P L D 1961 (W (PLP)

FAROOQI, J.‑

This suit was instituted in forma pauperis on 24‑9‑49 by the two plaintiffs Sardar Muhammad Ali and his wife Sahibzadi Amir Begum for the recovery of Rs. 25,00,

000. Of this Rs. 21,67,265 is claimed on account of damages for mental shock, physical pain and humiliation of the ladies of plaintiff's family and Rs. 3,32,735 on account of cash, jewellery and other household effects of which the plaintiffs claimed to have been deprived by the action of the defendant. Pakistan is the sole defendant. Permission to sue as paupers was granted to the two plaintiffs on 15‑5‑52 after which the plaint was accordingly registered.

1. The plaintiff No. 2, Sabibzadi Amir Begum, died on 4‑8‑1953 and the present plaintiffs No. 2 to 12, who are the sons and daughters of the plaintiffs 1 and 2, were brought on record as her legal representatives.

2. The material allegation in the plaint and as stated by the plaintiff No. 1 in his evidence is as follows: The plaintiff No. 1 is the great grandson of His Majesty Dost Muhammad Khan who was at one time the King of Afghanistan. In the year 1914 there was a conspiracy to Murder Habibullah Khan, the father of King Amanullan Khan of Afghanistan. The plaintiff No. 1's father Mohsin Khan and! a few others were suspected of having a band in that conspiracy and therefore Mohsin Khan and his family including the plaintiff No. 1 and 2 few others were expelled from Afghanistan and came to India where the British Government kept them for sometime at Peshawar, from where they were transferred to Meerut where they lived ever since. The plaintiff No. 1 claims that his father Mohsin Khan and thereafter he himself was getting allowance from the British Government for their maintenance and for the education of their children. After partition the Government of India declared that no Pathans whether they were money lenders or otherwise would be allowed to stay in India. This greatly perturbed the plaintiffs, who with the help of the Afghan Consul in New Delhi got passports for Afghanistan and it was arranged by the Government of India that they should return to Afghanistan via Lahore and Karachi. The plaintiffs left Meerut on the 2nd of July and reached Karachi on the 10th. Having reached here they reported their arrival to the Afghan Embassy where they were told that they would not be allowed to enter Afghanistan unless a special permission was received from the King of Afghanistan, and that in the meantime they should stay in the railway carriage. The plaintiff No. 1 then approached the District Magistrate and other authorities in Karachi for residential accommodation partly because it was inconvenient to stay in the carriage and partly because the railway authorities were pressing them to vacate it. But as no residential accommodation was provided for them they continued to live in the railway carriage which was stationed at a side platform of the cantonment Railway Station. Early in November 1948 an externment order was served on the plaintiff No. 1 from the office of the Administrator of Karachi but no action was taken on it and in early December he was told by the District Magistrate, Karachi that they would be allowed to stay in Karachi provided that he did not press the Government for residential accommoda tion. The plaintiff No. 1 did not agree to this and he and his family held on to the carriage. Then on 25‑12‑48 a police force accompanied by military guards and led by Mr. Tobin A. D. M. Karachi came to throw the plaintiffs out of the carriage and on protest from them a lathi charge was made by the police force and the whole family including women and children were assaulted anti Sahibzadi Amir Begum, mother of the plaintiffs 2 to 12, received a severe wound on her nose and was removed to Jinnah Hospital with handcuffs and shackles. The plaintiffs including one Sardar Hassan Ali (who died in the hospital) were all taken to Karachi Central .fail. where they were lodged. All their belongings had been left Behind at the railway station. On 28‑1‑49 the Superin tendent of Jail, Karachi called the plaintiff No. 1 in his office and communicated to him a message from the administrative authorities to the effect that plaintiff No. 1 and his family would be released unconditionally provided no accommodation was demanded by them. To this he did not agree and so the detention continued. On 16‑2‑49 an order of the Administrator of Karachi was conveyed to the plaintiffs Nos. I and 2 stating that they were detained under the Public Safety Act retrospectively from 25‑12‑48 and shall continue to be detained till 30th April 1949. The plaintiffs made representations written and oral for their release and for the return of their property which had been left by them in the railway carriage but this was to no effect and only one of the sons namely, Sardar Abdul Rehman was released on 25‑2‑49 as he had to appear in the B. A. Examination. On 5‑3‑49 the plaintiffs and their family members went on a hunger strike in consequence of which they were put in cells in solitary confinement. The hunger strike was called off on or about 11‑3‑49 on the intervention of one Mr. Qureshi, a public worker. One of the sons Sardar Hassan Ali, who was aged 19, fell ill in the jail and died on 4‑4‑49, and then on 5‑4‑49 the plaintiff No. 1 and his remaining 11 family members were released on 5‑4‑

49. It is alleged that the plaintiffs suffered in body and mind as a result of all this maltreatment and detention which was malicious and that the administration illegally and wrongfully took hold of the cash, jewellery and household effects etc. worth Rs. 3,32,735 which was left behind in the bogie when the family was evicted from it. The remaining claim of Rs. 21,67,265 is by way of general damages for mental shock, physical pain and humiliations. All this claim was made by the original plaintiffs 1 2 and namely Sardar Muhammad Ali and his wife Sahibzadi Amir Begum. It might be mentioned here that though after the death of Sahibzadi Amir Begum the original plaintiff No. 2, the title of the plaint was amended by showing her legal representatives yet in the body of the plaint there was no amendment and so "the plaintiffs" in the amended plaint only refer to the two original plaintiffs.

