IN THE HIGH COURT OF SINDH AT

KARACHI
Suit No. 74 of 1991

Mohammad Sarwar

Versus
Government of Sindh and others

Dates of hearing : 14.04.2017 and 25.05.2017

Date of Decision : 23.06.2017

Plaintiffs : Through M/s. Farrukh Usman and Aamir

Maqsood, Advocates for the Plaintiffs.

Defendants : Syed Aal-e-Maqbool Rizvi, Additional

Advocate General along with Inspector Mian
Raza, DSP (Legal) and SIP Muhammad Anwar
P.S. Saddar, Karachi.

Ms. Naheed Akhter, State Counsel.

Case law cited by the Plaintiff’s counsel

Relating to onus to proof, quantum of damages and vicarious liability.

1. 2010 MLD Page-54

[Islmic Republic of Pakistan through Secretary, Ministry of Defence,
Islamabad and others Versus Mst. Farzana Shabbir and others].

2. 2009 MLD Page-948

[National Logistics Cell Versus Abdul Qayyum Khan].

3. 2006 SCMR Page-207

[Punjab Road Transport Corporation Versus Zahid Afzal and
others].

4. 2006 MLD Page-19

[Mushtari Versus Islamic Republic of Pakistan through Secretary,
Ministry of Planning and Development, Islamabad and 2 others].

5. 2005 MLD Page-114

[Haji Abdul Razaque Versus Pakistan].

6. Un-reported Judgment in
High Court Appeal No.67 of 2000
[Karachi Water and Sewerage Board Versus
 2

Mirza Qasim Baig].

7. 2004 MLD Page-361

[Ehteshamuddin Qureshi Versus Pakistan Steel Mills Corporation].

8. 2004 MLD Page-491

[Aijaz and others Versus Karachi Transport Corporation].

9. 2003 MLD Page-39

[Mst. Sabira Khatoon and others Versus Muhammad Akram
Siddiqui and others].

10. 2001 YLR Page-821 [P. 825]B

[Shamim Akhtar Versus Muhammad Arif Baloch].

11. 2001 MLD Page-1845 [P. 1849]B,C,D

[Shaukat Ali Versus KESC].

12. 2001 CLC Page-928 [P. 931]B&C

[Mst. Nusrat Irfana Versus Federal Government of Pakistan].

13. 2001 CLC Page-913 [P. 916] A,B,C

[Ashiq Masih Versus Abbot Laboratories Pakistan Ltd].

14. 2000 CLC Page-111 [P.115]

[Roshan Bai Versus Pakistan Steel Mills Corporation].

15. 2000 CLC Page-381 [P.385].

[Bibi Khaida Versus Government of Sindh].

16. 1997 CLC Page-615 [P.619].

[Anisur Rehman Versus Government Govt. of Sindh].

17. 1995 MLD Page-633 [P.636]A

[Mst. Sakina Versus National Logistic Cell].

18. 1993 SCMR Page-848 [P.855]A

[Pakistan Steel Mills Corporation Versus Malik Abdul Habib].

19. PLD 1991 Karachi Page-291 [P.295]A

[Kazi Arifuddin Versus Government of Pakistan].

20. 1989 CLC Page-2153 [P.2156]A

[Hayat Services (Pakistan) Ltd. Versus Kandan].

21. 1987 MLD Page-2402 [P.2404] Para-4

[Spin Gul Versus Ikramul Haq].

22. 1987 MLD Page-898 [P.899]

[Abdul Haque Versus Pakistan Railways Telecommunication
Department].

23. 1982 CLC Page-1703 [P.1707]

[Mrs. Nimmi Francis Versus Muhammad Saeed Qureshi].

24. 1982 CLC Page-1228 [PP.1230]A&B

[Mst. Zebunnisa Versus Sindh Road Transport Corporation].
 3

25. 1982 CLC Page-1120 [P.1122]A

[Mrs. Gul Bano Versus Muhammad Ramzan].

26. Unreported decision of Hon’ble Supreme Court

in Civil Petition No.69-K/94
[Anwar Ahmed Khan Versus The State and another].

Foreign Judgments in which

reasonable compensation was awarded to victims/Petitioners.

27.AIR 2000 Supreme Court Page-988

[Chairman Railway Board Versus Chandrima Das].

28. AIR 1997 Supreme Court Page-610

[D.K. Basu Versus State of W.B.]

29. AIR 1995 Supreme Court Page-1949

[Inder Singh Versus State of Punjab].

30. AIR 1992 Supreme Court Page-1689

[Bhagwan Sindh Versus State of Punjab]

31. AIR 1990 Supreme Court Page-709

[Gauri Shanker Sarma Versus State of U.P].

32. AIR 1990 Supreme Court Page-513

[Saheli a Women’s Resources Centre Versus Commr, of Police
Delhi].

