1. ' ARSHAD NOOR KHAN, J.---Plaintiffs have filed suit for recovery of Rs.3,500,000 as compensation under the Fatal Accidents Act, XIII, 1855.
2. ' The case of the plaintiffs as disclosed in the plaint is that the deceased Yaqoob Masih, the father of the plaintiff Nos. 1 to 3 and husband of plaintiff No.4 met with a road traffic accident by defendant No. 1 who was driving Mazda Bus bearing Registration No. JE-2168 of Route No,. U-1 and the said bus is owned by defendant No.
2. It is further stated in the plaint that on 17-5-2002 the deceased along with his sister-in-law and others was going on foot-path in Street No. 7, East, Opposite Bungalow No. 5/B, Phase No. 1 Defence Housing Authority, Karachi where defendant No.1 while driving the said Mazda Bus recklessly in negligent manner, hit the deceased and his sister-in-law Shamim, both sustained severe injuries, and Yaqoob Masih succumbed to the injuries at the spot while Shamim sustained severe injuries.
3. The injured and the deceased were brought to Jinnah Hospital where MLO pronounced the death of the deceased Yaqoob Masih and injured Shamim was provided necessary treatment and facts of such incident were incorporated in F.I.R. No. 138/2002 under section 320/337-G P.P.C. Against the accused and challan against defendant No. 1 vide Charge-sheet No. 442/02 was submitted in the Court and such case is pending adjudication in the Court of learned II-A.D.J Karachi South. It is further stated in the plaint that the deceased was having a good physique and good source of income. He used to work in Serena Hotel and Pakistan State Oil and was getting salary of Rs.5000 per month and as a part time he also used to work in clinics/restaurants etc. Therefore he was earning more than 6,000, and used to give Rs.4,500 per month to the plaintiffs for house expenses.
4. It is further stated in the plaint that the deceased was the sole earning member of the family of the plaintiffs and after his death the plaintiffs are facing great difficulties in maintaining the affairs of the house and the plaintiffs during the course of life time being a father/ husband used to reside with the plaintiff's parents and after the death of the decea3ed, uncle of plaintiffs Nos.1 to 3 threatened them to leave their house. It is further stated in the plaint that the deceased was 35-36 years of age and due to death of the deceased the plaintiffs are facing great financial difficulties, as such, they have suffered a loss of their income amounting to Rs. 3,500,000 and for the said loss, the defendants are jointly and severally liable to pay.
5. ' The defendants have been served with the notice of the suit who filed their written statement separately, inter alia denying the allegation levelled against them in the plaint and have submitted that Mazda driven by defendant No. 1 used not to pass through the place where incident allegedly took place as the said place is out of route of U-1, and their Mazda was picked up by the police along with 3-4 other buses from the stop of Aagra Taaj Colony and the police after obtaining bribe from the remaining owner of the buses released them, and have implicated defendant No.1 in the present crime. According to them the plaintiffs have no cause of action against them nor they possess any legal character to file the present suit and that the suit is barred by limitation.
6. ' On the pleadings of the parties, the following Issues were framed:--
(1) Whether on 17-5-2002 the death of the deceased Yaqoob Masih was caused on account of rash, negligent driving of the defendant No.1, driver/employee of the defendant No. 2 during the course of employment while driving the Mazda. Bus No.JE-2168 of Route No. U-1 owned by defendant No. 2 at foot-path in Street No. 7 East Opposite Bungalow No. 5/B, Phase No. 1, Defence Housing Authority, Karachi?
(2) Whether the defendants are jointly and severally liable to pay the compensation/ damages as claimed by the plaintiffs?
(3) Whether the plaintiffs are entitled for the claim along with the mark-up as prayed?
(4) Whether the suit is time-barred?
(5) Whether the plaintiffs have no cause of action against the defendants and the suit is not maintainable?
(6) Whether the plaintiffs have no legal character/locus standi to file the suit?
