. L. O. Clarke (12 C W N 973) it was held that in such cases it was not necessary that the plaintiff' had to prove malice and want of reasonable and probable cause. In the last mentioned case it was further held that the bona fides of a Magistrate in conducting a search does not, release him from the obligations the law casts upon him. The only effect of acting in a bona fide manner is that his conduct will not be taken so as to award exemplary damages for wrongful action.

14. It was next urged by the learned counsel appearing on behalf of the Government that the order of detention by Mr. Tobin was not an illegal order but he failed to refer us to any provision of law to justify its legality. The detention order discloses that it was issued under the Sind Maintenance of Public Safety Act, 1948 and the appellant and his family were detained for fourteen days till orders of the Government were received. On reference to the relevant statute it cannot be doubted that the Additional District Magistrate had no jurisdiction to pass it. No doubt an order of preventive detention for fifteen days could be passed by the District Magistrate under section 2, sub‑clause (2) of the Act, but neither any such order was passed nor could the detention be justified on that basis. Shah Jamil Alain justified the detention on the ground that after the remand of the detenues on 7th January 1949, by District Magistrate it had become legal. In our opinion, the remand of Sardar Mohammad Ali and his family was also illegal because the learned District Magistrate did not pass any order under the Sind Maintenance of Public Safety Act, 1948. It was faintly argued that since Sardar Mohammad Ali and his family had disobeyed the externment order, their arrest and detention should be taken for its disobedience under the Sind Maintenance of Public Safety Act. This contention is an after thought because the externment order was served on the Afghan family on 17th November 1948, under section 2 (1) (b) of the said enactment and on its disobedience no action for prosecution as contemplated in it, was taken against the offenders. It was then urged that the detention should be treated to be under section 151, Cr. P. C. But on the facts of this case this plea also is of no help because Sardar Mohammad Ali and his family were not arrested by any police officer but were detained in the Central Jail, Karachi under the Sind Maintenance of Public Safety Act. There is thus no escape from the finding that the action of Mr. Tobin in lodging Sardar Mohammad Ali and his family and detaining them in Karachi Central Jail was absolutely illegal and cannot be upheld on the ground that such detention could be justified if proper action had been taken under the relevant provisions of law applicable on the fact of this case against the offenders. We, therefore, respectfully agree with the finding of the learned Single Judge that the detention of Sardar Mohammad Ali in the Karachi Central Jail from 25th December 1948, till 26th January 1949, amounted to false imprisonment. We also find no force in the argument advanced at the hearing that the Government should be absolved from all the responsibility in respect of, the illegal detention because in the absence of malice and existence of reasonable and probable cause the suit for damages could not succeed against Mr. Tobin. 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.

