2004 C L C 1682

[Peshawar]

Before Talaat Qayum Qureshi and Qazi Ehsanullah Qureshi, JJ

GOVERNMENT OF N.-W.F.P. through Collector, Mardan and others---Appellants

Versus
SAIDUR REHMAN and another---Respondents

R.F.A. No.47 of 2001, decided on 4th May, 2004.

(a) Fatal Accident Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for damages---Determination of amount of
compensation---Defendants who were police officials opened fire indiscriminately on a
motor car for stopping the same which had not cared for the signal of the police
officials---Deceased at relevant time was sitting in Bus and he was not aware of
indiscriminate firing made by police officials and could not adopt any precautionary
measures and was hit with negligent firing of police officials and died later on---Police
officials being negligent, plaintiffs being legal heirs of deceased were entitled to
damages---Police officials present on the spot made indiscriminate firing due to which
not only deceased sustained fatal injuries, but other passengers who were traveling in
motor car, also received injuries---Deceased having died due to indiscriminate firing of
the, police officials whose negligence had fully been proved, suit was rightly decreed by
Trial Court and Trial Court had rightly determined amount of compensation taking into
consideration age and earning capacity of deceased.
1997 CLC 132; 1997 MLD 309; 1997 MLD 2842; 1997 CLC 1517; 1998 CLC 570;
Federation of Pakistan through Secretary Railways and another v. Hafiza Malika Khatoon
Begum and others 1996 SCMR 406; Waseema and another v. Karachi Transport
Corporation through Managing Director, Director or Secretary and another 1998 CLC
573; Roshan Jan and 3 others v. Pakistan and 2 others 1997 CLC 1417 and Shah Bashir
Alam and 2 others v. Messrs Arokey Chemical Industries Ltd. 1997 MLD 2308 ref.
(b) Fatal Accidents Act (XIII of 1855)---
----S. 1---Negligence ---Meaning and proof of---Negligence was omission to do
something which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do--"Negligence" was not a question of evidence, but same
was an inference to be drawn froth the proved facts---Negligence was not an absolute
term, but was relative one and was rather comparative term---Burden to prove
negligence, was on plaintiff and not on defendant to disprove it, but an exception was to
that rule namely whether circumstances surrounding the thing which caused the damage
or at the material time were exclusively under the control of defendant ,or his servant and
happening of such event would not have occurred in ordinary course of thing without
negligence on the defendant's part which was known as "res ipsa loquitur"---According to
said doctrine safety was best secured when it was made the responsibility of person who
must not only take precautions to avoid accident, but who has alone to decide what those
precautions should be.
Nizar Ahmad D.A.-G. for Appellants.
H. Muhammad Alam and Ghulam Ali for Respondents.
JUDGMENT
TALAAT QAYUM QURESHI, J.--- This regular first appeal is directed against the
judgment and decree, dated 31-1-2001 passed by the learned Civil Judge-II, Mardan
whereby he granted a decree for the recovery of Rs.21,20,000 as prayed for with costs of
Rs.15,000 in favour of Saidur Rehman and wife plaintiffs/respondents against the
defendants/appellants.
2. The brief facts of the case are that Saidur Rehman and his wife plaintiffs/respondents
instituted suit against the defendants/appellants for the recovery of 88.21,20,000 as
damages. It is averred in the plaint that Muhammad Qayyum deceased was the eldest son
of the plaintiff/ respondent was a B.A. student; that on 17-10-1995 the deceased was
traveling in a Bus bearing No.3385-PRC: that defendants Nos.6 to 8 on the order of
defendants Nos. 1 to 5 and 9 opened indiscriminate firing on Motor Car No.3796/LOZ
and the bus in which his son was traveling, as a result of which the son of the plaintiffs
was hit and died; that due to the negligence and carelessness of the defendants the son of
the plaintiffs lose his life which was expected up to sixty years and thus Rs.19,20,000
was to be calculated on his income for the remaining forty years; that apart amount the
plaintiffs claimed Rs.1,00,000 for physical and mental shock and Rs.1,00,000 incurred on
treatment and funeral of the deceased The defendants were asked time and again to pay
the above mentioned amount but in vain. Hence the instant suit. The suit contested by the
defendants by filing their written statement The pleadings of the parties gave rise to as
many as seven issues including the relief. Evidence pro and contra was recorded and after
hearing the learned counsel for the parties, the learned trial Judge decreed the suit in
favour of the plaintiffs/respondents against the appellants/defendants vide judgment and
decree, dated 31-1-2001.