3. In the written statement filed on behalf of the defendant it was said that the plaintiffs and their party after arriving at the Karachi Cantonment Station continued to occupy the railway carriage and refused to vacate it until residential accommodation of their own liking was provided to them by the defendant. It was stated that their stay at Karachi and occupation of the railway carriage was without permission, illegal and unautho rised; that the plaintiffs were asked to vacate the railway carriage which they refused to do and instead began to create trouble in order to put undue pressure on the defendant to fulfil their un tenable demands. They cordoned off a portion of the platform by Qanats (tents) and did not let the public and railway staff use that part of the platform. They kept on making impossible demands and insulting the railway staff and obstructing them in their duties. Even loading and unloading of wagons from .the side of the platform where the carriage of the plaintiffs was stationed used to be stopped by them. They had thus paralysed the railway administration and had threatened to occupy the quarters of some non‑Muslim railway servant by force. The serving of the externment order on the plaintiff No. 1 was admitted which was not obeyed, With regard to the happening of the 5th December 1946 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 was entraining on the night of the 25th December 1948 from the Cantonment Railway Station and his special was to be brought on the same siding. The plaintiffs did not allow this and collected above 30 persons including men armed with fire arms. The situation having become dangerous the Additional District Magistrate accompanied with a platoon of armed police reached the spot and informed the plaintiff No. 1 about the removal of the carriage and gave them an hour's time but the plaintiffs' party 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 as detenues. The allegation of lathi charge and assault was denied. With regard to the injury of the plaintiff No. 2 Sahibzadi Amir Begum it was said that this was as a result of a fall. The taking away of the valuables and other property by the police was denied and it was stated that the contents of the carriage occupied by the plaintiffs were put in a railway goods wagon by the armed police. It was alleged that the value of the said articles was not more than Rs.

300. It was denied that any application was made on behalf of the plaintiffs for their release or the release of the goods. With regard to the alleged maltreatment in jail and the hunger strike it was said that the plaintiffs were making impossible demands even in the jail and on refusal went on hunger strike as a coercive measure; that they gave up their hunger strike on 11‑3‑

49. With regard to the death of Sardar Hasan 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. On his death the plaintiffs requested for the release and promised not to harass the Govern ment any further. They were accordingly released. The claim for damages was denied in toto and so was the liability of the defendant in that regard. With regard to the return of the property, the possession of which was admitted, it was said that a huge amount was due from the plaintiffs as damages for their occupation of the railway carriage.

4. The following issues were framed:‑. "(1) Was the plaintiff No. I and Sahibzadi Amir l entitled and/or authorised to stay in Karachi Pakistan remain in occupation of railway carriage after their err Karachi. (2) Was the plaintiff No. 1 and Sahibzadi Amir l entitled to be provided with .residential accommodation them and their companions at Karachi and was the def bound to provide the same? (3) Was the plaintiff No. 1 and Sahibzadi Amir illegally removed from the railway carriage and subjected to unwarranted assaults, disrespect and humiliation? (4) Was the plaintiff No. 1 and Sahibzadi Amir maliciously and illegally detained without reasonable or probable cause? (5) Did plaintiff No. I and Sahibzadi Amir Begum suffer any troubles and loses 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 properties detailed in Schedule B annexed with the plaint, belonging to the plaintiff and Sahibzadi Amir Begum and of the value Rs. 3,32,735 only and is the defendant liable for the return same or Rs. 3,32,735? (8) Did plaintiff No. I and Sahibzadi Amir Begum serve the defendant with a valid notice under section 80, C. I 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 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 mis-joinder of plaintiffs and causes of action, if so, what is its effect. (b) Is the defendant not rightly described, if so, w its effect? (14) To what relief, if any, are plaintiffs or any of them entitled?

5. It is necessary at this stage to state the correct position of the claim as it now stands. As has been stated earlier this suit was instituted only by Sardar Muhammad Ali and his wife, the original two plaintiffs. Notice under section 80 of the Civil Procedure Code had also been given only on their behalf and it were they who were allowed to sue as paupers. It was on the death of the plaintiff No. 2 that the present plaintiffs 2 to 12 were brought on record as her legal representatives. Therefore, apart from the claim for the return of the property or its value, the claim for damages on account of false imprisonment, pain, suffering and assault would have to be necessarily restricted to such claim as the original two plaintiffs could make on their own account. It has not been urged and could not have been urged that the father and the mother could claim compensation for the alleged tort committed to their children, for which the claim f would have had to be made by the children themselves. Further more, after the death of Sahibzadi Amir Begum her right of action in regard to tort relating to her detention, injury and humiliation must be held to have died with her on the principle of actio personalis moritur cum persona. No statutory exception was pleaded. Her claim having abated on her death in respect of personal wrong the same could not lave been inherited by the present plaintiffs 2 to

12. This position was conceded by Mr. Sohail, the learned counsel for the plaintiff: We are, therefore, left with the consideration of the plaintiff's claim for the return of the articles or the value thereof and the claim of the plaintiff No. 1 for damages for his own wrongful detention amounting to false imprisonment. The mental shock and the physical pain which was made the ground of the claim in Schedule A of the plaint was also construed in relation to the false imprisonment of the plaintiff No. 1 only. The claim for damages "for humiliation of ladies of the plaintiffs' family" was not pressed and could not have been pressed. The plaintiff No. 1 was not entitled to make that claim in his own name. And it was on this basis that the case was argued by Mr. Sohail on behalf of the plaintiffs.

6. I shall first deal with the claim for damages based on false imprisonment. But before I go on to deal with the detention itself it is necessary to state the circumstances that led up to it and which have emerged from the oral and documentary evidence and which are not really in dispute. The circumstances under which the plaintiffs left India and came to Karachi en route to Afghanistan, have been deposed to by the plaintiff No. 1 Sardar Mohammad Ali Khan. It is not necessary to go into all the details of his evidence on this point. It is sufficient to state that his father and his family were expelled from Afghanistan on the ground that they had some complicity in the murder of Habibullah Khan the father of King Amanullah Khan of Afghanistan, where alter they remained in Meerut until the partition of the Indian Sub‑continent and were given certain political allowance by the British Government. Sardar Muhammad Ali has stated that after partition the Government of India had declared that no Pathan (from Afghanistan) whether a money lender or otherwise would be allowed to stay in India and that this declaration had greatly perturbed him so that he approached the Afghan Consul at Delhi who got them passports for going to Afghanistan, and on the 2nd of July 1948 they left Meerut and reached Karachi on the 10th of July via Lahore. He says that he and his family stayed on the railway platform in the bogie in which they travelled and though in great distress they did not leave it because no accom modation was provided for them by the Government. He approached Shah Wali Khan, who was the then ambassador for Afghanistan in Pakistan about their going to Afghanistan but as it was apprehended by the Afghan ambassador that if he or his family were able to enter Afghanistan they might at sometime make a claim to the Afghan throne they were told that they will not be allowed to do so unless the Afghan Government permitted such an entry. This permission never came. He then made an important admission to the effect that seeing the attitude of Afghan ambassador they themselves did not want to go to Afghanistan any longer because they apprehended that they might be killed there any moment. The obvious inference of this admission is that after the plaintiffs came to know of this attitude they had decided to settle down in Karachi as Pakistan nationals; in fact Sardar Muhammad Ali claims that he and his companions have acquired Pakistani nationality.

