1978 PLP 144 (SCMR)

DORAB PATEL, J.‑The respondent in this petition is a Doctor. He was working in the Lady Reading Hospital in Peshawar in 1971, and on 23rd of December 1971. he was returning home to his village, Sheikhan. About two furlongs from the village at about 6-30 P.M the Frontier Constabulary repeatedly fired at his car with the result that the respondent and other persons, who were in the car with him, were hit. The respondent's jaw and half of his tongue were completely blown away by the shots fired at him. This shocking incident led to an enquiry by Mr. Justice Abdul Hakim of the Peshawar High Court, who held "that the firing by the Constabulary wav uncalled for. In these circumstances it is not surprising that the second petitioner offered to compensate the respondent for the brutal attack on hire, but as the Government offered only Re. 1 lac as damages, the respondent rejected this offer and filed a suit for damages against the petitioners In the Court of Senior Civil Judge, Peshawar for a sum of Rs. 5 lace. The suit was contested by the petitioners, and although the pleadings of the parties have not been filed, it would appear from the judgment of tike triad Court that the petitioners denied liability for the amount claimed In the suit and advanced some legal objections such as that the suit was barred for multifarious ness and non‑joinder of parties, and limitation was also pleaded. However, it is clear from the judgment that the legal objections advanced were vague and feebly pressed. On the evidence produced, the learned Senior Civil Judge held that the Frontier Constabulary bad deliberately and wantonly fired at the respondent and that the petitioners were liable for the tortuous acts of their agents namely the Frontier Constabulary, therefore, he decreed the respondent's suit in the sum of Re, 3,55,232 with costs. The petitioner filed an appeal in the Peshawar High Court against this judgment and decree which was heard and dismissed by a learned Judge of the High Court on 19‑5‑1977. The learned Judge agreed with the trial Court's appreciation of evidence that the Frontier Constabulary had willfully and recklessly fired at the respondent without any justification in law, and as the learned Judge also agreed with the assessment of damages by t e trial Court, he dismissed the appeal by his judgment dated 19‑5‑1977. Hence the petition for leave. The learned Deputy Attorney‑General, stated that he would press the petition only on legal objections. This concession is proper because it is clear from the judgment of both the Courts that the respondent's case about the wanton attack on him was supported by amply evidence. But this means that tire petitioners are attempting, on technical pleas, to repudiate liability for a brutal and wanton attack on an innocent person, and this is not irrelevant to Mr. Lone's submission because the petition is a petition for special leave. Mr. Lone's first legal objects In that the respondent's suit was hit by section 17(3) of the North‑West Frontier Constabulary Act, 1915 (hereafter called the said Aft), which provided a limitation period of three months only, and as the suit was admittedly filed after three months the submission was, that the suit was time‑barred. Now as even according to the petitioners, the respondent was first treated locally and then sent to England for treatment, if this objection had been raised in the trial Court, it might have teen open to ire respondent to claim the benefit of section 5 of the Limitation Act. However, it is not necessary for us to go into the aspect of the case, because Mr. Lone was compelled to admit that too petitions had not, at any stage of the proceedings in either of the Courts, plea do the bar of section 17 of the said Act. Therefore we observed that it was not a fit case for the grant of appeal leave to examine an objection which should have been but was not raised in the Courts bellow. Learned counsel then submitted that this objection was a pure question of law and that we should grant leave to examine it, because this Court did permit parties to raise legal objections even though such objections had not been taken in the Courts below. It is true that this Court has in the exercise of its discretion, permitted parties to raise for the first time in this Court a legal objection not advanced in the Courts below. But the question is of the facts and circumstances of each case, and the instant cast is not one in which it would be just or equitable to giant leave to examine legal questions, which were either dropped or not raised in the Courts below. And this is fatal to the other submissions of Mr. Lone also. These other submissions were that the respondent's suit was not maintainable, because the respondent had failed to implead the constables who head committed the tortuous acts by firing at him, ant learned counsel even went to the length of arguing that the petitioners, as the employers of those constables, were not responsible for their tortious act,, because the Government was not liable for tortious acts of its employees. Now this objection that the Government was not responsible for the acts of its employees was not raised either in the trial Court or in the High Court Next, as to the submissions about the joinder of parties, they were expressly dropped in the 13igh Court, and the learned Additional Advocate General, C who had appeared for the State, had limited his arguments to criticism of the quantum of damages awarded. Confronted with this difl9culty Mr. Lone submitted that counsel's concession on a question of law was not binding on counsel's client. That is correct, but the concession appears to have been made with reference to section 99 of the Civil Procedure Code and was, therefore, a proper concession. In any event, this is not a fit case for the grant of special leave to examine legal objections which were and raised or dropped to the Courts below. The petition is without merit and is dismissed. Petition dismissed.