33. (1985) 1 Supreme Court Cases Page-552

[State of Uttar Pradesh Versus Ram Sagar Yadav and others].

34. [Sunil Batra Versus Delhi Administration [December 20, 1979)].

35. [Prem Shankar Shukla Versus Delhi Administration [April 29,

1980].

36. AIR 1980 Supreme Court Page-1087

[R.R. Engineering Co. Versus Zila Parishad, Bareilly].

Research material.

State Lawlessness and the Constitution

A Study of Lock-up Deaths [ Muhammad Ghouse]

Case law relied upon by Defendants’ counsel

------

Other Precedents: (1). PLD 2010 Supreme Court Page-1612

[Mir Shakeelur Rehman and others
Versus Yahya Bakhtiar and others].
(2). 1996 MLD (Karachi) Page-803
[A. Majid Sama Versus The Asbestos
Cement Industries, Ltd. and another].
 4

(3). PLD 1981 Supreme Court Page-56

[Mst. Zainab Bibi and others Versus
Mst. Bilqis Bibi and others].

(4) PLD 1992 Supreme Court page 595

{Hakim Khan and 3 others versus
Government of Pakistan}

Law under discussion: (1). The Constitution of the Islamic Republic

of Pakistan, 1973.
(2). The Fatal Accident Act, 1855.
(3). The Police Act, 1861.
(4). The Code of Civil Procedure, 1908

JUDGMENT

Muhammad Faisal Kamal Alam, J: The Plaintiff has filed the

present action at law against the Defendants, inter alia, for recovery of

Rs.50,00,000/- (Rupees Five Million Only) towards damages, under the

Fatal Accident Act, 1855, claiming the following relief _

“The Plaintiff, therefore, prays for the Judgments as decree as

under: -

a). A decree in the sum of Rs.50,00,000/- against the Defendants who

are liable jointly and severally to pay the said sum to the Plaintiff
on account of Damages / Compensation.

b). Interest at the rate of 15% per annum on the amount claimed in
clause (a) above from the date of the filing of the suit till
realization of the decretal amount be awarded.

c). Cost of the suit may be awarded to the Plaintiff.

d). Any other relief or reliefs that this Hon’ble Court may deem just
and proper under the circumstances of the case be granted.”

2. Present Plaintiff is father of the deceased-Muhammad Shakeel who

died while in the custody of Defendants, as claimed.

 5

3. In response to the summons issued by this Court, Written Statement

on behalf of Defendant No.5 was filed by the Advocate General Office,

where after, a Statement was filed by the learned Assistant Advocate

General that Written Statement filed by Defendant No.5 is also adopted by

Defendants No.1 to 4 (Government of Sindh, Inspector General of Police,

Deputy Inspector General of Police and Crime Investigation Agency)

respectively. The other Defendants failed to file their pleadings (written

statement).

4. On 22.12.1991, the following issues, earlier filed by the Plaintiff

were adopted as Court issues, as these were covering the entire controversy

in question_

“1. Whether the deceased Ch. Muhammad Shakeel died a natural

death or his death was caused on account of wrongful act, of
assault and torture in CIA Centre as by Defendants No.7 to 14 on
26.04.1990 while in custody of Defendant Nos. 7 to 14?

2. Whether the Defendants are liable to pay the damages /

compensation to the Plaintiff and another legal heir jointly and
severally? If so, to what extent?

3. Whether the Plaintiff is entitled to cost and interest / profit, as

claimed?

4. What other relief or reliefs this Hon’ble Court may deem fit?”

5. Evidence was only led by Plaintiff’s side, and the Report of

Commissioner as well as record of the evidence proceeding shows that

despite providing ample opportunities to Defendants, they remained absent;

consequently Defendants were debarred from leading evidence, vide order

dated 12.03.2013. In this regard, the Commissioner’s Report dated

05.03.2012 is of significance, which is available in the Court file,

 6

wherefrom, a cavalier attitude of Defendants towards instant proceeding is

apparent.

6. Findings on the above Issues are as under:-

ISSUES NO.1 TO 4 : AS UNDER.

ISSUE NO.1

7. Issue No.1 is pivotal. Though the Defendants did not lead any

evidence in support of their stance mentioned in the Written Statement of

Defendant No.5 (the then senior SSP CIA Centre; Samiullah Merwat), but,

still the Court must see that whether the Plaint discloses a cause of action

and since this case has been filed under a special statute, viz. Fatal Accident

Act, 1855, if the claim is within time.

8. Present claim is in respect of a custodial death (as alleged) of

deceased Muhammad Shakeel, the son of Plaintiff, and per Plaint he died at

CIA Centre on 25.04.1990. In the Written Statement, the factum of death in

custody of Defendants is not questioned but its causation. Stance of

Defendants as put forth is that said deceased Muhammad Shakeel died on

26.04.1990 due to cardiac arrest when the Defendants were taking him to

Hospital for treatment. The present suit has been filed on 31.12.1990, that

is, within the period of limitation of one year as prescribed by the above

statute, therefore, at least in terms of the above statute (The Fatal Accidents

Act) the present claim is not a time barred one. However, the arguments of

learned Additional Advocate General that the present case falls within the

ambit of Section 42 of the Police Act, 1861, will be considered in the later

part of this Judgment. In the said Section 42, the time prescribed for

initiating such an action is three months.