7. Sardar Muhammad Ali and his family continued to live in the bogie at the railway platform on the siding of the Cantonment Railway Station from where they were evicted on 25th December, 1948 by Mr. Tobin, A. D. M. Karachi and removed to Central Jail. But, therefore, I deal with the event of the 25th of December it is necessary to take note of certain events as they emerged from the official documents produced in the case and admitted by the plaintiffs. Exh. 17/13 is a letter dated 20th October, 1948 from the District Magistrate, Karachi to the Administrator, Karachi complaining bitterly of the attitude of Sardar Muhammad Ali Khan who was determined not to vacate the railway carriage and about his threat to occupy a railway quarter in possession of a non‑Muslim railway employee and suggesting to the Administrator that the said Sardar should be extended from Karachi. Exh. 17/23 dated 17th November 1948 is an externment order issued by Mr. Hashim Raza, the then Administrator, directing Sardar Muhammad Ali that he shall not be in any place in the area of Karachi. This order was served on Sardar Muhammad Ali on 19‑11‑48 and bears his signature on the reverse. Exh. 16/2 is the letter dated 3rd December 1948 from the N. W. Railway Authorities to the District Magistrate Mr. Ishaq expressing their anxiety at the continued occupation of Sardar Muhammad Ali and his family of the railway carriage and asking for action for their removal at an early date. On 24th December 1948 the District Magistrate sent a letter to the Superintendent, Police, Sind Railways, Exh. 17/24, saying that as Sardar Muhammad Ali had not vacated the two railway bogies in spite of the externment order he should be arrested forthwith and produced before the First A. C. M. Karachi for disobeying legal orders and his family should be made to vacate the railway bogies and in case of their refusal action should be taken against them under the Indian Railways Act.

8. What happened on 25th December 1948 may be stated in the word of Sardar Muhammad Ali himself because surprisingly enough no evidence of the incident has been led on behalf of the defendant. This is what he says:‑ "In this state of affairs we stayed in the bogie for about 6 months and then on 25th December 1948 Mr. Tobin who was then the Additional District Magistrate, Karachi came to the railway station with a police party and also some military. They surrounded our bogie and turned us out of the bogie by force. We were not prepared to leave the bogie because we had no place to go to. They beat us and my wife received injury on her nose: Others were also injured. All of us including our small children were then sent to the Karachi Central Jail." The order of the Additional District Magistrate under which the plaintiffs and 16 others were detained is Exh. 17/34 and is dated 25‑12‑

48. It may be reproduced:‑ "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 arrangements should be made for their separation into small groups". It is not disputed that the Additional District Magistrate, Karachi had no power under the Sind Maintenance of Public, Safety Act to pass an order of detention. That power was given to the Provincial Government and was exercised by the Administrator after the separation of Karachi from the rest of Sind. The District Magistrate, however, had power under that Act to order detention only for 15 days. These 28 persons were detained in the Karachi Central Jail and appear to have been produced before the D. M. on 7‑1‑49 when they were remanded till 11‑1‑49, on which date they were further remanded by the D. M. till 26‑1‑

49. It may be noted that of these 28 persons 16 did not belong to the family of the plaintiff and are not parties to the suit. They were Pathans and are alleged to have been hired by the plaintiffs to help them in resisting their eviction from the railway bogies. Of these 16 persons 2 were released on 8‑1‑49 and the remaining 14 were released on 11th February, 1949 as per Exh. 17/41, on their promise of good behaviour.

9. It was realised that the order of detention passed by the A. D. M. for 15 days and the subsequent detention under the orders of the D. M. were illegal and so on 26th January 1949 the Administrator of Karachi passed an order under the said Act detaining the plaintiff No. i up to 30th April 1949 as per Exh. 17/39. On the same day the Secretary to the Adminis trator addressed a letter Exh. 17/37 telling the District Magistrate that having regard to the provisions of the Sind Maintenance of Public Safety Act, the orders passed by the A. D. M. and the D. M. were illegal and without authority. The D. M. accepted this position by his letter dated 3rd February 1949, Exh. 17/43. As the order dated 26th January 1949, Exh. 17/39, was only in respect of Sardar Muhammad Ali a further order was passed by the Administrator on 11th February 1949, Exh. 17/42, which was in respect of 10 persons including Sardar Muhammad Ali. The two children were excluded. As how ever we are concerned only with regard to the‑ claim of the plaintiff No. 1 for damages for false imprisonment the omission of the other persons from the first order is of no consequence.

10. After the letter of the D. M. dated 3rd February 1949 was received by the Administrator and it was realised that the detention of these persons in pursuance of the orders of the A. D. M. and D. M. was illegal the Administrator passed an order on 11th February 1949, Exh. 17/47 attempting to regularise the detention as from the date of arrest. This may also be reproduced:-- "Whereas the Administrator of Karachi is satisfied that with a view to preventing Sardar Muhammad Ali, Sardar Muhammad Iqbal Ali Khan, Sardar Hassanali Khan, Sardar Abdul Rehman Khan, Sardar Zaffar Ali Khan, Sardar Hamid Ali Khan, Ashia Sultana, Shah Gul, Bibi Gul and Aftabali 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 Main tenance of Public Safety Act, 1948 (XV of 1948), I, S. Hashim Raza, Administrator of Karachi direct that the said person Sardar Muhammad 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."

11. It is a matter of admission that the Superintendent, Karachi Central Jail had in pursuance of the directions of the Administrator offered to release these persons on condition that they did not press the authorities for the residential accommodation, but Sardar Muhammad Ali was not prepared to give this undertaking. They, therefore, continued to remain in jail when on the evening of 4th April 1949 Sardar Hassan Ali Khan, a 19‑year old son of the plaintiff No. 1, died in the Central jail and it was only then that Sardar Muhammad Ali applied to the Administrator as per Exh. 16/62 paying for their release and assuring him that if they were released they will not trouble the Government on the subject of their residential accommodation. They were accordingly released on 5th April 1949. A notice under section 80 was then sent on behalf of Sardar Muhammad Ali and his wife Amir Begum on 17‑6‑49 followed by the present suit.

