2005 PLP 1950 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 12-11-2003 passed by a Division Bench of High Court of Sindh, at Karachi, in H.C.A. No.177 of 2002 arising out of a suit for damages:

2. The essential facts in the small compass giving rise to this petition are that petitioner having filed a suit for recovery of damages to the tune of Rs.1,22,50,000 against the respondents pleaded that he was running business of sale of wrist watches and allied items in Doha, Qatar. The petitioner on return from a business tour of far-east while traveling back for Qatar by a PIA Flight on 21/22-8-1986, was in transit at Karachi Airport, when the officials of Customs Department having made search of his baggage, seized the wrist watches and bands from his possession being taken by him to Qatar for sale, on the pretext that he intended to smuggle these items into Pakistan. The petitioner was also dragged in a criminal case under section 2(s) read with section 156(1)(8) of the Customs Act, 1969, and was tried by the Special Judge (Customs and Taxation) Karachi but was ultimately acquitted. In consequence to the adjudication proceedings, the seized goods were confiscated and subsequently, the Member (Judicial) C.E.R. having set aside the confiscation order directed for release of the goods but the Department without waiting for the decision of the matter by Member, Judicial auctioned the confiscated goods at a nominal price. The petitioner having pleaded in the suit that not only the action of seizing of goods was mala fide but the confiscation order was also not passed in good faith and he was maliciously prosecuted claimed the damages in the following manner:-- (1) Actual price of goods. Rs.3,00,000 (2) Profit of sale of goods. Rs.75,00,000 (3) Expenses on travel from Dir to Karachi Rs.2,00,000 during trial (4) Loss of visa Rs.10,00,000 (5) Loss of business in Qatar Rs.10,00,000 (6) Loss of reputation and goodwill. Rs.20,00,000 (7) Mental torture and humiliation due to Rs.3,00,000 malicious prosecution. Total Rs.12,250,000

3. The suit was contested by the respondents and in the light of pleadings of the parties, learned trial Judge in the High Court of Sindh, Karachi, on the original side, having framed number of issues and recording evidence of parties, passed a decree for damages vide judgment dated 12-3-2002 as under:-- "Under the above circumstances I would award damages to the plaintiff in the sum of Rs.3,00,000 which are computed on the basis of his expenses for travelling from DIR to Karachi and Islamabad. His being locked up in jail and the balance amount that would be payable to him for the value of the consignment after deducting the amount already received. For the foregoing reasons, the suit is disposed of.

4. The petitioner being dissatisfied with the quantum of damages awarded by the learned trial Judge filed H.C.A. in the High Court of Sindh at Karachi which was disposed of with the following observations:-- "From examination of the above quoted operative part of the judgment, it appears that the appellant has been awarded damages in the sum of Rs.3,00,

000. It also appears that the appellant has also been awarded payment of balance amount that would be payable to him for the value of consignment after deducting the amount already received. The evidence shows that the Federal Ombudsman has granted to the appellant an amount of Rs.1,19,

000. Appellant appears to have accepted the decision of Federal Ombudsman and has received Rs.1,09,000 from the respondents leaving balance of Rs.10,000 to be paid to the appellant. In terms of the judgment and decree the appellant is entitled to be paid Rs.10,000 as balance of the value of consignment. The judgment and decree does not specify as to who has to pay the decretal amount. We find that the respondents are jointly and severely liable to make payment of the decretal amount to the appellants. With the above clarification and modification, the judgment and decree passed in the suit is maintained and the appeal is disposed of accordingly."

5. The petitioner appearing in person has argued that the learned trial Judge and also the appellate Bench of the High Court having come to the conclusion that action of the respondents was illegal and in consequence to their wrongful act he having suffered loss, was entitled to the damages but without considering the question of damages in proper manner in accordance with law, granted a decree only to the extent of actual price of the goods and the meagre amount of travelling expenses. The petitioner has forcefully argued that the criminal prosecution as well as adjudication proceedings were not initiated in good faith as ultimately, the two forums having exonerated him from the allegation, held him not guilty of smuggling. He added that despite the fact that he was acquitted in the criminal case by the learned Special Judge (Customs and Taxation), Karachi and confiscation order was also set aside by the Member Customs (Judicial) with direction to release goods the officials of Customs Department, dishonestly without waiting for conclusion of the proceedings before the above forums, auctioned the confiscated goods for a nominal price and thereby caused heavy loss of the expected profit to be earned by him on the sale of watches. The sum and substance of the case of petitioner was that he being resident of Swat, faced criminal trial and adjudication proceeding at Karachi for a continuous period of about two years and apart from having borne heavy expenses on travelling from Dir to Karachi on each date of hearing also suffered loss of profit, loss of reputation, goodwill, business in Doha, Qatar and mental torture.

6. Raja Muhammad Irshad, learned D.A.G. assisted by Mr. Abdul Rashid Malik, Advocate Supreme Court, appearing on behalf of the respondents, on the other hand made an attempt to argue that the petitioner was not a transit passenger at Karachi and he having been found in possession of restricted goods was proceeded against by the Customs officials in good faith and thus, was not entitled to any damages at all what to talk of the amount being claimed by him in the suit. They however, conceded that petitioner was acquitted from the criminal case and the order of confiscation of goods was also declared illegal by the Member (Judicial) in revisional jurisdiction and that the verdict given by the Special Judge and Member Judicial was not challenged before the next forum. The learned counsel, without justifying the sale of the goods through auction pending final disposal of the matter by the CBR and the criminal case by the Special Judge, submitted that the decree passed against the respondents, has already been satisfied.

