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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 policeofficials---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 precautionarymeasures 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 inmotor 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 intoconsideration 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 KhatoonBegum 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 BashirAlam 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 ordinarilyregulate 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 absoluteterm, 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 damageor 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 whomust 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.

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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 sonof 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/LOZand 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.19,20,000was 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 thedefendants 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 anddecree, dated 31-1-2001.

3. Mr. Nizar Ahmad, the learned D.A.-G. representing the appellants argued that theimpugned 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 financialdamage 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 counselrepresenting 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 themala 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 towhich Muhammad Qayyum received bullet injury and consequently died. This fact was

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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 passengerstravelling 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 caseregistered 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. SherAli, 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 amatter 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 tobe 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, theyresorted 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 upshelter 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 ofthe 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 Mahmoodwho 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 reasonableman, 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 theproved 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 timeexclusively 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 abovementioned 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 AliI.H.C., Sherin and Saeedullah constables acted.

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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 policeofficials 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 CircleOfficer, 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 statedby 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-AzamCommercial 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, asmentioned 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 sittingin 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 forthe 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 SecretaryRailway 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 recognizedprinciples 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 thedeceased, 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 orconcerned 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 thelife 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 spentmore than Rs.1,00,000 towards medical expenses by placing on record prescriptions and

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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 andhas 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 beartheir own costs.

H.B.T./177/P Appeal dismissed.