15. In the past there was lot of controversy on the question of the liability of the Government in cases of tort committed by its officers. But it has been set at rest by a recent decision of their Lordships of the Supreme Court in the case of Pakistan v. Mohammad Yaqoob Butt and others (P L D 1963 S C 627). The following observa tion of their Lordships speaks for itself:‑-- "It is well settled, and even learned counsel for the appellant is forced to concede that the Government would be liable if‑ (i) It takes the benefit of property illegally detained by its servants ; or (ii) it had ratified the tortious act of its servants. Neither of these propositions needs the support of elabo rate reasoning. If the Government takes the benefit of illegally detained property it cannot be allowed to repudi ate its liability and if it ratifies the act of its servant it adopts that act as its own. In fact, at least ordinarily, cases falling under the first class, will be cases falling under the second class too, for when Government takes the benefit of property it ratifies the act of its servant." Thus now it is a well settled rule of law that the Government is not liable in tort for the wrongful acts of its servants or improper conduct of its public servants unless those acts had been done under the orders of the Government or had been subsequently adopted or ratified by it. The question of ratification of the illegal action of Mr. Tobin has an important bearing on the facts of this case. On this point the finding of the learned Single Judge on consideration of the facts is that the Government had ratified the action of the officer concerned. Shah Jamil Alam, the learned counsel appearing on behalf of the Government, very candidly conceded that the detention order passed on 26th January 1949, was later on adopted and ratified by the Government. This position also emerges from important docu mentary evidence produced on the record. It is clear from the evidence that the illegality was immediately noticed in the Department. On 6th January 1949, the Secretary of the Karachi Administration vide Exh. 17/37 drew the attention of the District Magistrate to the illegal order passed by the then Additional District Magistrate. In this letter it is clearly mentioned that he had no powers to detain any person under the relevant enactment and acted without any legal authority in detaining the Afghan family and called for further information for rectification by the Administrator. In reply dated 3rd February 1949, (Exh. 17/43) the then District Magistrate admitted the illegality and explained that it was committed during his absence at Lahore when the police instead of producing the detenues before the Inspector General of Police took them straight away to the Additional District Magistrate, who realising the gravity of the situation had no alternative but to issue the order, which was a bona fide mistake capable of rectification. This led the Administration to devise means to legalise the action. At first an order dated 10‑2‑1949 was passed. This was found to be defective and had to be amended by order dated 11th February 1949, vide Exh. 17/47 which is in the following terms:-- "Whereas the Administrator of Karachi is satisfied that with a view to preventing Sardar Mohammad Ali, Sardar Mohammad Iqbal Ali Khan, Sardar Hassan Ali Khan, released Sardar Abdul Rehman Khan, Sardar Zaffar Ali Khan, Sardar Hamid Ali Khan, Ashia Sultana, Shah Gul, Bibi Gul and Aftab Ali Khan from acting in a manner pre judicial to the public safety and the maintenance of public order it is necessary to make the following order :‑ Now, therefore, in exercise of the powers conferred by clause (a) of subsection (1) of section (2) of the Sind Mainten ance of Public Safety Act 1948 (XV of 1948), I. S. Hashim Raza, Administrator of Karachi direct that the said person Sardar Mohammad Ali Khan and 11 above referred persons shall be detained in the custody up to 30th April 1949, from the date on which they were arrested." It is not disputed that the Administrator was fully competent to pass this order. In view of Governor‑General's Order No. 15, Pakistan (Establishment of the Federal Capital) Order, 1948, dated 23rd July 1948, read with Notification bearing No. 1/2A/48, under clause 5 of the said order the Administrator of Karachi was competent to exercise the power of the Provincial Govern ment as executive authority in all matters included in list II of the Seventh Schedule to the Government of India Act with effect from 23rd July 1948. In fact he had been empowered to exercise in respect of Karachi all the powers and duties conferred or imposed on the Government of Sind under any enactment etc., subject to such general or special instructions as may be issued from time to time by the Central Government. Thus the Adminis trator of Karachi as Provincial Government ratified the illegal order passed by the then Additional District Magistrate on behalf of the Government. It cannot, therefore, be doubted that the Government ratified the illegal action of the officer concerned. Therefore, in the light of the above decision of the Supreme Court the respondent Government is liable for the tortious acts o committed by Mr. Tobin, one of its officers posted in Karachi. In these circumstances the contention of the Government that no suit for damages lies against it cannot be accepted and must be repelled.