7. We have heard the petitioner in person and learned D.A.-G. assisted by Mr. Rashid Malik, Advocate Supreme Court and also perused the record with their assistance. The grievance of the petitioner regarding the reasonableness of the quantum of damages is a mixed question of law and facts but the real question regarding consideration in the light of the admitted fact of the exoneration of the petitioner from the criminal charge and also declaring the order of confiscation of goods, illegal by the Member (Judicial), would be as to whether the two Courts have properly exercised the jurisdiction in determining the question of damages. The learned Single Judge in the High Court in the original jurisdiction, having concluded that the petitioner due to the wrongful act of respondents, having suffered loss, was entitled to the damages but except a decree in respect of the actual price of goods and traveling expenses borne by him to attend the criminal trial and adjudication proceedings at Karachi from Dir (Swat), not awarded damages for any other claim and learned Division Bench of the High Court also in appeal not attended this essential question. The perusal of record would show that the value of goods at the time of seizure was fixed as Rs.2,99,400 whereas the actual price claimed by the petitioner was Rupees 3,00,000 out of which he was paid only an amount of Rs.1,09,000 under the . direction of Ombudsman and the decree to the extent of Rs.10,00,000 regarding the remaining sale price of the goods and the amount of compensation of Rs.3,00,000 awarded to the petitioner as traveling expenses, was still not satisfied. The public functionaries must act and discharge their duty quite fairly and in accordance with law and if a wilful wrong is done to a person by a public functionary and in -consequence to such wrong, he has suffered mental torture and agony or physical injury or financial loss, he would be entitled to be reasonably compensated by way of damages in accordance with law and the Court must determine the proper damages keeping in view the nature of wrong done and loss caused.

8. The Court of first instance as well as the Appellate Court having concurrently drawn the conclusion that in consequence to the unlawful act of the respondents, wrong was done to the petitioner, as a result of which he was compelled to face the prosecution and suffered loss, was entitled to the damages but omitted to assess the claim of damages for loss of profit and mental torture for facing the criminal prosecution before the Special Judge (Customs) and adjudication proceedings before the departmental Authorities at Karachi. There is no substance in the argument of learned D.A.-G. that in absence of evidence of actual loss, compensation of damages in respect of loss of profit and mental torture could not be separately determined and consequently, estimated damages on traveling in addition to the actual price of watches, was awarded. The petitioner in addition to the statement made on oath also placed reliance on documentary evidence in support of his claim and the respondents, except the general denial, having not bring any evidence on record in rebuttal to justify the criminal prosecution and departmental adjudication against the petitioner in good faith, have failed to defend their action in law. The petitioner was admittedly exonerated from the charge of smuggling by the judicial and quasi-judicial forum and the respondents have neither challenged the verdict given by the criminal Court nor that of the Member (Judicial) on the adjudication side which attained the finality and so much so, the judgment and decree passed by the learned trial Court and the High Court in the suit for damages was not assailed. The respondents, ,having charged the petitioner for smuggling of wrist watches and bands of watches into Pakistan in commercial quantity for sale, have impliedly conceded it a profitable business and loss of profit. The illegal and wrongful prosecution in absence of specific proof of good faith, would definitely fall within the purview of malicious prosecution and mental torture was the natural consequence, therefore, the petitioner would also be entitled to reasonable compensation for loss of profit and mental torture. However, the petitioner has not been able to bring on record any evidence regarding the nature of his business in Doha, Qatar and the loss of reputation and goodwill, therefore, he would not be entitled to claim any damages in this behalf.

9. The respondents having not filed an appeal against the judgment of the trial Court in the High Court, were estopped to challenge the c correctness of the finding regarding the wrongful prosecution of the petitioner and perusal of record would suggest that the two Courts have not considered the question relating to the damages in respect of loss of profit on the sale of watches and the mental torture caused to the petitioner and the omission to assess and compute reasonable damages for loss of profit and mental torture would amount failure of exercise of the jurisdiction.

10. In the light of above discussion and the circumstances of the case, we deem it proper to enhance the amount of damages from Rs.3,00,000 to Rs.10,00,000 as compensation for travelling expenses, loss of profit and mental torture which shall be paid to the petitioner in addition to Rs.1,00,000 the sale price of watches payable to him in terms of the judgment of the trial Court. There is nothing on record to suggest that respondents Nos.1 and 2 having personal interest, acted for some extraneous consideration in the transaction and it is also not clear from the judgment of the trial Court or the Appellate Court that their action was motivated for any financial consideration and the trial Court also has not held them liable to pay damages in their personal capacity therefore, the judgment shall be implemented by the respondents Nos.3 and 4 for the purpose of payment of the amount of compensation to the petitioner for the satisfaction of the decree. This appeal with the above modification in the decree passed by the High Court, is partly allowed. There will be no order as to costs. M.H./A-174/S Order accordingly.