P L D 1960 (W (PLP)

"S. H. O Vehari to arrest Ghulam Qadir Khan". The second document is the warrant of arrest which is again in the handwriting of Taj Muhammad. It is a short document and it will be convenient to reproduce its translation verbatim :‑

"Crown v. Ghulam Qadir Khan accused Offence :‑Under section 182, P. P. C. Non‑bailable warrant of arrest. S. H. O. Police Station Vehari. In the Court of A. K`. Khalid, Magistrate Section 30, Camp Vehari. To Ghulam Qadir Khan son of Abdul Karim Khan Khakwani of Multan, now at Abdullahwah, Police Station Luddan, Tehsil Vehari. Arrest under section‑National Calamities Act (Pakistan) and section 182 P. P. C. and produce before us on 15th October 1955 at Vehari at 10 a.m." These are the only two documents recorded on the 14th October 1955. There was no order, apart from these documents, for the issue of a notice or warrant. On the back of the warrant, there is an endorsement to the effect that the plaintiff had been arrested in execution of the warrant. On the notice there is ho endorsement at all.

8. In the notice no date had been fixed for appearance. In the warrant the date for appearance had been fixed as the 15th October 1955. On that date the plaintiff appeared before the defendant and the defendant then served upon him a notice relating to an offence under section 182, P. P. C. only, to show cause why he should not be proceeded against under that section. The record shows that this notice was read over to the plaintiff and he was asked to make a statement in reply to it. Following is the statement which he is alleged to have been made :‑ "I had given this information under a misapprehension. I beg to be excused. I will not commit such a mistake again. Somebody had given me this information which I was unable to verify and being in a perturbed state I came straight here and gave the information. I had not deliberately given wrong information (ye ghalti danista na thi)." The plaintiff was then asked as to whether he had to add anything and he said : "No, I may be pardoned." On the back of this document appears the order of the defendant of the same date the translation‑of which is the following :‑

"Ghulam Qadir Khan confesses his guilt. He admits that he had given wrong information. Under the circumstances, a complaint under section 182, P. P. C. should be drafted and sent to the Resident Magistrate, Vehari. The accused will be bound by the security furnished. The Court concerned will pass orders summoning him for a proper date:"

9. I proceed now to appraise the evidence. Let me state before I begin that, while the plaintiff is a respectable zamindar of Multan, the defendant was, during the pendency of this suit in the Court of a Civil Judge at Multan, still a section 30 Magistrate in the Multan District and this has to be kept in mind while considering the value of evidence. The whole of the evidence in the present case, except a part of the statement of the plaintiff, was recorded by the Civil Judge at Multan and the witnesses of the plaintiff knew that they were deposing against a Magistrate who had got the plaintiff handcuffed and put in the lock‑up.

10. I am prepared to accept the version of the defendant as to the information which the complainant had given him at Vehari. According to the plaintiff, he had simply asked for help because his lands were in danger, while according to the defendant the plaintiff had told him that there were two parties both armed, one of whom was bent upon making a breach in Sauro Minor and the other was bent upon preventing the breach. The plaintiff did not explain what help the defendant was to give and it becomes clear on a perusal of the record that the help which the plaintiff wanted was in connection with a cut in Sauro Minor. In fact, Behram Khan (P. W. 7) has made a clear statement in this respect. According to Behram Khan the plaintiff had asked for the help of the defendant by means of a cut. Qazi Shah Muhammad (P. W. 9) too has stated that a day before this incident people of Kot Qazi were protecting the bund. The plaintiff has thought fit to suppress this part of the statement, probably in view of the complaint against him under section 182, P. P. C. The statement of the defendant is, in this respect, supported by the notice which was issued as well as by the statement of Haji Shah Muhammad. However, while I accept that the plaintiff had given information to the defendant as to the collection of parties at the spot, I am not accepting that the plaintiff had deliberately given any false information. He had no motive whatever for doing that he was taking the defendant to the spot where the defendant could very well verify the correctness of the plaintiff's allegation. He had followed the defendant to Karampur Rest House. He reached late but there is no reason for disbelieving his statement that he had been delayed because his car got stuck. Qazi Shah Muhammad, Lambardar of Kot Qazi, has admitted, that on the previous day people had gathered for the purpose of protection of the bund. He is the Lambardar of the village whose inhabitants were protecting the bund. It is also quite natural, if the main tenance of the bund would result in the land of the plaintiff being damaged, that the plaintiff and others whose lands were to be damaged should want to make a cut and it was not at all improper that they should approach the Emergency Officer for this purpose. The Emergency Officer could direct the bund to be cut if this were to result in diminishing the damage caused by the flood. The plaintiff had received information from his brother, at Multan. That information may well have related to the previous day and on the previous day people had collected. So while I accept that the plaintiff, probably in view of his prosecution under section 182, P. P. C., has suppressed a part of the statement, I see no reason on this record for holding that he had deliberately given wrong information to the defendant.