12. The first question which arose was whether the claim of the plaintiffs which is based on tort was maintainable against Pakistan. I heard Mr. Sohail for the plaintiffs and Mr. Jamil Alam for the defendant at some length on this question and having regard to the importance of the question I issued notice to the Additional Advocate‑General Mr. Khalid Ishaque, who was good enough to appear and I had the benefit of hearing him also. Mr. Sohail's contention was as follows:-- That the detention of Sardar Muhammad Ali in pursuance of the order of the A. D. M. was illegal for the first 15 days and so was his further detention till 26‑1‑49 on the short ground that the A. D. M. had no power whatsoever do order such a detention and thereafter the orders of remand by the D. M. were equally illegal for the same reason. In fact, the D. M. himself never passed any order of detention. It was then contended that this illegal detention was adopted and ratified by the Administrator by his order, Exh. 17/47, and that for that reason Pakistan became liable in damages to the plaintiff No. 1 for having ratified the acts of her servants viz. the A. D. M. and the D. M. It was pointed out that the Administrator had no power to pass an order of detention with retrospective effect and, therefore, the order of the Administrator Exh. 17/43 could not legalise the detention of Sardar Muhammad Ali from 25th of December 1948 till 26th of January 1949, on which day he passed his first order of detention. It, however, did have the effect of owning up in fact of the illegal act by the Government.

13. Karachi was separated from the rest of Sind on 23rd July 1948 in consequence of G. G. O. No. 15, Pakistan (Establish ment of the Federal Capital) Order, 1948 dated 23rd July 1948 and Notification No. 1/1/48‑Kar. Section 5 of the said Order reads as follows:-- "The executive authority of Karachi shall be exercised by the Governor‑General either directly, or to such extent as he thinks fit, through an Administrator to be appointed by him, and that authority shall also extent to all matters included in List 11 of the Seventh Schedule to the Act." There was then a notification issued on the same date bearing No. 1/2‑A/48‑Kar., the relevant portion of which reads as follows:‑ "In pursuance of Article 5 of the Pakistan (Establishment of the Federal Capital) Order‑, 1948, the Governor‑General is pleased to direct that, subject to such general or special instructions as may from time to time be given to him by the Central Govern ment, the Administrator shall, with effect from the 23rd July 1948, and except as provided below, have, in respect of Karachi, all the powers and duties conferred or imposed on the Government of Sind under any enactment, notification, order, rule or bye‑law referred to in Article 6 of the said Order: Provided that the powers conferred on the Government of Sind under section 241 of the Government of India Act, 1935, shall, in the case of gazetted posts in connection with the affairs of Karachi, be exercised by the Central Government and not by the Administrator." On the basis of these provisions it was pointed out that the act of the Administrator in ratifying the acts of the A. D. M. and the D. M. amounts to a ratification by the Government. This is plainly so and this position was not seriously contested by the learned counsel for the defendant.

14. The question of ratification became of paramount importance because it was conceded by the learned counsel for the plaintiffs, and rightly so, that the Government could not ipso facto, be held liable in tort for the wrongful acts of its servants or acts done by them in excess of their authority.

15. On behalf of the defendant it was conceded that neither the A. D. M. nor the D. M. had the power to detain the plaintiff No. 1 from the 25th of December till the 26th of January, as they did, and that the detention was, therefore, without any legal sanction. It was further conceded that the Administrator had no power under the Act to give a retrospective operation to his order as he purported to do by Exh. 17/47. So that the detention of the plaintiff No. 1 from the 25th of December 1948 till the 26th of January 1949 when the Adminis trator passed his first order remained illegal, and it is for the detention during this period that damages are claimed.

16. The main contention of Mr. Khalid Ishaque, the learned A. A. G., was that the immunity of the State in respect of all claims arising out of tort was absolute; that there was no ratification in law by the Administrator of the acts of the A. D. M. and the D. M., and lastly that the defendant could not be held liable in damages unless it could be shown that its servants namely, Mr. Tobin and the D. M. could themselves be so held liable. Mr. Jamil Alain appearing for the defendant substantially followed the same line with this exception that according to him the liability of Pakistan in such cases would be to the same extent and no more than the liability of the Secretary of State for India, whose liability in turn was in the same manner as the liability of the East India Company. I shall now proceed to examine these contentions

17. The rule of absolute immunity of the Crown was based upon the old principle of the English Constitution that the King can do no wrong. That which the sovereign did personally, the law presumed will not be wrong; that which the sovereign did by command to his servant could not be a wrong of the sovereign. because if the command was unlawful it was in law no command and the servant was responsible for the unlawful act in the same way as if there had been no command. This was held as far back as 1864 in the case of Tobin v. The Queen (16 C B (N. S.) 310, 354).

18. The other reason why the principle of respondent superior was not applied generally to cases of wrongs committed by Government servants was that a servant if he was acting within the scope of his authority under the law any injury resulting from such act would not give a cause of action against anyone. On the other hand, if the servant acted in excess of authority that would be an unauthorised act of the servant for which he himself would be held liable but that liability could not be extended to the master. A departure was thus made from the principle which governed ordinary employers in respect of their liability for the act of their servants in the course of their employment.

19. The absolute immunity of the State has always been recognised both in England and in the Indian Sub‑continent in respect of acts done in the exercise of sovereign powers which do not profess to be justified by Municipal Law. These are called acts of State such as making war or treaty, annexation of a State, fixation of political pension, acts done in the defence of a realm and similar other acts.

20. The law in the United Kingdom with regard to the action in tort against the Crown has been completely changed by the passing of the Crown Proceedings Act of 1947, under which, with a few exceptions, the Crown can be sued in tort like any other employer for the wrongful acts of its servants. But even before the legislation in this respect, though a suit against the Crown was not maintainable in respect of a tort the redress was sought by a petition of right. So that it is not quite accurate to say that there was an absolute immunity of the Crown in respect of tortious acts of its servants.