 7

9. Defendants denied that the said deceased was tortured, whereas, the

stance of Plaintiff is that he was brutally beaten up and tortured to death by

the Officials of CIA, that is, Defendants No.4 to 14.

10. It is a matter of record that none of the Defendants entered the

witness box to defend the claim against them and hence the Written

Statement filed by the official Defendants loses its evidentiary value as

contents whereof were never proved in the evidence.

10-A. The learned Additional Advocate General has filed a Statement

dated 25.05.2017 informing the Court that Defendant No.7 (Choudhary

Muhammad Latif) has passed away, whereas, the Defendant No.10 (Malik

Riaz) and Defendant No.12 (Shakeel) have been murdered. Together with

his Statement, copies of Death Certificate and FIR have also been enclosed

confirming the fact that Defendant No.7 (Choudhary Muhammad Latif)

and Defendant No.10 (Malik Riaz) are now deceased, but there is no

document with regard to Defendant No.12 (Shakeel). However, the

Statement at Bar of learned Additional Advocate General in this regard is

accepted.

11. Adverting to the evidence led by Plaintiff, who himself appeared in

the witness box as PW-1 and on oath reiterated his averments of Plaint and

to support his claim, has produced number of documents out of which the

following documents are either public documents or judicial, having

statutory recognition and thus have its own evidentiary weightage;

“1. Exhibit P/20; it is a Post Mortem Report dated 26.04.1990 prepared

by Dr. Khalid Ansari the then Medico Lego Officer [MLO] of Jinnah

Post Graduate Centre Karachi (JPMC).

1. A covering letter dated 29.9.1991 (Exhibit P-23/E) under which the

Judicial Enquiry Report was brought on the case file of this cause.
 8

2. Criminal Complaint No.419 of 1990 (Exhibit P/24-B) and its record

and proceedings together with the order dated 08.12.1991 passed by

the then learned IInd Additional District and Sessions Judge, South

Karachi as Exhibit P-24/F.

3. Exhibit P/25 a Certificate issued by Regional Directorate

of Apprenticeship Training, Government of Sindh, Pakistan

certifying that the deceased has successfully completed his Technical

Education.

4. Exhibit P/26 another Certificate from Pakistan Steel Fabricating

Company Limited, evidencing the fact that the deceased has

successfully completed two years training of machinist.”

12. Plaintiff’s witness (PW-1) on oath has specifically stated the date

and place of death of deceased. He deposed that on 25.04.1990 the official

Defendants No.7 to 14 picked up the deceased from Jodia Bazar, Khori

Garden, brought to him at CIA Centre and subjected him (the deceased) to

brutal torture, which caused his death. To cover up their heinous illegal act

a bogus FIR was lodged, wherein, the deceased was nominated for carrying

an unlicensed weapon. On the other hand, the stance of official Defendants

as mentioned in their Written Statement is that the deceased died his natural

death because of his old asthmatic illness which led to the cardiac arrest.

Thus, factum of death of the deceased Muhammad Shakeel while he was in

the custody of CIA officials–Defendants No.4 to 14 has not been denied,

but only its cause.

13. The conduct of CIA officials/Defendants No. 4 to 14 should also be

taken into the account. From the evidence, available on record, which is

unrebutted and unchallenged and the documents mentioned in the

preceding paragraphs, it is not difficult to ascertain that

 9

officials/Defendants throughout made attempts to cover-up their criminal

act by fabricating evidence, preparing false inquest reports and deposing

falsely before the concerned authorities. The finding of Judicial Inquiry is

of prime significance. It has also been recommended in the above Judicial

Enquiry that Sub-Inspector Fakhruddin, who was a duty officer at Saddar

Police Station on the date of the incident, should be proceeded against in a

departmental action for preparing two Inquest Reports; both contradicted

each other. In the first Inquest Report prepared under Section 174 of Cr. PC

(Criminal Procedure Code, 1898) the said Fakhruddin attempted to give a

clean chit to his colleagues (present Defendants), by not mentioning the

injuries sustained by the deceased and cause of death was shown as natural.

Later, on the protest of the deceased family members, a fresh or second

Inquest Report was prepared under the supervision of the then A.C.M.

Karachi (South), and the same Fakhruddin [above named SIP],

mentioned/reported the injuries on the body of the deceased, in the relevant

column of this second inquest report. Both these reports were produced

before and exhibited by the Enquiry Officer.