11. Although the defendant had received the information as to there being a serious danger of breach of the peace, when he went to the spot he did not find any persons collected there. The plaintiff did not reach the spot. The defendant, as was admitted before me, had to walk more than three miles and it was about noon. He felt annoyed, very much annoyed indeed, and what followed can be explained only on this basis. The plaintiff did not reach Karampur Rest House soon after the defendant and, as appears from the evidence, some search was made for him but he could not be found. In the written statement the defendant had taken up the position that the plaintiff "had disappeared in the meantime and, therefore, his warrants were issued", but the correct position appears to be that the plaintiff was not available to the defendant at all before the warrants were issued. When the defendant found that the plaintiff had given wrong information, had not reached the spot and had‑caused him to walk in the sun for more than three miles, he wanted to pull him up. He issued at first a notice under the National Calamities Act. He had no grounds for believing that the plaintiff had committed any offence under the National Calamities Act. In the notice no section of National Calamities Act was mentioned, and when I called upon learned counsel for the defendant to point out to me any section of the National Calamities Act by misinterpreting which the notice may have been issued to the plaintiff, he did not even make an attempt to refer to any such section. Not satisfied with the notice the defendant then wrote on the back of the notice in his own hands an order that the defendant should be arrested by the Station House Officer, Vehari, and produced before him the very next day.

12. The defendant now alleges that the warrant under section 182, P. P. C. and the National Calamities Act was written at the same time as the notice. There is no doubt at all that the two were not recorded at one and the same time. There are a number of reasons why I should reach this conclusion. If the notice was recorded at the ‑same time as the warrant, there is no reason why there should not be notice under section 182, P. P. C. also. The next .day, it is to be remembered, a notice had to be served on the plaintiff to show cause why he should not be proceeded against under section 182, P. P. C. Yet in this notice there is no mention of section 182, P. P. C. Then there is the order passed on the back of the notice directing the Station House Officer to arrest the plaintiff. This order would be without any meaning if a non‑bailable warrant had already been recorded. The case of the defendant is that the notice and the warrant were dictated at one and the same time to Taj Muhammad, Station House Officer and that he made the endorsement on the notice after the warrant had been recorded. There is no explanation what soever as to why, if a warrant had been written already, there should be need for an order of arrest and that order too is on the back of a notice to show cause. Also Taj Muhammad has admitted that the warrant was recorded after the return of the defendant to Karampur Rest House. With respect to this statement, it was objected by learned counsel for the defendant that there was no story as to the return of the defendant to Karampur Rest House. True, that story is not there but the plaintiff could not be knowing the return if the defendant had left Karampur Rest House in his absence and had returned, and in any case the statement. of Taj Muhammad cannot be said to be meaningless. It is obvious from his statement that the notice and the warrant could not have been recorded at one and the same time. The defendant it appears to me directed only the service of notice under the National Calamities Act He then gave a direction for the arrest of the plaintiff also under that. Act by an endorsement on the notice. Later he appears to have thought better of it and to have added section 182, P. P. C. At what stage this was done is not clear. It is not possible to say whether the warrant had or had not been recorded at the time when the plaintiff was arrested. Behram Khan P. W. had stated that the Station House Officer had not shown him the warrant of arrest. I am not inclined to disbelieve Behram Khan, but still my mind is not quite satisfied as to when the warrant came into existence. In this connection, reference has been made by learned counsel for the defendant to issue No. 1 which refers to a non‑bailable warrant. I do not attach much importance to the fact that in the issue the words "non‑bailable warrant" were used. The plaintiff did not know whether there was a warrant or an order. He only knew that he had been arrested and that the arrest was in execution of an order which did not allow any bail.