21. Now let me examine as to what is the position in this country. For this it would be necessary to examine the historical background. The sovereignty in India for all practical purposes lay in the East India Company under the Charter of 1833 until it passed to the Crown by the Government of India Act of 1858. The East India Company had been engaged both in trade and business and also in the administration of the territories which gradually came to its jurisdiction. The Crown as the successor of the Company constituted itself a corporate defendant in the form of a Secretary of State for India in Council as its representative for the purpose of being sued. This was provided by section 65 of the Act of 1858. This position was maintained in the successive constitutional acts viz. section 32, Government of India Act, 1919, and section 176, Government of India Act, 1935. I would like to reproduce section 176 as it stood after it was adopted in Pakistan on partition:‑ "

176. Suits of proceedings.‑(1) The Federation may sue or be sued by the name of the Federation of Pakistan and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred on that Legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretary of State in Council might have sued or been sued if this Act had not been passed. (2) Neither the Federation nor a Provincial Government shall be liable to be sued or shall be deemed to have been so liable on any date subsequent to the fourteenth day of August 1947, under the provisions of subsection (1) of this section or under the provisions of subsection (2) of section 15 of the Indian Independence Act, 1947 (10 & 11 Geo. 6, c. 30), in any Court other than a Court duly constituted in any Governor's Province, or a Chief Commissioner's Province or in the Capital of the Federation." Section 176 was substantially maintained by Article 300 of the Indian Constitution and it may be of some interest to note that in our late Constitution Article 136 maintained the position substantially as far as the earlier Part of section 176 was con cerned but omitted the reference to the Secretary of State which occurred in the latter portion of section

176. It was urged on behalf of the plaintiffs that by the said omission it was con templated to enlarge the scope of the liability of Pakistan in respect of suits against it free from the previous limitations. I do not, however, find it necessary to go into that question for the purposes of the present case and I will proceed upon the basis that Pakistan may sue or be sued in the like cases as the Secretary of State in Council might have sued or been sued. But, even upon this basis it appears to me that the position in the Indian Sub‑continent and now in Pakistan has been materially different from the position of the Crown in England as it stood in this matter.

22. The question which then arises with reference to the facts of the present case is whether by the adoption or ratification of the illegal act of the A. D. M. and the D. M. with regard to the detention in jail of the plaintiff No. 1 Pakistan can be held liable in damages. But before I go on to deal with it I must first deal with the contention of the learned A. A. G. that there was no proper ratification in this case. His argument in short, was that the ratification of an illegal act by the Government can only be under its legislative powers and in this connection he gave the instance of the Acts of Indemnity which are passed for the purpose of protecting the officer who may have acted without authority in a given situation. He further contended that inasmuch as the Administrator of Karachi did not have the power under the Sind Maintenance of Public Safety Act to pass an order of detention with retrospective effect he had no power to either adopt or ratify the acts of the A. D. M. or the D. M. I do not agree. If the illegal or unauthorised act of a Government servant is effectually legalised by the Govern ment under some statutory authority, the illegal act itself disappears and there would then be no room for a claim for damages. It is not that kind of ratification which is contemplated in the context. What is contemplated is the factual ratification by the Government of an unauthorised or illegal act committed by its servant without making it a legal act. In a somewhat similar case which related to the seizure of rice by the Additional District Magistrate of Midnapore, a similar argument was advanced on behalf of the State of West Bengal in the case State of West Bengal v. Produce Trader's Corporation (A I R 1959 Cal. 597) and though it was not found necessary in that case to decide that question the learned Judges did express themselves as follows:‑ "The substance of the argument is that, as, in law, ratifica tion can only be made by one having the competence to do the act to be ratified, the State cannot, in law, ratify the illegal seizure when it had no power, under the law, to make the seizure itself. The argument is, no doubt, plausible and attractive but we do not think that it merits acceptance. Ratification in the present context, that is, in relation to the State's liability for the illegal or unlawful acts of its officer, is to be understood in its loose or popular sense or dictionary meaning of approval or confirmation of the act and adoption of all its benefits and liabilities (obligation), that is, all its consequences, and not in its strict legal sense, if that means that there can be no ratification except by a person or authority, competent and or having the power to do the act, to be ratified, validly, as, otherwise, by ratification the illegal act itself would become valid, being rendered by such ratifica tion, the legal act of such a competent person or authority, and the liability or claim for damages for the same would disappear. By the ratification, in its said legal sense, the tort would disappear and, along with it, the claim or liability for damages. It would then be useless, and unmeaning too, to say that the State would be liable for tortious acts of its officers and servants if it ratified the same and that proposi tion which is now a well‑established and firmly settled or accepted proposition would become a meaningless platitude. We would, therefore, reject this submission of Mr. Chakravarty." I respectfully agree with these observations and reject the conten tion of the learned A. A. G. on that point.

23. Going back to the question of liability of the Govern ment on the ground of ratification, I will now proceed to examine the case‑law on the subject. One of the oldest cases which has been frequently cited is the one in The Collector of Masulipatam v. C. V. Narainapah (8 M I A 529). The relevant observation appears at pages

554. The Government in this case was claiming a property by escheat and it was the contention of the opposite party that the Crown was estopped by the act of the former Collector Mr. Grant from disputing the title asserted by him (opposite party) under a Razinamah. Upon these facts their Lordships observed as follows:‑ "The acts of a Government officer bind the Government only when he is acting in the discharge of a certain duty within the limits of his authority, or, if he exceeds that authority, when the Government in fact, or in law, directly, or by implication, ratifies the excess." Their Lordships then went on to say that the Collector had no authority to waive the rights to which the Government might become entitled by the escheat.