14. In the said Judicial Enquiry, the then Medico Legal Officer (MLO)

Dr. Khalid Ansari, who performed the autopsy on the body of the deceased,

was also thoroughly examined. It is necessary to reproduce the relevant

portion of the Enquiry Report concerning the above named MLO, herein

below_

“The witness Dr. Khalil Ansari says that in his opinion for which this

judicial enquiry was ordered to be conducted the evidence of Dr. Khalil

Ansari was the most important. He has deposed that on 26.04.90 at about
 10

0425 hours he was working as M.L.O at Jinnah Hospital and performed the

post mortem examination on the body of deceased Mohammad Shakeel.

15. On external examination he found the following injuries on the

person of the deceased_

1. There was contusions on back at Gluteal region blueish in colour

2 x1 inches.

2. There was abrasion on right side elbow 1X-1/2.

3. There was contusion at both right and left feet 1X 1'' at sole which

was bluesh in colour.

4. There was abrasion on back of neck 1/2 X 1/2.

5. There were also abrasions on right and left knee each about 3/4 X

1/2''.

16. On internal examination he found the following conditions:

HEAD On opening the sculp skull bone were found

intact……..

THORAS On opening thoracio cavity bony-cage found normal

right and left lungs were found congested.

HEART Both chamber contained blood and was sent for the

expert opinion to the Histopathological laboratory to

get report expert opinion from the pathologist.

ABDOMEN On opening abdominal cavity stomach contained very

small quantity of semi-digested food. Intestine was

loaded with its contents, spleen, liver kidneys were

found likely congested urinary nlader contained very

small quantity of urine.

 11

The viseras have been sent for chemical examiners

expert opinion.

17. In his opinion the cause of death could not be ascertained without

the report of chemical Examiner’s and Pathologist.

18. He also found the following conditions of the body of the deceased.

On external examination of column No.6 the body of male aging

about 24 years wearing one greenish Shalwar and Kamiz and one ajrak.

The body was fresh average height and good physic. The condition of

clothes were old and use. Rigor mortis started developing. There was no

sign of decomposition seen. Post mortem lividity was present at back and

was not fixed, eyes were semi-opened congested, pupils were fixed and

dilated, mouth was semi-opened, tongue was inside the lips nails were

cynosed, there was nothing oozing from mouth, nose and ear. The time

between death and post mortem is about 2 to 4 hours.”

19. It is specifically mentioned in the said Enquiry Report that Chemical

Examiner’s Report was also produced and the witness was cross-examined

by the counsel of present Defendants.

20. The contents of the Judicial Enquiry Report corroborates the version

of PW-1, who has testified about the factum of death of his deceased son in

the following words (paragraphs 8 and 9 of the Affidavit in evidence):

“8. That I say that the post-mortem was also conducted and later

on chemical examination and pathological reports were also taken which

also corroborated the factum of the death of the deceased on account of

injuries by torture and beating mentioned in preceding paras in addition to

internal injuries caused to the deceased in CIA Centre by the Defendants

No.7 to 14 jointly during the course of employment of Defendants No.1 to 6.

 12

9. That I say that after coming across the Inquest Report

prepared in presence of Magistrate of Jethannand. SIP, Fakhruddin of
Saddar Police Station prepared final revised Inquest Report containing all
the signs of injuries in respective columns leading to death of the deceased
which were silent in last reports prepared under the pressure of Defendant
No.7 in the first inquest Report.”

21. Examination of the Judicial Enquiry Report also reveals the modus

operandi of Defendants (at least) at that relevant time. Inter alia, it has been

mentioned in the above document (Judicial Inquiry Report) that even one of

the mashirs, namely, Mushtaq was a stock witness of Defendant No.7

(Inspector Choudhary Mohammad Latif), who was the main culprit in this

entire case. The Inquiry Officer in an unequivocal term has determined that

the cause of death of deceased was due to cardiac arrest from vasovagal

shock. It is not out of place to mention that the above Judicial Enquiry

Report has not been challenged by Defendants at any forum. The above-

named term ‘vasovagal’ in medico-legal parlance means that when a

person is fainted or his body over reacts due to certain factors, such as

the sight of blood or extreme emotional distress. One of the causes as

explained medically is ‘stress directly related to trauma’.

22. Record and proceedings of the afore-mentioned Private Complaint

No.419 of 1990 has also been produced in the evidence and statement of

one of the witnesses under Section 200 (Criminal Procedure Code), which

has been exhibited as P-24/B is worth considering. The witness name is

Khalid Hussain, who was also one of the under-trial prisoners at the CIA

Centre. He testified that he was in the CIA Centre when the deceased was

brought there. He specifically mentioned the date as 25.04.1990 and the

time 6:00 PM, when deceased Muhammad Shakeel was hanged with a rod

from the roof and his hands were tied up and he was beaten up by

Defendants by ‘Chittar’-Stick.
 13

23. After referring to and reading the afore mentioned deposition of

Plaintiff and documents/exhibits in support thereof, M/s. Farrukh Usman

and Amir Maqsood, Advocates, while representing the Plaintiff, has relied

upon number of reported decisions and research material, which are

mentioned in the title of this cause; primarily the Plaintiff’s side has placed

the reliance on three categories of case law; the one relates to discharging

the burden of proof in such fatal accident cases; second one pertains to the

criteria for ascertaining the quantum of damages and the third one is about

the rule of vicarious liability. The other set of case law comprises of foreign

judgments in which reasonable compensation was awarded in favour of

Petitioners/victims.