13. I am inclined to accept the statement of the plaintiff hat the defendant had left Karampur Rest House after seeing him. There is the statement on this point of Behram Khan, who appears to me to be a reliable witness even though he is a cousin of the plaintiff, and there is also the statement of Qazi Shah Muhammad. Even according to Taj Muhammad, Station House Officer, the defendant left only 5/6 minutes before the arrival of the plaintiff. This is pot very far from the truth. I believed also that the defendant left Karampur Rest House with the Khichis. He has not dared to contradict this. He simply says that he did not know whether he had gone with Shah Muhammad Khichi, a statement which does not impress me.

14. These are my conclusions as to what happened on the first day. On the 15th October, according to the plaintiff, the defendant told him that he had been sufficiently punished and was acquitted. The case of the defendant was that he first served a notice on the defendant to show cause why he should not be proceeded against under section 182, P. P. C. and when the notice was read over to the plaintiff, he recorded his statement and then he passed the order. This statement was corroborated by Iftikhar Rasul, Camp Clerk of the defendant, according to whom, after recording the statement of the plaintiff, the defendant ordered the prosecution of the plaintiff.

15. The record leads me to no conclusion other than this that the plaintiff's version as to his having been acquitted is cornet. The case put forward on behalf of the defendant in his examination‑in‑chief and in the statement of Iftikhar Rasul was that the order directing the lodging of the complaint against the plaintiff was passed at the time when the plaintiff's statement was recorded. A reading of the plaintiff s examination‑in‑chief and the statement of Iftikhar Rasul would show that this is the only case which the plaintiff had to put forward. However, during the cross‑examination the defendant was confronted with the earlier statement which he had made in the criminal case against the plaintiff and the plaintiff was forced to change his position. He admitted that he wanted to drop the proceedings against the plaintiff, but that he was directed by the Deputy Commissioner, Multan, to proceed against the plaintiff and that it was in consequence of this direction of the Deputy Commissioner that he had passed orders for the filing of a complaint against the plaintiff. Now, this direction from the Deputy Commissioner he had, as admitted before me by the defendant himself, been received by telephone only on the night between the 15th and 16th October. It is obvious, therefore, that the order directing the complaint to be filed against the plaintiff could only have been passed some time during the night between the 15th and 16th October. If till that night he had not passed any orders in the case, then what was the order which he announced to the plaintiff 7 Obviously it could not be an order informing him that a complaint had been lodged against him. It could, therefore, only have been an order telling him that he had been acquitted and was not to be proceeded against. He had been allowed to go and had not been given any date for appearance. When the defendant was obliged under cross‑examination to admit that the complaint had been filed after receipt of a telephonic message from the Deputy Commissioner, he took up the position that he had not announced any order to the plaintiff and had told him that orders would be announced later. But his witness Iftikhar Rasul, who had been examined before the defendant had not made any such statement and the defendant himself had not said so in his examination‑in‑chief. The record of the proceedings too is against the defendant. It does not say that the plaintiff was to be informed later. Also if the statement of the defendant be accepted it would mean that after receipt of the telephonic message‑ Iftikhar Rasul w is sent for at dead of night and an order bearing date 12th October 1955 was then recorded. Nobody says so and if somebody said so it would not be acceptable in the face of all the circumstances. The story that orders were to be pronounced later is not only opposed to the record but is falsified by the fact that admittedly no orders were in fact ever communicated after the 15th October to the plaintiff.