16. Lastly it was urged by Shah Jamil Alam that the damages awarded in this case are exemplary. It is argued that since the motive of the officer of the Government in detaining Sardar Mohammad Ali and his wife was to maintain public order in the locality of Karachi, it is a fit case in which only token or nominal damages should have been awarded. In our judgment, this contention also has not much force. Mr. Ali Ahmed Fazeel, the learned counsel for the respondent has referred us to two decisions in support of his contention that in such cases substantial damages should be awarded. In Santdas Idanmal v. Province of Sind (A I R 1945 Sind 93), Tayabji, J. on review of the case‑law came to the conclusion that substantial damages must be awarded in ever case where a person has wrongfully deprived another person o his liberty. The reasoning of this view is that the person detained necessarily suffers discomfort and inconvenience as a result of his loss of liberty and any wrongful deprivation of the liberty of person in any case is a most serious affair, and pressure of work or negligence cannot be any excuse for detaining any person without observing the law in the strictest manner and should be adequately compensated. In Rajah Pedda Vencatapa Naidoo Bahadur v. Arpovala Roodrapa Naidoo and Paupa Naidoo (2 I A 504) the Judicial Committee in a case in which a Zamindar having discharged his Dewans and Tahsildars, for alleged misconduct ejected them from a house and other premises claimed and occupied by them for above 20 years and to which he could himself show no title, except as being within his Zamindary. He further caused the discharged officers to be placed under personal restraint and seized all their property situate within his Zamindary. On a suit filed by the injured persons for the resto ration of possession of the premises and for compensation in damages, the courts below awarded each of them a decree in the sum of Rs. 300 for wrongful restraint. It was urged that the amount of damages was excessive but their Lordships repelled this contention on the following pertinent observations :‑ "But let us first examine very shortly the different heads, according to which compensation has been awarded by the decree of the Sudder, and it will de found upon looking at them that each of the grounds taken in that decree is perfectly we, sustained. The first question is with regard to tile injury done to the person. There certainly is ample evidence that the plaintiffs, that. is, the now respondents had their persons put under restraint by order of the Rajah, and for that restraint there has been an award of Rs. 300 each which appeared to the Court below to be a proper compensation. And we certainly are not in a condition to say that that compensation is improper or excessive. It is not merely for the inconveni ence which they sustained, but probably that sum was awarded by way letting the Zamindars know that they ought not to exercise any supposed authority which they received in con travention to the law. There seems to have been an impression that the Zamindar had a right to restrain the persons of his officers in case he thought proper so to do; and to do away that impression, it was right that there should be more than merely nominal damages for that restraint, in order that the Zamindars might know henceforth that they could not proceed upon any such supposed custom. It appears, therefore, to their Lordships that there is no impropriety in the award of the sum of Rs. 300 each as compensation for the injury which they thus sustained." On the view taken in the last mentioned authority it is not possible to hold that in a case of false imprisonment nominal damages can adequately compensate the aggrieved party. In such case on the other hand in order that the authorities might know that they could not proceed illegally as a rule substantial damages should be awarded. In cases where the Government officers acted bona fides, the only possible consideration that can be shown would be that exemplary damages are not awarded. In the light of the above discussion no exception can be taken to the finding of the learned Single Judge on this point. We are in respectful agreement with his finding that it is a fit case in which substantial damages should have been awarded. No other points are urged on behalf of the Government. We would, therefore, dismiss the appeal filed on behalf of the Government with costs.

17. This brings us to the consideration of the appeal filed on behalf of Sardar Mohammad Ali and others. Appellant No. 1's main grievance is that the learned Single Judge has not assessed proper damages on the material brought on the record. Mr. Ali Ahmed Fazeel, his learned counsel argued that the damages have been assessed without taking into consideration all the important factors and circumstances involved in the case. In this connection it will be noticed that Sardar Mohammad Ali and his wife claimed a huge amount of Rs. 21,67,265 (Rupees twenty‑one lacs sixty‑seven thousand two hundred and sixty‑five) as damages for mental shock, physical pain and false imprison ment. At the trial, due to the death of the co‑plaintiff the claim had to be confined only to the extent of appellant No. 1's false imprisonment. In this respect the learned Single Judge has only awarded Rs. 10,000 to him. The learned counsel pressed before us certain circumstances and special features of the case for showing that damages awarded have not beau assessed on proper basis, Evidence on the record was referred to show that appellant No. 1 belonged to one of the Royal Afghan family and enjoyed a respectable position in the society, who was put to constant torture, humiliation and sufferings. Besides he was humiliated in the public eye and had to suffer the rigours of jail life, which not only shock his health but also of the members of the family. He further referred us to the unfortunate calamity which befell the appellant family in the death of Sardar Hassan Ali Khan, one of his young sons, during their detention in Jail. He strongly contended that damages awarded are not in keeping with the dignity and income enjoyed by him. The learned counsel then referred us to the evidence which showed that Sardar Mohammad Ali and his family before coming to Pakistan were receiving Rs. 200 per month as maintenance allowance, and Rs. 300 for the education of his six children from the British Government. Evidence was also referred for establishing that appellant No. 1 was a gentleman of independent means and owned considerable private property. On the strength of this evidence the learned counsel argued that the amount of Rs. 10,000 awarded by the learned Single Judge should be held to be insufficient.