24. Crux of the judicial precedents cited by the Plaintiff’s counsel on the

subject is that the Plaintiff is to prove the factum of incident only and then

the burden shifts on to Defendants to disprove the causation if they want to

succeed in the claim against the Plaintiffs. The afore-cited decision of

Punjab Road Transport Corporation case (2006 SCMR Page-207) is on

all fours with present lis, as the Plaintiff has not only proved the factum of

custodial death of his deceased son, when he was in custody of Defendants,

but the latter (Defendants) have failed to disprove the causation, that the

death did not occur due to acts of Defendants.

25. The learned Additional Advocate General strenuously controverts

the submissions of Plaintiff’s counsel and argues that present incident of

custodial death does not fall within the basic ingredients of the aforesaid

Act of 1855. Secondly, the limitation for bringing such an action is three

months as envisaged by Section 42 of the Police Act, 1861 and thus the

present claim is time barred. His third segment of argument is that present

Defendants were also accused in the afore-referred Criminal Complaint

No.419 of 1990, but subsequently have been acquitted by the Order dated
 14

13.08.1990, therefore, present suit should also meet the same fate. To

fortify his arguments, the learned Additional Advocate General has

produced under his Statement dated 25.5.2017 a certified copy of the above

decision (order) given in the Criminal Complaint No.419 of 1990.

26. The above stance on behalf of the Defendants is given due

consideration. Contents of the Plaint have been examined and after

conclusion of the evidence I am of the view that the present case does fall

within the purview of the Fatal Accident Act, 1855 and more particularly

Section 1, in which, inter alia, it is specifically mentioned that for wrongful

actions a claim under the above statute lies. Since factum of custodial death

of Plaintiff’s son is now an admitted fact, therefore, it is indeed a gross

wrongful act committed by the Defendants No.6 to 14, therefore, the

present claim is maintainable under the above Fatal Accidents Act of 1855.

This finding automatically answers the second objection of the Defendants

about the limitation, since instant action at law falls within the ambit of Act

1855, therefore, the time prescribed therein of one year shall be applicable

and the present claim is within time. It follows that limitation of three

months as mentioned in Section 42 of the Police Act, 1861, is not

applicable at all. With regard to the acquittal of Defendants in the above

Criminal Case; the findings given therein are not binding on this Court, in

view of a settled rule of evidence applicable in Criminal and Civil Cases. In

a Criminal Case, the prosecution is to prove beyond reasonable doubt the

guilt of the accused, but, in a civil proceeding of the nature, the matter can

be decided on the basis of preponderance of probability. The dicta of the

afore-mentioned reported Judgments of Hon’ble Supreme Court handed

down in the cases of Mst. Zainab Bibi Versus Mst. Bilqees Bibi and in

particular Karachi Transport Corporation Versus Muhammad Hanif

are applicable to the issues at hand.

 15

A reported decision of Hon’ble Supreme Court in Karachi

Transport Corporation Versus Muhammad Hanif (2009 SCMR Page-

1005) has rightly been relied upon by learned counsel for Plaintiff to cover

and rebut both the objections of Defendants about vicarious liability and

acquittal of Defendants in a criminal proceeding. The Hon’ble Apex Court

in the above decision in an unequivocal term has held that employer is

always vicariously liable for acts of its employees performed in course of

duties and hence the Appeal of Karachi Transport Corporation was

dismissed, which was directed to compensate the Respondents, who have

filed a suit under the Fatal Accident Act. Similarly, the Hon’ble Supreme

Court has also clarified by observing that since standards of appraisement

of evidence in Criminal and Civil Cases are altogether different, therefore,

the findings of a Criminal Court would not be binding on Civil Court,

besides the fact that while exercising civil jurisdiction this Court cannot sit

in an appeal on the decision of the Court which has decided the Criminal

Complaint No.419 of 1990 of present Plaintiff.

In addition to the above, the acquittal of private Defendants in the

above referred Criminal Case does not have any adverse bearing on the

present lis, for the reason that Defendants No.1, 2 and 3 would still be

liable to compensate the Plaintiff by applying the rule of vicarious liability

as discussed in the preceding paragraph.