3. Mr. Nizar Ahmad, the learned D.A.-G. representing the appellants argued that the
impugned judgment and decree passed by the learned trial Court is based on misreading
and non-reading of evidence. The medical report Exh. P.W.1/1 reveals that the deceased
had sustained only single fire-arm injury, whereas the learned trial Court in the impugned
judgment has stated that the deceased had sustained five firearm injuries on his person.
This shows that the evidence on record was misread.
4. It was also argued that the appellants were performing their duties and they did not act
negligently rather they have performed their duties diligently with due care.
5. It was also argued that the learned trial Court while assessing the damages and
determining the compensation has failed to apply the law on the subject. The
compensation, if any, to financial benefits suffer by the beneficiary and the financial
damage was worked out with reference to life expectancy to the beneficiaries and not the
deceased.
6. On the other hand Haji Muhammad Alam Khan, Advocate the learned counsel
representing the respondents argued that the learned trial Court had properly appreciated
the evidence available on record.
7. It was also argued that the son of the respondents/plaintiffs, who was a student of B.A.
was traveling in a bus and if the appellants defendants .wanted to intercept any motor car,
they could adopt reasonable measures, but instead of adopting measures they resorted to
indiscriminate firing in a thickly populated public place and in the rush hours of the day.
This indicates that the appellants/plaintiffs did not act diligently.
8. It was also argued that no case was registered against the persons who were traveling
in the car, which the police officials wanted to intercept and perusal of the F.I.R. shows
that the same was registered after the occurrence has taken place. This also shows the
mala fide of the appellants.
9. It was also argued that since the deceased was a young boy, therefore, his life
expectancy was up to 60 years. The damages have been calculated at the minimum
possible rates and the learned trial Court has rightly appreciated while granting the same.
Reliance in this regard was placed on 1997 CLC 132; 1997 MLD 309; 1997 MLD 2842;
1997 CLC 1517: 1998 CLC 570 and 1996 SCMR 406.
10. We have heard the learned counsel for the parties at length and perused the record.
11. The questions that require determination in this case are:-
(i) Whether the appellants/defendants were negligent?
(ii) Whether Muhammad Qayyum died due to firing of appellant/defendant No.37?
(iii) Whether the respondents/plaintiffs were entitled to damages, if so to what extent?
12. Answer to the first question is in affirmative. The admitted position in this case is that
Muhammad Qayyum (deceased was traveling in Bus No.3385-PRC to Mardan, when the
bus reached Takht Bhai Railway Crossing, police started indiscriminate firing due to
which Muhammad Qayyum received bullet injury and consequently died. This fact was
not only stated by Said Gul P.W.4 but by Fazal Rehman. P.W.5 and Jamrali P.W.6, who
were also travelling in the same bus and had seen the occurrence. Sher Malook A.S.-I.
P.S. Takht Bhai was also examined as D.W.1. He also admitted that Sher Ali, I.H.C.,
Sherin and Saeedullah Constables made `aerial' firing on Car No.3796-LOZ. He admitted
that with the firing of police officials one Jamal and Said Muhammad, who were
travelling in Motor Car No.3796-LOZ were injured. He also admitted that passengers
travelling in the Bus, were also injured with the police firing, but he tried to take shelter
that the firing was done in the course of performance of duties. Muhammad Anwar Circle
Officer, Anti-Corruption Mardan was examined as D.W.2. He had investigated the case
registered vide F.I.R. No.761 dated 17-10-1995 at P.S. Takht Bhai. He also admitted that
due to the police firing the passengers of the bus received bullet injuries and the son of
the plaintiff Abdul Qayyum also sustained injuries.