16. There is further corroboration of the view that I take, in the order that was passed by the defendant. I have already reproduced a translation of that order. That order says : "The accused confesses his guilt". As a matter of fact, the accused had not confessed his guilt at all. In the witness‑box, the defendant has admitted that the statement which the plaintiff made before him was exculpatory. The plaintiff had stated that he had not intentionally given any false information. Yet when directing a complaint to be filed against the plaintiff, the defendant said that he had confessed his guilt. It appears clear that the defendant found no way out of the situation except to write an order in this manner. He had already told the plaintiff that he was not to be proceeded against. Afterwards he received a direction from the Deputy Commissioner that he should file a complaint. It would not have been proper to issue a notice to the plaintiff to appear again. The plaintiff would come and assert that he had been acquitted. Also the plaintiff was entitled to show that there was no pr‑ma facie case against him and was entitled to lead evidence. So, the defendant got out of the difficulty by passing an order to the effect that the plaintiff having "admitted his guilt" was to be proceeded against. I may also observe here that this was a most improper land unjust proceeding quite apart from its bearing on the present case. If the plaintiff had been directed to show cause why a complaint should not be flied against him and the plaintiff was pleading that he had made the report under misapprehension, the plaintiff was entitled to lead evidence to that effect and a complaint could have peen lodged only after the defendant came to a prima facie conclusion that the information given was deliberately false. Also the defendant had filed a complaint under the directions of the Deputy Commis sioner. On this sole ground the complaint against the plaintiff could be quashed because the officer who makes a complaint has to make up his own mind. He cannot file a complaint under the orders of someone else. In that case it is that other person who is filing the complaint and he had no authority to do so.

17. I have just assumed without reaching any conclusion myself that the reason why the defendant changed his mind was a direction from the Deputy Commissioner. This is the defend ant's case. There may in fact be some other reason for the defendant changing his mind.

18. I have not accepted that the defendant bore the plaintiff any malice before the incident. The evidence as to the previous incident is insufficient for coming to any such conclusion. I accept that the defendant was friendly with at least one. Khichi that is Shah Muhammad whose presence at Karampur Rest House is established. There is no rebuttal of the statement of the plaintiff and some of his witnesses that the car in which the defendant left Karampur Rest House belonged to the Khichis. I am also inclined to accept that the defendant had gone to take his dinner with the Khichis. The defendant said he had dined with his brother Magistrate Mr. Waheed, but he did not produce Mr. Waheed though he was at the time the evidence of the defendant was being recorded, in Multan. However, I do not accept that on account of friendly connection with Khichis the defendant wanted to harm the plaintiff. He was personally annoyed with the plaintiff.

19. I will now state my conclusions in brief before I proceed to examine the questions of law involved. The defendant received information from the plaintiff that there were two parties, one wanting to make a cut and the other bent upon preventing the cut in Sauro Minor, between whom there was grave apprehension of breach of peace. The defendant went to the spot and did not find any persons collected there. The plaintiff did not reach the spot at all. He could not reach because of some trouble with his car, but the defendant at that time did not know this fact. The defendant had walked a distance of more than three miles in the sun. He was deeply annoyed. He first thought of the National Calamities Act, wrote out a notice under it and then also passed an order on the back of it directing the arrest of the plaintiff. Some time afterwards, it is not clear when, he came to the conclu sion that the National Calamities Act would not be applicable and that he should think of some other provision. The non -bailable warrant was then prepared. Although section 182, P. P. C. was bailable and even a summons case, he did not make any provision for bail because he wanted the plaintiff to be confined. He left Karampur Rest‑House although he had seen the plaintiff arriving because otherwise he would have to grant bail, but from the very beginning he had not the intention of taking any true legal proceedings against the plaintiff. He just wanted him to be handcuffed, confined for some time and then let off. That is why he issued warrants only for the next day and that is why when he came back from Mailsi on the 14th at about twelve in the night, he did grant bail. At that time, he said the plaintiff had been sufficiently punished. The next day when the plaintiff appeared before him he served upon him a notice to show cause why he should not be proceeded against under section 182, P P. C. The plaintiff apologized and the defendant told him that he had been sufficiently dealt with and no further proceedings were to be taken against him. Later, however, the defendant changed his mind and without informing the plaintiff filed a complaint against him under section 182, P. P. C. It may be mentioned here that the plaintiff was tried by a 1st Class Magistrate of an offence under section 182, P. P. C. and on conviction was awarded the maximum non‑appealable sentence, that is, a fine of Rs. 50.

20. While stating these conclusions, I have assumed the incorrectness of the allegation made on behalf of the plaintiff that he had only signed blank papers on the 15th October. I have not reached any positive conclusion that the plaintiff had not signed blank papers, but it appears to me more probable that a statement was recorded and in any case on this point the plaintiff should fail for want of any proof.