24. In Hari Bhanji v. The Secretary of State for India in Council (4 I L R 1882 Mad. 344) which was a case in which the Collector of Malabar had wrongly imposed certain amount of duty on imported salt in the belief that he was authorised by law and his action was ratified by the Government, it was held that, assuming the Collector's act to be illegal, a suit to recover the amount so levied would lie against the Secretary of State for India in Council. At page 351 the learned Judge observed as follows:‑ "I think the rule in India as to the responsibility of Govern ment to its own tribunals for the acts of its servants is different from that in England. It is apparent from the preamble to the Bengal Regulation III of 1793, as is noticed in the Fifth Report of the Select Committee of the House of Commons . . . . ." He has then reproduced the words of the preamble which are these:‑ "The Government have resolved that the authority of the laws and regulations lodged in the Courts of Justice shall extend not only to all suits between native individuals, but that the officers of Government employed in the collection of the revenue, the provision of the Company's investment, and all other financial or commercial concerns of the public shall be amenable to the Courts for acts done in their official capacity in opposition to the regulations, and that Government itself, in superintending the various branches of the resources of the State, may be precluded from injuring private property, they have determined to submit the claims and interest of the public in such matters to be decided by the Courts of Justice, in the same manner as the rights of individuals."

25. In Secretary of State for India in Council v. Moment ((1912) 40 I A 48) their Lordships of the Judicial Committee considered the effect of section 65 of the Government of India Act, 1858. The proceedings out of which this appeal arose related to an ordinary dispute about a title to land in the course of which there emerged a claim to damages for wrongful interference with the plaintiff's property. Under section 41 (b) of Act IV of 1898 Burma, it was enacted that no Civil Court was to have jurisdiction to determine a claim to any right over land as against the Government. Their Lordships reproduced the relevant portion of section 65 of the Act of 1858 which was as follows:‑ "The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company", and went on to hold "that the effect of section 65 of the Act of 1858 was to debar the Government of India from passing any act which could prevent a subject from suing the Secretary of State in Council in a Civil Court in any case in which he could have similarly sued in East India Company." The judgment of the Court below was upheld by their Lordships and it was in effect held that suit for damages for wrongful interference with the plaintiff's property in land would have lain against the East India Company. In M. A. Kader Zailany v. Secretary of State (A I R 1931 Rang. 294) which was a case regarding the vicarious liability of the Government in respect of a claim for damages for malicious prosecution, it was observed at page 300 as follows:‑ ". and the general rule seems to be that Government is not liable for wrongs done by its officers unless the wrongful act is done either by its order, or on its behalf being subse quently ratified or adopted by it." In Maharani Grucharan Kaur of Nabha v. Province of Madras (A I R 1944 F C 41) the Federal Court of India was dealing with a case for damages against the Province of Madras on account of the wrongful detention at the Kodaikanal Road Station for a short while of the Maharani of Nabha by certain police officers under a misunder standing of a telephonic message, whereby the Maharaja and not the Maharani and her children were ordered to be restrained. Their Lordships of the Madras High Court; from whose judgment this appeal was preferred, had held that the State could not be held liable for the improper conduct of the public servants unless those acts had been done under the orders of the Government or had been subsequently adopted and ratified by it. Their Lordships of the Federal Court upheld this view. The relevant passage occurs at page 44 of the report.

26. I have already quoted the passage from the decision in State of West Bengal v. Produce Trader's Corporation wherein it was observed that "it would be useless and unmeaning too‑to say that the State would be liable for the tortious acts of its officers and servants if it ratified the same and that proposition which is now a well‑established and firmly settled or accepted proposition would become a meaningless platitutde."

27. In a case of this Court in Muhammadi Steamship Co. Ltd. v. Federation of Pakistan (P L D 1959 Kar. 232) it was held by Qadeeruddin, J. that the Federation of Pakistan would be responsible for the tortious act of its servants if the same was ratified and confirmed by the Government. The relevant discussion appears at pages 249 and 250.

28. The learned A. A. G. relied on the case of Etti and another v. The Secretary of State for India in Council (I L R 1939 Mad. 843). In that case, the plaintiff's infant son who had been admitted in the Govern ment hospital was handed over to somebody else and in spite of the best efforts the plaintiff was not able to find the child. In a suit against the Secretary of State for damages for negligence of the hospital authorities it was held that the Secretary of State for India was not liable for the tort of the servants employed in the hospital. This decision has no application to the present case, because the claim in that case was rejected on the ground that the Government in maintaining the hospital for the benefit of the public at the expense of the public revenues was discharging a proper function of Government in the exercise of its sovereign powers and not engaged in a business or commercial undertaking. No question of ratification by the Government of a tortuous act arose in this case. The other decision in Secretary of State v. A. Cockcraft (39 Mad. 351) which was relied upon by the learned A. A. G. would also have no application to the present case because there also it was held that the maintenance of roads especially for military purposes was an exercise of the sovereign function of the Secretary of State for India and he would not be liable in damages for injuries sustained by a person coming against a heap of gravel stored on the road by a contractor.