(7) What should the decree be?
7. ' After framing of issues, the plaintiff No. 4 filed her affidavit in evidence, who was cross-examined by the learned counsel for the defendant. The plaintiff did not lead the evidence of any other witness and both the defendants filed their affidavits, who were cross-examined by the counsel of the plaintiff. They have also led the evidence of D.W. Muhammad Ghufran Khan and closed their side vide statement dated 23-8-2006.
8. ' I have heard Mr. Raja Ali Asghar, Advocate for the plaintiffs and Mr. Muhammad Ali Abbasi, Advocate for the defendants.
9. ' Mr. Raja Ali Asghar, Advocate for the plaintiffs vehemently contended that defendant No. 1 while driving the Mazda Bus recklessly and in a very high speed hit to the deceased who succumbed to the injuries, because of uncalled for and unwarranted driving of the defendant No.1 and the whole family of deceased has been spoiled because the deceased was the sole earning male member of the family. He further contended that the deceased was earning Rs.6,000 per month at the time of his death and, in case, the deceased would have alive and had to die his natural death, they had to receive the benefits from the deceased to the tune of Rs.3,500,000 and because of the unwanted act of defendant No.1 the plaintiffs have been deprived off from their legitimate right and defendant No.2, the owner of the Mazda Bus, whose responsibility could not be absolved, are liable to compensate the plaintiff, as such, suit may kindly be decreed. In support of his contention, he has relied upon the case of Punjab Road Transport Corporation v. Zahida Afzal and others reported in 2006 SCM R 207; the case of Pakistan Steel Mills Corporation Ltd. v. Ehteshamuddin Qureshi reported in 2005 SCM R 1392; the case of Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. Reported in 2004 M LD 361; the case of Irfan Khan and others v. Islamic Republic of Pakistan reported in 2005 M LD 1409; in the case of Aijaz and others v. Karachi Transport Corporation and others reported in 2004 M LD 491; the case of Najma Parveen v. Karachi Transport Corporation reported in 2004 M LD 518; and the case of Mst. Razia Khatoon and others v. Province of N.-W.F.P.
10. And others reported in 2002 M LD 539.
11. ' Mr. Muhammad Ali Abbasi, advocate for the defendants vehemently contended that there is no evidence available on record to connect defendant No.1 in driving the bus recklessly in rash and negligent manner as neither the name of defendant No.1 is mentioned in the F.I.R. Nor the number of the bus is mentioned in the F.I.R. He further pointed out that even during the course of the investigation, the prosecution has not collected any evidence against defendant No.1 to implicate him in the present crime. According to him the bus of the defendant No.2 was seized by the police from the stop of Aagra Taaz Colony along with other buses and remaining buses have been released after obtaining bribe by the police and defendant No.1 along with bus has been implicated falsely in the present crime.
12. ' According to him the evidence available on record is not implicating the defendants, as such defendants are not liable to pay any damages to the plaintiffs and the suit is liable to be dismissed.
13. ' I have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.
14. ' It would be appropriate to consider the respective contention advanced by the learned counsel for the parties in the context of the issues framed hereinabove. My findings on the above issues with reasons, are as under:-- Issue No. 1.