13. The above discussed evidence clearly establishes the fact that the police officials
present on the spot made indiscriminate firing due to which not only the deceased
Muhammad Qayyum sustained injuries, but other passengers of the Bus and Jamal and
Said Muhammad who were travelling in Motor Car No.3796-LOZ also sustained injuries.
14. The question that requires determination at this point is as to whether the I.H.C. Sher
Ali, Sherin and Saeedullah Constables were justified in making indiscriminate firing at a
public place in the rush hours, answer to this question is obviously in negative. It is a
matter of common knowledge that Takht Bhai Railway Crossing is one of the busiest
place in Takht Bhai. If the police party present there had received information that Motor
Car No.3796-LOZ had disobeyed the signal of police and had broken the road check set
up by police, then the driver of A the car and other persons sitting in the car were not to
be fired at. The police officials present at the road crossing could have blocked and
stopped the said motor car by closing the Railway Crossing or by blocking the road by
any other means, but instead of adopting other measures to stop the said vehicle, they
resorted to indiscriminate firing without caring that the precious lives of the persons
travelling in the said motor car were in dangers, but many people out of the public could
also be injured due to their indiscriminate firing. The police officials had tried to take up
shelter that the persons travelling in Motor Car No.3796LOZ were involved in case
registered vide F.I.R. No.761 dated 17-10-1995 under sections 468/471/420/379,P.P.C.
and section 14 of the Islamic Law at P.S. Takht Bhai EXh.D.W.2/D-1 but the perusal of
the said F.I.R. reveals that the same was registered much after the firing made by, the
police authorities i.e. the said F.I.R. was registered at 9-10 a.m., whereas firing was done
by the police officials at 8-30 a.m. as is clear from F.I.R. Exh.D.W.2/D-1). This indicates
that the said A F.I.R. was registered to justify the injuries of Jamal and Said Mahmood
who were traveling in the said car as well as injuries sustained by the passengers of the
Bus including the deceased.
15. It is by now settled that negligence is omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man would not do.
"Negligence" is not a question of evidence but it is an inference to be drawn from the
proved facts. It is not an absolute term but is relative one and is rather of comparative
term. It is also well-settled that burden to prove "negligence" is on plaintiff and not for
the defendant to disprove it, but there is an exception to this rule which applies whether
the circumstances surrounding the thing which causes the damage or at the material time
exclusively under the control or management of defendant or his servant and the
happening is such as does not occur in the ordinary course of thing without negligence on
the defendant's part, which is known as "res ipso loquitur". According to the above
mentioned doctrine safety is best secured when it is made the responsibility of the person
who must not only take precautions to avoid accident but who alone decide what those
precautions should be.
16. In the case in hand the consequences of indiscriminate firing should have been known
to those who resorted to the same without taking any precaution that any person from
public is not hit by their firing. They failed to care about the consequences of their acts. A
prudent and reasonable Police Officer would not have acted in the manner Sher Ali
I.H.C., Sherin and Saeedullah constables acted.
17. So far as the second question as to whether Muhammad Qayyum died due to the
firing of the police officials is concerned, answer to this question is also in affirmative.
Evidence establishing that Muhammad Qayyum was hit with the firing of the police
officials has been discussed in the above paragraphs and there is no need to repeat the
same. D However, it is worth-mentioning that the firing by a police official was also
admitted by Sher Malook, A.S.-I. P.S. Takht Bhai D.W.1 and Muhammad Anwar Circle
Officer, Anti-Corruption, Mardan. D.W.2. the Medico-legal report Exh.P.W.1/1 also
lends full support to the fact that the deceased was hit with the police firing and died due
to the same.