However, contention of learned Additional Advocate General

regarding the abatement of proceedings against the above-mentioned

Defendants is correct and is in line with the settled principle of

jurisprudence and a chain of judicial pronouncements based on the legal

maxim; actio personalis moritur cum persona. The decision of Hon’ble

Supreme Court in the case of Mir Shakeel ur Rehman Versus Yahya

Bakhtiar and our Court in case of A. Majid Sama Versus the Asbestos
 16

Cement Industries. Ltd. and another (supra) are of relevance; it is held,

that where damages are sought for the personalized acts of Defendants then

the proceeding will abate on the death of a Defendant / Defendants.

Therefore, present suit proceeding stands abated against Defendant No.7

(Choudhary Muhammad Latif), Defendant No.10 (Malik Riaz) and

Defendant No.12 (Shakeel). Therefore, Issue No.1 is answered that the

deceased Ch. Muhammad Shakeel son of present Plaintiff did not die a

natural death, but the same was caused by the wrongful acts of Defendants

No.7 to 14 when the said deceased was in their custody on 25.04.1990 and

expired around midnight; 26.04.1990.

ISSUES No.2 and 3.

27. Now adverting to the quantum of damages. Although pleading

(Written Statement) of Defendants has been discarded as they failed to lead

any evidence, but still looking at the peculiar facts of present case, the above

Written Statement filed by Defendant No.5 (the then SSP CIA Centre) may be

considered for assessing the defense that is set up by the Defendants. It is also

pertinent to mention that no written statement was filed on behalf of Defendants

No. 6 to 14. The Written Statement of Defendants has not controverted the

averments of Plaintiff with regard to his death in their (Defendants) custody, but

only cause of death was denied. Similarly, pleadings of Plaintiff about deceased’s

life expectancy, running of business, monthly earnings and other credentials

have neither been questioned nor rebutted in the evidence, for the reasons

mentioned above. This significant fact is further fortified when the Plaintiff

led the evidence on these material factual aspects to justify his claim of

damages, but was never cross-examined.

It has been specifically stated on oath by the Plaintiff that the

deceased’s son was keeping a good health and his entire family have a

reasonable life span up to 75 years. It was further deposed that the deceased

was paying Rs.6,000/- (Rupees Six Thousand) to his parents, at that

 17

relevant time, that is, in the year 1990. It has also been specifically pleaded

and subsequently testified on oath that the deceased was planning to set up

a small unit for making parts through Moulding Machines, which would

have increased his monthly earning upto Rs.40,000/- (Rupees Forty

Thousand Only) per month. In these circumstances, a sum of

Rs.50,00,000/- (Rupees Five Million Only) has been claimed by Plaintiff

towards damages and compensation. The claim of Plaintiff with regard to

the quantum of damages is also unchallenged, therefore, admitted by

Defendants. To assess the quantum, number of decisions have been relied

upon by Plaintiff’s counsel, but all of them do not require a discussion here,

except the decision of Hon’ble Supreme Court handed down in Punjab

Road Transport Corporation case and a decision of a learned Division

Bench of this Court in Ehteshamuddin Qureshi Versus Pakistan Steel

Mills (ibid), wherein, inter alia, not only the earlier principle in such cases

has been reiterated, but the same has also been further expounded and

summarized vis-à-vis a civilized society living under a constitutional

dispensation. It would be advantageous to reproduce herein below the

relevant paragraphs of the above Supreme Court Judgment:

“10. The superior Courts laid down following principles to

be kept in view while awarding damages in case a person has
died on account of accident due to the negligence of the driver of
the petitioner's vehicle, which causes death of the victim:

(i) the position of each dependent of the deceased should be

considered separately;

(ii) the damages are not to be given as solatium but should be

calculated with reference to a reasonable expectation pecuniary
benefit, from the continuance of the life of the deceased.
Damages claimed by dependents for their own pain and
suffering or for the loss occasioned to them due to the death of
the deceased which is not referable to the expectation of any
such pecuniary benefit is outside the scope of the Act;
 18

(ii) the deceased need not be earning or the dependents need not
be actually deprived of benefit. Reasonable expectation of such
earning or benefit is enough;

(iv) the pecuniary loss due to the death should stem not
from a mere speculative possibility of pecuniary benefit from the
continuance of the life of the deceased but only from a
reasonable possibility of such benefits;

(v) where the actual extent of such pecuniary loss cannot

be ascertained accurately, the sum may be an estimate or partly
a conjecture;

(vi) in assessing the damages all circumstances which

may be legitimately pleaded in diminution of the damages should
be considered;

(vii) the pecuniary loss of each dependent should be

ascertained by balancing on the one hand the loss to him of
future pecuniary benefits and on the other any pecuniary
advantage which from whatever source comes to him by reason
of death..