29. The learned A. A. G. relied strongly on an observation of Cornelius, J. as he then was, in the case of Federation of Pakistan v. Ali Ahmad Hussain Shah (P L D 1955 F C 522). The passage relied upon appears at page 538 and may be usefully reproduced:‑ "It is conceded on behalf of the plaintiff‑respondent that at least in part, the suit does lie in contract. It is obvious that it cannot lie wholly in tort, for in that case it would be liable to dismissal on the short ground that no action in tort can lie against the Crown. Therefore, as was said by the Judicial Committee in the case of Mr. I. M. Lall (A I R 1948 P C 121), the present suit must be held to proceed either on the basis of contract or upon a right of action conferred by statute." The learned A. A. G. relying upon the sentence "no action in tort can lie against the Crown" contended that in view of this pro nouncement no action of any kind whatsoever in tort could be maintained against the State. I do not find it possible to accept this contention nor do I think that it is right to take that one small sentence out of the whole context in which it occurred and use it for a general proposition like the one advanced by the learned A. A. G. His Lordship in that case was dealing with the claim of a dismissed railway servant for a decree of Rs. 9,240 as pay, wherein it was contended by him that his right to receive salary was unaffected by the order of dismissal which was according to him, ultra vires. As would appear from the passage quoted above, his Lordship was relying on the case of High Commissioner for India in Pakistan v. I. M. Lall (A I R 1948 P C 121: P L D 1948 P C 150). The relevant passage appears at page 127 and may be usefully reproduced:‑ "It is unnecessary to cite authority to establish that no action in tort can lie against the Crown and therefore any right of action must either be based on contract or conferred by statute. It is sufficient to refer to the judgment of Lord Blackburn in the Scottish case in 1926 S C 842, in which the learned Judge, after reviewing the various authorities, states: "These authorities deal only with the power of the Crown to dismiss a public servant, but they appear to me to establish conclusively certain important points. The first is that the terms of service of a public servant are subject to certain quali fications dictated by public policy, no matter to what service the servant may belong, whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy no matter on what ground it is based, demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to in the engagement or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant: See (1920) 3 K B 663, 25 R 112 and other cases there referred to. It also follows that this qualification must be read, as an implied condition into every contract between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuner ation which can be enforced in a Civil Court of Justice, and that their only remedy under their contract lies in an appeal of an official or political kind.' Their Lordships are of opinion that this is a correct state ment of the law." Their Lordships of the Privy Council were considering the claim of the respondent I. M. Lall that he was entitled to recover by suit his arrears of pay from the date of the purported order of dismissal up to the date of the action. They repelled that claim on the reason ing in the Scottish case quoted above, viz: that the rule which was based on public policy prevented a public servant from suing the Crown for his pay on the assumption that his only claim was on the bounty of the Crown and that this qualification must be read as an implied condition into every contract of service between the Crown and a public servant with the effect that in terms of the contract he has no right to his remuneration which can be enforced in a Civil Court. It is in this context that the observation of my Lord Cornelius, J. in the above passage should be read, The particular point with regard to the disability of the Government servant from enforcing his claim for salary by means of an action in Court was further emphasised by his Lordship in the case of the State of Pakistan v. Mehrajuddin and others (P L D 1959 S C 147). When I put this aspect to the learned A. A. G. he had to concede that the considerations arising in service matters for the recovery of arrears of salary would be different from a claim in tort such as the one in hand. I am clearly of the opinion that the observa tion of my Lord Cornelius, J. referred to above was not intended to lay down a general rule that no action in tort could ever lie against the State in any circumstances. That this could not have been the intention is clear from the fact that there are well recognized forms of action in tort for which the State has been held to be liable such as cases in which the State has profited by the tortuous acts of its servants, where goods and chattels have been detained and where property of a private individual has been injured by the tortuous action of the State in the course of a commercial enterprise.

30. In view of the above discussion I have reached the con clusion that the principle of the immunity of the State in respect of an action in tort committed by its servants is subject to the following exceptions, viz: (a) where the tort has been committed in the course of an undertaking such as trade and commerce, in which the Government may be engaged and which are not in the exercise of its sovereign functions; (b) where the tort consists of the wrong ful detention of the goods and chattels of the individual or where the State has profited materially in some other way at the cost of the individual and by causing injury to him; and (c) where the tort committed by the servant of the State without or in excess of power has either been previously authorised by the State or has been subsequently ratified by it.

31. 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 then claim the immunity, the basis of which it has itself knocked out by the fact of ratification which makes the unauthorised act of the servant the act of the principal, namely, the Government itself.

32. It was further contended, though a little half‑heartedly, that the State in this case cannot be made vicariously liable for the false imprisonment because Mr. Tobin, the A. D. M. who passed the order of detention, was protected under section 22 of the Sin Maintenance of Public Safety Act, 1948. 1 agree that if Mr. Tobin himself could not have been held responsible the State would not be liable vicariously in damages for such detention, but it is plain to me that section 22 of the Act does not protect the A. D. M. Section 22 is the usual indemnity clause and reads as follows:‑ "No suit, prosecution or other legal proceeding shall lie against any person for anything in good faith done or intended to b done in pursuance of this Act." The A. D. M. had no power to detain any person under the Act. The power is given to the D. M. under subsection (2) of section 2 of the Act for ordering the detention of a person for a period not exceeding 15 days. This power admittedly did no devolve upon the A. D. M. and it is impossible to hold that in ordering this detention the A. D. M. could be said to have acted in good faith. Good faith presupposes the existence of due care and I do not see how the A. D. M. could have thought that he had the power to pass an order of detention. The power to detain a person without trial is an extraordinary power and can only be exercised within the limits of the statute and only by the persons who are authorised to do so. Normally this power vested in the Provincial Government, though it could be exercised by the D.M. in a limited way. I am, therefore, clearly of the opinion that the; A. D. M. was not protected under section

22. As regards the; further detention after the expiry of the first 15 days this was done merely by an order of remand by the D. M. which on the face of it was without any legal sanction. I have, therefore, no hesitation in rejecting this contention raised on behalf of the defendant.

33. For the foregoing reasons and upon the facts found by me I hold that the detention of Sardar Muhammad Ali in the Central Jail from 25‑12‑48 till 26‑1‑49 (when the fresh order of the Administrator was passed) amounts to false imprisonment and he is entitled to claim damages for it. As for the quantum of damages I must take note of the fact that the misfortune of Sardar Muhammad Ali and his family was largely caused by the most obstinate and unjustifiable attitude of Sardar Muhammad 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 Muhammad 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 Muhammad 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 autho rities on the orders of the Administrator were prepared to release Sardar Muhammad 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 Muhammad 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 of 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. But, the laws of our country do not justify even in these circum stances illegal detention of persons and though legally there is no claim before me on behalf of the children of Sardar Muhammad Ali and I am not taking that fact into consideration in awarding damages, I must say this much that there could be no justification for their detention. In fact, the Administrator in the first instance had only ordered the detention of Sardar Muhammad Ali alone. It may be that the rest of the family would have preferred to go to jail with Muhammad Ali but it should not have been difficult to separate them, if necessary, by minimum force. But that as it may, I am concerned in this case as it stands before me with the claim for damages for the false imprisonment of Sardar Muhammad Ali alone. 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. I hold accordingly.