21. Now I proceed to consider th6 law applicable and to see what is the result of the above findings. The suit is one for false imprisonment. In a suit for false imprisonment all that the plaintiff need prove is that he was imprisoned and it is for the defendant to prove justification. In support of this proposition, I would only reproduce the relevant portion from Halsbury's Laws of England (Para. 67 of Halsbury's Laws of England, Volume 33, Second Edition) :‑

"An action of false imprisonment lies at the suit of a person unlawfully imprisoned against the person who causes the imprisonment. Any total restraint of the liberty of the person, for however short a time, by the use of threat or force or by confinement, is an imprisonment. To compel a person to remain in a given place or to go in a given direction against his will is an imprisonment ; but merely to obstruct a person attempting to pass in a particular direction or to prevent him from moving in any direction but one is not imprisonment. The gist of the action of false imprisonment is the mere imprisonment ; the plaintiff need not prove that the imprison ment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant ; the onus then lies on the defendant of proving a justification." In a case for false imprisonment the plaintiff will succeed if the defendant could not show justification for the imprisonment. If the defendant had jurisdiction to order arrest and detention, the suit will be dismissed. If on the other hand the defendant had no jurisdiction to order arrest and detention, ordinarily the suit would succeed, but in a case where the defendant is a Magistrate, the Judicial Officers' Protection Act, 1850, would come to his assistance and even in the absence of jurisdiction the plaintiff would not succeed if section 1 of the said Act be applicable. Section 1 of the Judicial Officers' Protection Act, 1850, runs: "No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction ; provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of ; and no officer of any Court or other person bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same." If the judicial officer had jurisdiction to make the order of arrest or detention, there is no cause of action for the suit. If, on the other hand, such jurisdiction did not exist the question as to whether the plaintiff is entitled to damages will be decided in accordance with the proviso to the section, i.e., if the judicial officer believed in good faith that he had jurisdiction to do or order the act complained of he will not be liable in damages. Belief in good faith referred to in the section has been held in Collector of Sea Customs v. P. Chithambaram (I L R (1) Mad. 89) to be a belief based on reasonable grounds. To reproduce the words of Morgan C. J., "a belief based on no probable or plausible grounds, and arrived at inconsiderately and without due enquiry, cannot be considered a belief in good faith within the meaning of the Act, which has been construed in several cases to require reasonable care and attention in the performance of his official duty on the part of him who does or orders the act complained of." No authority to the contrary has been cited and I would respectfully agree with the proposition stated above. The defendant, therefore has to show either that he had jurisdiction or that he had reasonable grounds for believing that he had jurisdiction. The onus as to there being grounds for reasonable belief would be on him, on the wording of section 1 in which this protection appears in the form of a proviso, as also on account of section 106 of the Evidence Act which provides that the onus of proving a fact within the special knowledge of a person is on him. In Collector of Sea Customs v. P. Chithambaram as well as in Emperor v. Muktar (A I R 1944 Cal. 4), which is a case relied upon by the defendant, the onus of proving reasonable ground's for belief had been cast on the defendant.