18. After careful consideration of the evidence produced by the parties we have come to the conclusion that the damages awarded by the learned Single Judge in the circumstances of the present case are adequate. In the first place, it will be noted that the learned Single Judge was considering only the damages caused to the appellant Sardar Mohammad Ali. So far as the claim of late Sahibzadi Amir Begum is concerned it had abated on her death and no consideration could possibly be given for any humiliation or mental shock or injuries caused to her. It will be further noticed that in the suit no damages are claimed by the other members of the family of Sardar Mohammad Ali and for this reason no consideration could have been given to, any humiliation or mental pain or shock caused to them. In such circumstances the proper course was to assess damages only for the false imprisonment or wrongful detention of Sardar Mohammad Ali. Admittedly the income of appellant No. 1 in India before coming to Pakistan was not more than Rs. 500 per month. Considering this income it is not possible to hold that the damages awarded to him are inadequate. There appears to be no foundation in the contention that the learned Single Judge did not consider all the circumstances or aspects of the case. On this aspect of the case the learned Single Judge observed as under "As for the quantum of damages I must take note of the fact that the misfortune of Sardar Mohammad Ali and his family was largely caused by the most obstinate and unjustifiable attitude of Sardar Mohammad Ali himself. He had no right whatever to continue to occupy the railway bogies when he had been asked to leave and vacate them. I can clearly imagine that he and his family by their continued occupation of a part of the platform and by enclosing a portion of it by tents must have been a cause of serious inconvenience to the railway authorities. Even on 25th of December it is a matter of admission that Sardar Mohammad Ali was asked to vacate the wagons but he refused to do so, which, he says, was because they had nowhere to go to. Though no evidence has been led on behalf of the defendant of the actual incident which took place on the 25th of December, it is quite clear that Sardar Mohammad Ali had collected at least 16 other Pathans who were prepared to support his stand and who were prepared to go to jail with him. I have referred to the relevant documents to show that they did not belong to the family of the plaintiffs and were soon released from jail on promise of good behaviour. Even in the jail, the jail authorities on the orders of the Administrator, were prepared to release Sardar Mohammad Ali if he gave an undertaking that he would not press for the residential accommodation but he was not amenable to this condition. I fail to understand by what right Sardar Mohammad Ali could insist upon being provided residential accommodation for himself and his family by the Government and on their failure to do so, make themselves into a nuisance. As the learned A. A.‑G. aptly put it, that hundreds or thousands of people came from India after partition and if on arriving in Karachi they had similarly refused to vacate the railway carriages or the ships in which they arrived the situation would have become impossible and one which no Government could tolerate." The learned Single Judge further observed :‑-- "Taking all the circumstances into consideration I have come to the conclusion that a sum of Rs. 10,000 (Rupees ten thousand) would be adequate damages on that account." It would thus be noticed that the learned Single Judge has placed all the responsibility of the trouble resulting in appellant No. 1's arrest on him. This, therefore, is not one of those cases in which it can be held that the aggrieved party was detained without any probable cause or on mala fide ground. In such circumstances the appellant concerned was only entitled to substantial damages and not to special damages. It is in this context that the damages were to be assessed on considering the circumstances. We are satisfied that the damages were assessed on proper basis and no exception can be taken to the amount awarded to appellant No. 1.

19. We will now proceed to consider the other claim of the appellant, in respect of movable property including cash and jewellery alleged to have been left by Sardar Mohammad Ali and Sahibzadi Amir Begum in the railway carriages from which they were forcibly evicted on 25th December 1948. The appellant in this respect claimed in the suit a total amount of Rs. 3,32,735 (Rs. three lacs thirty‑two thousand seven hundred and thirty‑five). The learned Single Judge has rejected it and has only passed a decree for the return of the goods lying in the City Malkhana (vide Exh. 29). Mr. Ali Ahmed Fazeel strongly urged that the finding of the learned Single Judge on this part of the claim should not be upheld. It will be noticed that this claim is based under two main heads. The first part of the claim refers to the cash amount in the sum of Rs. 96,000 (Rupees Ninety six thousand) alleged to have been left in the bogies. The other part of the claim consists of the jewellery of the total value of Rs. 1,50,000 (Rupees one lac fifty thousand) and 100 sovereigns, 50 silver coins and other valuable property of the value of about Rs. 50,000 (rupees fifty thousand) alleged to have been left behind in the bogies. The learned Single Judge has rejected both the items. Appellants' learned counsel contended that the learned Single Judge has wrongly disbelieved the oral evidence produced in support of them. He further referred us to the list of the goods deposited in the Malkhana by comparing it with the items mentioned in another list Exh. 16/41 and argued that most of the goods belonging to the appellants were lost. It was contended that in law the respondent Government is bound to compensate for the loss caused to the appellants in respect of the above‑mentioned valuable items.