18. So far as the third question i.e. whether the respondents/ plaintiffs were entitled to
damage if so to what extent, answer to this question is also in affirmative. It is in
evidence that Muhammad Qayyum was at the relevant time student of Pre-Engineering
1st year in the year 1991-92 in Government College Lund Khawar. This fact was stated
by Yousaf Ali, Record Keeper, Government College Lund Khawar, who was examined
as P.W.3. He placed on record copy of Admission Register as Exh.P.W.3/1. This witness
was not cross-examined through opportunity was provided by the learned trial Court. The
identity card of the deceased Exh.P.W.7/3 certificate issued by Principal Quaid-e-Azam
Commercial College Exh.PW.7/4. Character certificate Exh.P.W.7/5 also support that he
was student of pre-Engineering and was born on 4-5-1973. It has also been established, as
mentioned above, that he was traveling in Bus No.PRC-3385 to his village on 17-10-
1995 and was hit by the firing of police, there was no lawful justification for the police
officials to make indiscriminate firing only for stopping the vehicle which has not cared
for the signal of the police officials. Muhammad Qayyum at the relevant time was sitting
in the bus, he was not aware of the indiscriminate firing made by the police officials,
therefore, he could not adopt any precautionary measure, he was hit with the negligent
firing of police and died later on, therefore, the respondents/plaintiffs were entitled for
the damages. The next question which requires determination is as to how much damages
the respondents/plaintiffs were entitled for. While determining the quantum of damages,
superior Courts have laid down criteria in Federation of Pakistan through Secretary
Railway and another v. Hafiza Malika Khatoon Begum and others 1996 SCMR 406 in
which it was held:--
"The compensation in both the cases has been granted on a well recognized
principles in which taking into consideration inter alia, the expectancy of life of
the deceased and his income."
Similarly, in Waseema and another v. Karachi Transport Corporation through Managing
Director, Director or Secretary and another 1998 CLC 573 the life expectancy of the
deceased, was taken to be 70 years, loss of pecuniary benefits, earning capacity of
deceased additional earnings and even after retirement his earning etc. was calculated and
decree was passed in his favour.
Likewise in Roshan Jan and 3 others v. Pakistan and 2 others 1997 CLC 1417 normal
expectancy of life of 70 years of deceased, his income, future prospectus were taken into
consideration and his total income was directed to be given to his heirs.
Similarly, in Shah Bashir Alam and 2 others v. Messrs Arokey Chemical Industries Ltd.
1997 MLD 2308 normal life span was taken at 60 years and it was held that where cogent
evidence had come on record that in family of deceased normal age was more than 60
years, Court would not restrict itself to 60 years as expected age of the deceased or
concerned beneficiaries but who expect 65 years or even more depending on assessment
on the basis of evidence on record.
19. In the case in hand the learned trial Court has rightly taken into consideration that the
life expectancy of the deceased was 60 years as he was a young boy of 20 years. He was
healthy and was not suffering from any disease He could have easily worked for 40 years,
therefore, the learned trial Court has granted Rs.19,20,000 at the rate of Rs.4,000 per.
month for 40 years. The learned trial Court has also granted Rs.1,00,000 to the
respondents /plaintiffs for mental torture and agony and shock F cause to them due to
death of their young son and a sum of Rs.1,00,000 the amount spent on medical
treatment. It is worth-mentioning that respondents/ plaintiffs had proved that they spent
more than Rs.1,00,000 towards medical expenses by placing on record prescriptions and
receipts Exh.P.W.7/6 (27 sheets) and there is no rebuttal/denial from the appellants' side
that the said amount was spent on his treatment.
20. The learned trial Court has properly appreciated the evidence available on record and
has also rightly applied law applicable to the case in hand.
We have not been able to find out any justification to interfere with the impugned
judgment and decree. Resultantly, the appeal in hand is dismissed. Parties are left to bear
their own costs.
H.B.T./177/P Appeal dismissed.