22. Let me now consider whether this imprisonment was either within the jurisdiction or within the proviso to section 1 of the Judicial Officers' Protection Act. There are before me two orders for the arrest and detention of the plaintiff. The first is the order on the back of the notice. The second is the non-bailable warrant. So far as the first is concerned, the defendant has no defence to make at all. As I have already stated, not only does the defendant accept that no offence had been committed under the National Calamities Act, but no section of that Act has been pointed out to me on a misinterpretation of which the warrant for arrest could have been issued. The case for the defendant is that he had not read the National Calamities Act when he passed this order. It is not stated why, without reading the Act, he had issued an order of arrest which allowed no bail. The first order of arrest, therefore, is neither with jurisdiction nor within section 1 of the Judicial Officers' Protection Act. If the arrest was made on the basis of this order, the defendant would be liable for damages. It is contended, however, that I should regard the arrest as having been made under the non bailable warrant issued later and not under this order. Now, this order had been issued earlier. I may repeat here that as a matter of fact I am not quite clear as to whether the non‑bailable warrant had been issued at all before the plaintiff was arrested. On behalf of the plaintiff it has been pointed out that there is no order at all on any file that a warrant be issued and that warrants are issued only after the Court passes such an order. In fact, the writing out of a warrant is the duty of some ministerial officer who gets the warrants signed by the presiding officer after he writes it out. But I am going to assume, for the purpose of deciding the questions that are before me, that this warrant did exist before the arrest, as it is not positively proved that it did not. So far as the warrant is concerned, it will be observed that it is a joint warrant, i.e., it is a warrant in respect of two offences ; the first is an offence under the National Calamities Act and the second is an offence under section 182, P. P. C. In so far as the warrant relates to an offence under the National Calamities Act, the position is the same as it was with respect to the first order of arrest. It is clearly without jurisdiction and it is not within the protection of section 1 of the Judicial Officers' Protection Act. No section of the Nation Calamities Act is referred to in the warrant and as already observed the defendant does not state why he issued an order of arrest without reading the Act or what grounds he had for believing that he had jurisdiction to order arrest. If in the case of a warrant relating to two offences, the plaintiff can succeed if he shows that so far as at least one of the sections is concerned, he has a right of action, then the plaintiff would obviously succeed in the present case. But I would go a step further in favour of the defendant and assuming that if arrest under one of the two sections could be justified, the defendant will still be exonerated, I will consider whether he had any jurisdiction to issue a warrant under section 182, P. P. C. On behalf of the defendant it is conceded that he could not and was not taking cognizance of the offence under section

182. The contention put forward on his behalf is that he had authority under section 64 of the Code of Criminal Procedure to arrest the plaintiff. It will be proper to reproduce section 64 below:‑ "When any offence is committed in the presence of a Magistrate within the local limits of his jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody." Under this section, if an offence is committed in the presence of a Magistrate, he can himself arrest or order any person to arrest the culprit. It is argued on behalf of the defendant that the giving of false information to the defendant himself was an offence which had been committed in the presence of the defendant. One point may be clarified here. The false informa tion, according to the complaint under section 182 filed by the defendant, had been given to him not as a Magistrate but as an Emergency Officer acting under the National Calamities Act. So the contention amounts to this that the defendant in his capacity as Magistrate had witnessed the commission of an offence under section 182 committed in relation to him as Emergency Officer and, therefore, he could at any time order that the plaintiff be arrested.

23. There are a good many difficulties in the way of the acceptance of this argument. The first is that section 64 will apply only where the Magistrate sees something which prima facie at the time appears to him to be an offence. It does not apply to a case where at the time he did not know at all that an offence was being committed but subsequently on evidence which he examined he came to the conclusion that what had been done in his presence was an offence. In the present case, the defendant believed the plaintiff at the time when he received information from him. It was only three or four hours later that he came to the conclusion after inspection of the spot and after question ing some persons that the information given to him was incorrect. Could he then issue a warrant for the arrest of the plaintiff ? It may be observed here that according to the contention of learned counsel for the defendant for the applicability of section 64 it is not material that the false information should be given to the Magistrate himself. All that is needed that the Magistrate should have witnessed the giving of false information. Learned counsel for the defendant has to concede that if I accept his contention, then, if a Magistrate happens to be present at any time when an information is given to a public servant or a statement is made in Court, then that Magistrate, even if ten years later he himself comes to the conclusion that that statement made to a public servant or to a Court (for the matter of that, it may be a High Court) was false, can issue a warrant for the arrest of that person. According to learned counsel the fact that cognizance of the offence under section '182 or 193 can be taken only on a complaint by the officer or Court does not stand in the way of the applicability of section 64 because it only speaks of the commission of an offence. If as a chance visitor in the High Court he heard a statement being made and years later came to the conclusion that the, statement was false, he could, though no complaint had been filed by the High Court, issue warrants for his arrest. It is impossible to accept such a pro position. I would not accept that section 64, Cr. P. C., was intended to apply to a case where a Magistrate seeing an act being done does not know that some offence is being committed. At the same time, the section only applies to a case where the accused himself is present. Then the Magistrate can himself arrest or order his arrest. The section does not justify the issue of a warrant against an absent accused on the basis of evidence examined by the Magistrate. If the Magistrate has to issue a warrant only after examining witnesses and coming to a conclusion he can do so not under section 64 but if he takes cognizance of the offence.