11. The Constitution of a country is a kind of social contract

which binds people, society and a State. The terms of the
contract foster feelings of interdependence of belonging to an
entity and of adherence to law. An honest commitment to the
goals set out in the Constitution H ensures promotion of
nationhood and stability of the system. In view of Article 4 read
with Article 5(2) of the Constitution, it is the duty of each and
every organ of the State and people of Pakistan to work within
the framework of Constitution and law as law laid down by this
Court in the following judgments:--

(1) Ch. Zahoor Elahi's case PLD 1975 SC 383 and (2) Zahid
Rafique's case PLD 1995 SC 530.

12. Our Constitution contains Chapter I relating "Fundamental

Rights" in which life of human being is given due importance. It
requires everyone to work for the welfare of the people of
Pakistan but a person who is violating the law and Constitution
works against the welfare of the people that is why it is high time
to promote the law of tort so that the people must understand
that we cannot live as a nation without performing our duties
 19

within the framework of law. As in the present admittedly the

driver had driven the bus in violation of the mandatory
provisions of Motor Vehicle Ordinance, 1965 and rules framed
thereunder thus, causing fatal injuries to the innocent citizens.”

(Underlining to add emphasis)

28. Taking into the account the evidence led by Plaintiff, particularly with

regard to his specific Statement about life expectancy of the deceased who

was just a 24 years old young man, the nature of business he was doing;

running a viable General Store, simultaneously acquired Technical

Education from different Institutes for setting up a small manufacturing

Unit, together with the deposition of Plaintiff about longevity in his family,

it is not difficult to conclude and hold that life expectancy of 75 years in

Plaintiff’s family has been proved. The deceased, considering these factors,

may also have lived for another 50 years approximately, therefore, the

claim of awarding damages of rupees five million is justifiable and hence

granted.

29. It is a settled principle of law in claims relating to tortuous liabilities

that master/employer would be liable for the wrongful acts of his

employees/servants. The reported case of Mukhtiar Begum Versus

Karachi Transport Corporation (supra) of the learned Division Bench of

this Court provides a complete answer. This legal position is further

fortified by the Hon’ble Apex Court in its above referred decision of

Karachi Transport Corporation Versus Muhammad Hanif, wherein, it

is held, inter alia, that an employer is always vicariously liable for acts of

its employees performed in the course of duties. It is a matter of record that

Defendants No.4 to 14 were performing their official duties and acts under

the supervision, control and authority of Defendants No.1, 2 and 3. Hence,

Defendants No.1, 2 and 3 and particularly Defendant No.1 which is a

Provincial Government, are liable to compensate the Plaintiff, besides other

 20

Defendants. Consequently, Issues No.2 and 3 are answered accordingly,

that Defendants are liable to pay the damages / compensation of

Rs.50,00,000/- (Rupees Five Million Only) together with 10% (percent)

markup from the date of institution of the suit till realization of the amount

to Plaintiff and his wife, that is, parents of the deceased, jointly and

severally.

30. Similarly, another reported case of Samiullah Khan Marwat (supra)

who was at that relevant time was the Senior Superintendent of CIA, is of

relevance, inter alia, as Hon’ble Supreme Court in the above cited case

maintained the order of learned Services Tribunal, upholding the dismissal

of said Samiullah Merwat from service. Serious allegations against him

become part of the judicial record, in the above case; which included,

extortion, kidnaping and resorting to illegal confinement and torture. This

reported decision in 2003 SCMR Page-1140, lends further support to the

case of present Plaintiff because it relates to the same period when the

present unfortunate incident of custodial death had taken place.

The Hon’ble Supreme Court in its decision given in the case of

Samiullah Khan Merwat Versus Government of Pakistan (supra) has

further clarified rather expounded the concept of administration of justice;

which is not confined only to the judicial system, rather every person

discharging the functions in relation to rights of people is bound to act

fairly, justly and in accordance with law. Therefore, those who are at the

helm of the affairs are bound rather under a constitutional obligation to

address and remedy the genuine grievances of citizens of this Country and

particularly for such fatal injuries.

31. Plaintiff’s counsel has placed reliance upon the case law of foreign

jurisdictions. Canadian Court in the case of Thomas Francis (mentioned in

 21

the title) has awarded compensation to the said Appellant who was a

prisoner inmate and was injured while doing cleaning work of the windows

at the Jail premises. Though the evidence with regard to negligence of Jail

Administration was not conclusive, but still the learned Appellate Court of

Canada while invoking the principle of vicarious liability awarded

compensation to the said prisoner inmate, inter alia, by holding that Prison

Authorities owe a duty to the suppliant for taking reasonable care of his

safety as a person in their custody and in failure to do so, Crown

(Government) is liable.

Similarly, another reported case of Indian jurisdiction handed down

in the case of Chairman Railway Board Versus Chandrima Das and

others (supra), the learned Supreme Court of India has upheld the decision

of Calcutta High Court, which has granted the compensation in exercise of

its writ jurisdiction/power of judicial review. The Respondent (victim) was

a tourist from Bangladesh when she was gang raped at Railway Station by

some Railway Staff (employees).