20. After going through the evidence produced by Sardar Mohammad Ali and others on this point we are satisfied that the evidence about the cash, jewellery etc., is most unsatisfactory and no reliance can be placed on the oral evidence on this aspect of the case. In support of the proof that the appellants had Rs. 96,000 in cash with them reliance was placed on the appellant No. 1's statement and the statement of P. W. 4 Amir Ali. This witness stated that appellant No. 1 before migration to Pakistan sold his horses for Rs. 50,000 and his Kothi for Rs. 19,

000. Much importance cannot be attached to such evidence. It was quite easy for the appellants to produce docu mentary evidence about the sale of the Kothi and horses in Meerut. No attempt was made to produce such important evidence. In these circumstances the learned Single Judge was] fully justified in rejecting the appellants' evidence on this claim. Mr. Fazeel laid much stress on the fact that this evidence stood unrebutted. This reason is not sufficient for the acceptance of oral evidence largely depends on the confidence that it inspires, which is completely lacking in this case. The evidence on the alleged items of jewellery is also of the same nature. P. W. 3 Abdul Shakoor stated that when appellant No. 1 and his party were evicted from the bogies, their trunks and cash box along with other belongings were taken out and kept on the platform. This evidence also does not inspire much confidence. In any case it does not lead to the conclusion that appellants' family was possessed of so much valuable jewellery and it was lying in the Trunks and so called cash box. It is difficult for us to believe that the appellants who were alleged to be in possession of so much cash and jewellery would allow these valuables to be kept in such unsafe condition. Normally such valuable property is kept in safe custody. Had the appellants family possessed of such valuable property they would not have exposed themselves to obvious risks and would have taken immediate steps to acquire private residential accommodation. The learned counsel next referred us to certain irregularities committed in the arrest of the appellant. He referred us to the fact that no entry was made in the Jail Register about the articles which were on the persons of Sardar Mohammad Ali and his wife Sahibzadi Amir Begum. It is quite correct but this by itself cannot substantiate or establish the genuineness of the claim. In the absence of other satisfactory evidence this circumstance has no evidentiary value.

21. Mr. Ali Ahmed Fazeel then referred us to the inventory prepared on 24th November 1950, Exh.16/41 and another inventory prepared on 11th October 1954, Exh.

27. He invited our attention to the fact that item No. 25 of the first list was missing from the items mentioned in the list prepared on the second occasion. In law at best the position of the respondent Government in respect of the movable property belonging to the appellant was that of a bailee. There is ample evidence to establish that proper steps were taken to keep the movable property left at the Railway station in safe custody. For sometime it was kept in wagon No. 31686, which was locked and sealed in the presence of a Magistrate (see Exh. 18/22). On the second occasion also the property lying in the wagon was removed under the supervision of a Magistrate. Thus it is perfectly clear that on both the occasions after preparing the inventory the goods were kept in a safe place and proper steps were taken to protect it. In these circumstances even if some goods had been lost no responsibility can be placed for its loss on the bailee. Further, it is not possible for us, on the material G brought on the record, to hold that any valuable items of movable property belonging to the appellants were lost while they were in the custody of the respondent Government, by the negligence of its servants. We would, therefore, maintain the order of the learned Single Judge and dismiss the claim of the appellants in this respect.

22. In the result appeal of plaintiffs (appellants) is dismissed. The respondent Government in this appeal will bear their own costs. The question as to who should bear the costs of Court‑fee payable in pauper suit and appeal has received our anxious consideration. Ordinarily a successful party is only entitled to proportionate costs but under the provisions of Order XXXIII, rule 10 and Order XLIV, C. P. C., the Court may in the exercise of its discretion, having regard to the circumstances of a case mould its decree according to what the justice of the case requires with reference to the court‑fee payable. In the special H circumstances of this case we would direct that the entire Court fee payable by the appellants in the suit and appeal should be borne by the respondent Government. This will be added as costs awarded to the plaintiffs (appellants) in the suit and appeal filed by them and will be recovered from the respondent Government for payment towards the Court‑fee due to the Government. K.B.A. Appeal dismissed.