24. There is another hurdle in the way of the defendant. The warrant relates to two offences. It is admitted that so far as an offence under the National Calamities Act was concerned, the warrant was being issued on the basis that the defendant had taken cognizance of the offence, but with respect to the other section it is contended that the warrant was not issued because the Magistrate was taking cognizance of the offence but under section 64, Cr. P. C. It is admitted that he could not take cognizance of an offence under section

182. I am not prepared to accept that he was taking cognizance of one of the two offences and in respect of the other was acting under section

64. The fact that section 182 is mentioned along with an offence of which cognizance was being taken will help in showing that section 64 is only an after‑thought. The section was not mentioned in the warrant. If really the defendant had section 64 in mind and was acting under it he would mention it in respect of section 182 or rather the warrant for section 182 would be separate.

25. Section 64 is inapplicable and there are no grounds for holding that the defendant in good faith believed himself to be authorised by section

64. It has not even been urged that at that time the defendant knew of the contents of section 64 and he misinterpreted the section. The case of reasonable belief has not been argued before me in respect of section 64 the only contention before me being that section 64 did apply. But I have myself considered the question and see no ground at all fox holding that the defendant was under any misapprehension. He had not read the National Calamities Act and still had passed an order of arrest and issued non‑bailable warrants in respect of an un‑named offence under the Act. The intention of the defendant was to get the plaintiff handcuffed and confined by the use of some provision and after some time to release him. He never intended to take any proceedings against the plaintiff. Afterwards either under the direction of the Deputy Commissioner or for some other reason which I will not guess, he changed his mind.

26. If I were to find that there was possibility of the applica bility of section 64, I would still hold that the act of the defendant in issuing a non‑bailable warrant under section 182, P. P. C., was mala fide. An offence under section 182, P. P. C., is a summons case. Ordinarily, a summons would issue. Even if a warrant is to be issued, it should be a bailable warrant because the offence is a bailable one. What was the reason then for issuing a non‑bailable warrant ? Here was an offence for which in the first place, there had to be complaint before it could be taken cognizance of, secondly, a summons was to issue, thirdly, it was a bailable offence; and yet the Magistrate issued a non- bailable warrant. In fact he was taking proceedings under section 182, P. P. C., only in his capacity as Emergency Officer as is clear from the complaint that he filed. But I will overlook this objection, and consider it an ordinary case where the defendant wanted to proceed as Magistrate. If he had the jurisdic tion to issue a bailable or a non‑ bailable warrant, I would have no hesitation in holding that he issued a non‑bailable warrant on account of annoyance and, therefore, the act was without jurisdic tion. This is not an exercise of a discretion which is within the law. If there are two alternative orders which can be made in the discretion of a judicial officer, he cannot make one of those orders on the ground of malice. This would be abuse of jurisdiction and all that is abuse is excess.

27. I find the act of the defendant to be high‑handed, malicious and without jurisdiction.‑ The contention embodied in issue No. 6 was not argued before me. The only point that remains to be decided is the amount of damages to be awarded. It is true that the defendant had received information which he found to be incorrect and he had to walk more than three miles in the sun (it was October and it could not be very hot) and he was annoyed. But I do not think the defendant is entitled to very great consideration on this account. Had he applied his mind he would have realised that the plaintiff did not stand to gain anything by making a false report. The plaintiff had apparently acted on the basis of information: On the previous day as stated by Qazi Shah Muhammad there were persons who were protecting the bund and the information the plaintiff received at Multan may well have related to the previous day. The plaintiff is (or rather was before the land reforms) an owner of 47 squares of land. He is a District Darbari and was a Zaildar when zaildaris existed. The defendant admits that the plaintiff comes of one of the important families of Multan District though he offered an insult to the plaintiff by saying that the circumcision of a Khakwani, according to Multan Gazetteer, costs a pitcher of sharbat only and his marriage costs only the fee of the Mulla. For the assessment of damages there is no yard‑strick and the suit has been brought more for vindication of the plaintiff's honour than for money. I think it will be sufficient if I award Rs. 500 as damages.

28. The suit is decreed for Rs. 500 with proportionate costs. A. H. Order accordingly.