In another case of Indian Supreme Court (reported in AIR 1990

Supreme Court Page-513) adequate compensation was granted to a victim /

Petitioner whose minor son died due to tortuous act of Police Officials. It

was held, inter alia, there should be no difficulty in holding that the State

should be as much liable for tort in respect of a tortious act committed by

its servant within the scope of his employment and functioning as such as

any other employer.

32. Looking at the peculiar nature of the case, highhandedness of

officials who are Defendants, the conclusive evidence that has come on

record and the complacent attitude of Defendants No.1, 2 and 3, I cannot

restrain myself from observing that once the Defendant No.1 (Government

of Sindh) and Defendants No.2 and 3 have acquired knowledge about the
 22

unfortunate incident, particularly after findings of a duly constituted

Judicial Enquiry, then being a Provincial Government and senior officials

of an Islamic Welfare State, they should have compensated the family of

the deceased long time back.

The importance of a Judicial Enquiry can be determined from an

unreported decision of Hon’ble Apex Court given in the Civil Petition

No.69-K/94 [Anwar Ahmed Khan Versus The State and another], a

copy of which is available in the research Folder (on Police Atrocities)

submitted by the learned Advocates representing the Plaintiff. The Hon’ble

Supreme Court in the above case of Anwar Ahmed Khan has refused to

grant the leave against the decision of this Court, whereby, inter alia,

certain directions were issued to Provincial Government on the basis of the

findings of a Judicial Enquiry (Report). It is not out of place to mention

here that the decision of this Court passed in above case (Constitution

Petition No.D-2182 of 1993) and subsequently, of the Hon’ble Supreme

Court, was primarily based on the findings of the Judicial Enquiry Report

in respect of a custodial death.

33. In the evidence the Plaintiff has also testified about his helplessness

and traumatic experience with the Government functionaries and in order to

get justice against such a brutal act, he had to run from pillar to post, but

never succeeded. In my considered view, the treatment meted out to

Plaintiff in all these years, might have convinced him not to pursue his

above referred Criminal Complaint, which subsequently came to an end as

mentioned in the preceding paragraphs. There is nothing more appalling

than this; a father is prevented to pursue the case of his son’s death. This is

a ironic and not acceptable in a Country, which is being run under a

Constitution that contains provisions of fundamental rights, which in fact

are the basic human rights.

 23

34. In Hakim Khan case reported in PLD 1992 SC Page-595 (supra)

the term ‘Oolilamr’ ( ) as mentioned in the Holy Quran, has

been explained to include all the three limbs of an Islamic State, namely

executive, legislature and judiciary. If a common man is bound to follow

orders given by ‘Oolilamr’ in a Muslim polity then the latter (‘Oolilamr’)

are also under a religious as well as constitutional obligation that their acts,

deed and decision should be just, fair and reasonable and the subjects /

public at large of a Muslim polity should be treated with benevolence,

justice and care, while criminals and wrongdoers should not go unpunished.

In my considered view, the above principle is further fortified in

Surah 38 Verse 26 (of Holy Quran). The fundamental rule is that

government in a Muslim polity or State has to dispense justice. If a

Government, its Ministers and High Officials after acquiring knowledge

about a plight of a citizen, particularly where a valuable human life is lost

and the conclusive evidence is against the government functionaries, yet

fails to address grievance of a citizen, then it is not difficult to observe that

the Government of the day as well as its Senior Government functionaries

have failed to discharge their function in accordance with the constitutional

mandate. In certain cases, depending on the facts and circumstances, a

concerned elected representative of a particular constituency or area where

a gruesome incident takes place and nothing is done to remedy a wrong,

then it means that the elected representative has not discharged his duty /

obligation towards his constituents with honesty.

Since legislation and policy matters rest with Government(s),

elected/chosen representatives and Executive Branch of the State, therefore,

they are saddled with a bounden duty to dispense the administrative justice

in an expeditious manner. In my humble view, the term elected

 24

representative includes, a person elected as a Councilor of a Ward right up

to a Senator.

35. The Articles 2-A, 27 and the Principle of Policy in fact make our

Constitution a unique and pragmatic social contract document of a Muslim

Polity. The grundnorm is that rulers and those who are in the authority and

at the helm of affairs is saddled with an obligation to treat their

subjects/citizens with benevolence and justice, but punishing the culprits

simultaneously, in order to restore the confidence of a common man in the

State Institutions. This follows that a despot or tyrant cannot be a ruler of a

Muslim polity or State.

36. The upshot of the above is that suit of the Plaintiff is decreed against

the Defendants jointly and severally and the Defendants are liable to pay a

sum of Rs.50,00,000/- (Rupees Five Million Only) to Plaintiff together with

10% (percent) markup from the date of institution of the suit till realization

of the amounts.

37. In view of the peculiar nature of this case, the Plaintiff is also

granted the costs of the proceeding.

Dated: 23.06.2017 JUDGE

M.Javaid.PA