34. The other claim which was pressed on behalf of the plaintiffs was in respect of movable property and cash of the value of about Rs. 3,32,735 alleged to have been left behind by the plaintiffs in the railway bogie and as detailed in Schedule B of the plaint. The plaintiffs have claimed the restoration of those articles or their value as stated above. Sardar Muhammad Ali has stated in his evidence that he had left in the bogie cash amount into Rs. 96,000 and jewellery of the total value of Rs. 1,50,

000. In addition he had left 100 sovereigns and 50 silver coins and other valuable property of the value of about Rs. 50,

000. In order to show that he had the means to possess all this property he has stated that he had sold his wife's house in Meerut for Rs. 19,000 and his 12 horses for Rs. 50,000, and that he was getting a pension of Rs. 200 per month and his children were getting Rs. 50 per month by way of educational allowance and that the jewellery was the same which the family had brought from Afghanistan. He has examined one Amir Ali, P. W. 4, who also migrated from Meerat after partition. He has stated that the plaintiff had sold his horses for Rs. 50,000 and his kothi for Rs. 19,

000. P. W. 3 Abdu-sh-Shakoor has stated that when the plaintiff No. 1 and his party were turned out of the bogie and had been taken away in a truck, all their belongings were taken out of the bogie and put on the platform. There were trunks and amongst them was a cash box. I have carefully examined all this evidence but I find it extremely difficult to believe that the plaintiff and the members of his party allowed the cash and jewellery and the sovereigns etc. behind them in the bogie. They had sufficient notice of the fact that they were going to be removed out of the bogie if necessary by force, and so the only natural thing for them to do would be either to remove all these valuables such as cash and jewellery, assuming that they did possess it, or to carry it along with them when they were being removed from the bogie. The evidence of D. W. 2 Shamsul Haq does not support the plaintiffs because it only shows that except Sardar Zafar Ali Khan none else had any cash with them. It may be that when they reached the jail they did not have any cash or jewellery with them but that would not establish that they had left behind all that cash and jewellery as is now alleged.

35. It is not possible to believe that the plaintiffs did not even draw the attention of the A. D. M. to these valuable assets. I also do not believe the plaintiff's evidence that he had so much cash and jewellery. If he had been possessed of so much means he would not have hung on to the railway bogie for 6 months under such difficult conditions and in considerable inconvenience and distress. He has said in his evidence that he tried on his own to obtain residential accommodation but no place was available, neither a house nor any accommodation in any hotel. I cannot accept this statement. The inference is irresistible that the plaintiff Sardar Muhammad Ali was in straitened circumstances and was therefore looking up to the authorities to provide him some accommodation.

36. The more important question however is whether the plaintiffs can hold the State responsible for any pilferage or theft or removal of the articles left in the bogie and thus claim its value. Mr. Sohail for the plaintiffs was not able to show how the res ponsibility for preserving the articles could devolve upon the State. There is no doubt that the plaintiffs were in the position of trespassers in the bogie and at the platform. They had no right to continue to occupy the bogie or the railway platform in defiance of the authorities, and so when they were removed from the bogie and their goods were put out of it the State had no responsibility to look after it or to preserve it. The State was not in the position of a bailee. The evidence of Sardar Muhammad Ali is that these goods were lying on the platform for the whole day and then they were put in a bogie. To the same effects is the evidence of P. W. 3 Abdush Shakoor. If therefore anything was pilfered or removed that would not give a cause of action against the State. In fact, even if the theft or pilferage was done by a servant of the State that would not provide a ground of action for damages in tort against the State unless it was found that it either ratified that act or had come to possess that property. Nothing of this kind has been proved in this case. According to the evidence of D. W. 3 Mr. Tahir Hussain, A. C. M. Karachi, the railway wagon was opened in his presence on 1‑12‑54 and the goods were taken out of it and an inventory of the goods in that wagon was prepared under his direction by the S. I. Railway. This inventory is Exh. 27 which bears the note that the seal of the wagon was broken open in the presence of the Magistrate and he has armed that this must be so. These articles were later removed to the Malkhana of the City Court and the entries of the articles are contained in Exh.

29. I have no reason to believe that the goods which were brought to the Malkhana were not the same as were put originally in a railway wagon after they had been removed from the platform or that there was any shortage. On this part of the claim therefore I hold that the plaintiffs are only entitled to receive the articles from the Malkhana as mentioned in Exh.

29. I order accordingly.

37. In the correspondence there is a claim made by the railway authorities for demurrage. There is no doubt that demurrage must have occurred by the continued illegal occupation of the plaintiffs of the bogie, but no evidence has been led to prove it in this case, and I must therefore hold that the claim for demurrage remains unproved.

38. In view of the findings given above, the issues are answered as follows:‑ Issue No. 1.‑--The plaintiff No. 1 and Sahibzadi Amir Begum were not entitled to remain in occupation of the railway carriage after their arrival in Karachi. They could have stayed in Karachi or anywhere else in Pakistan in the same way as any of the refugees who migrated from India after partition and consequently acquired Pakistan citizenship by continued residence. Issue No. 2.‑--In the negative. Issue No. 3.‑--The plaintiff No. 1 and Sahibzadi Amir Begum and others were trespassers and were liable to be removed from the railway carriage. Any use of force or disrespect or humilia tion, which resulted to them, was caused by their own conduct in resisting their eviction from the bogie. Issue No. 4.‑

The detention of the plaintiff No. 1 and Sahibzadi Amir Begum amounted to false imprisonment from the date of their entry in jail until 26‑1‑1949 for the reasons stated above. Issues Nos. 5 & 6.‑--The plaintiff' No. 1 alone is entitled to damages for false imprisonment as stated above an on no other account. The heirs of Sahibzadi Amir Begum are not entitled to maintain any claim in respect of any personal injury to her including false imprisonment. Issue No. 7.‑‑The police did not take over the cash, valuables and property as detailed in Schedule B of the plaint. The plain tiffs are entitled only to the return of the articles lying in the Malkhana as described in Exh.

29. Issue No. 8.‑--In the affirmative. Issue No. 9.‑--The suit is maintainable only to the extent stated above. Issue No. 10.‑

Does not arise and was not pressed. Issue No. 11.--‑The cause of action is limited in the terms of the findings given above. Issue No. 12.--‑In the negative. Issue No. 13 (a).‑

In the negative. Issue No. 13 (b).‑

The decree shall be against Pakistan. Issue No. 14.--‑I decree the claim of the plaintiff No. 1 for damages against Pakistan in the sum of Rs. 10,000 (Rupees ten thousand) with proportionate costs. I further decree that the plaintiffs shall be entitled to receive the articles lying in the Malkhana of the City Court as described in Exh.

29. The rest of the claim of the plaintiffs is dismissed with costs. A. H. Order accordingly.