15. ' The claim of the plaintiff is that on the fateful day of incident, the defendant No.1 was driving Mazda Bus in rash and negligent manner and hit the deceased while he along with his sister-in- law Mst. Shamim was going on foot-path and the manner in which the incident took place shows that defendant No.1 was driving the bus in rash and negligent manner. The plaintiff in her evidence has also stated the said fact that the deceased was only bread earning member of their family and because of his death they are suffering great financial loss. She further stated that the deceased was earning Rs.6,000 per month and was paying Rs.5,000 to her to maintain the house and because of the sad demise of deceased she has been deprived of with such earning along with her children and defendants are jointly and severally liable to pay the said compensation to the plaintiffs in the sum of Rs.3,500,000. The plaintiffs have produced a photocopy of medical certificate of cause of death of deceased issued by Dr. Agha Irfan, M.L.O., vide Exh.P/2. She has also produced a photocopy of F.I.R., dated 17-5-2002 vide Exh.P.3 and photocopy of charge-sheet vide Exh.P/7. She was cross-examined by the counsel for defendants. In her cross-examination, she stated that she does not known if the F.I.R. Was registered in the name of unknown person and unknown vehicle. She further denied the suggestion in her cross-examination that neither the vehicle nor defendant No.2 was present at the time of incident. The testimony of P.W. Margaret, the plaintiff No.4 shows that she was not present at the time of incident, therefore, she could not be termed as eye-witness of the present case. Her sister Mst. Shamim, who was going with the deceased and also sustained injuries at the time of incident, was the real and natural witness of the incident but she has not been examined by the plaintiff to prove that the said Mazda Bus was driven by defendant No.1 recklessly in rash and negligent manner. The non-examination of Mst.
16. Shamim adversely reflects on the case of the plaintiff. The plaintiff has produced the copy of F.I.R.
17. Exh.P/3 and a perusal of the contents of F.I.R. Shows that the said F.I.R. Has been registered against an unknown vehicle and driver, the name of the driver obviously could not be mentioned in the F.I.R.
18. For the reasons that the driver was unknown to the prosecution, but the registration number of vehicle could have been noted and must have been mentioned in the F.I.R., as such, from the contents of the F.I.R., which is the base of the present suit, it transpires that the F.I.R. Is completely silent to implicate the defendant No. 1 and their vehicle to be responsible for the present incident.
19. The plaintiffs have also produced a copy of charge-sheet vide Exh.P/7, in charge-sheet defendant No.1 has been shown as accused and the number of the vehicle owned by defendant No.2 is also mentioned but the said charge-sheet is also completely silent regarding the arrest of defendant No.1 and seizure of Mazda Bus in question. It is, therefore, not clear from the contents of the charge- sheet that how and in what manner defendant No.1 was arrested and the vehicle was seized. The charge-sheet, Exh.P/7 is also completely silent to show that what evidence the Investigating Officer had collected against the defendants to implicate them and their vehicle in the present crime. A charge-sheet in criminal administration of justice is the gist of whole case of prosecution which requires to show that which of the accused was implicated by which of the evidence collected against him and in case, if, the charge-sheet is silent about the role attributed to the accused, it will be deemed that the evidence against the said culprit was not collected by the prosecution. As discussed above, the charge-sheet Exh.P/7 is completely silent to assess that how defendant No.1 and his vehicle has been implicated in the present case. The charge-sheet Exh.P/7 is also completely silent to show that vehicle which hit the deceased and injured, was being driven recklessly in rash and negligent manner, which are necessary ingredients of section 320, P.P.C. On perusal of whole contents of the charge-sheet, Exh.P/7, it has been emerged out that charge-sheet is completely silent regarding the arrest of defendant No.1 and involvement of vehicle in question.
20. The charge-sheet is also silent about the proposition that the said bus was subsequently examined by the Motor Vehicle Inspector in order to assess any damages to the said bus at the time of incident so as to involve the said bus in the present suit as according to the allegations of the plaint, the bus which hit to the deceased and injured while they were going on foot-path and in case, if the said bus had jumped on the foot-path, definitely there must be some scratch or damages on the said bus and since the said evidence is lacking in the present case, as such it could not be said that bus owned by defendant No.2 was responsible in committing the incident of killing life of the deceased.
21. There is, therefore, no sufficient evidence on record to prove that the defendant No.1 was 'driving the bus which hit to deceased, in rash and negligent manner and the said bus did not receive any damage while climbing on the footpath, as such, the plaintiff has not led any cogent, convincing and plausible evidence to prove that defendant No.1 was driving the said bus in rash and negligent manner. The issue is, therefore, answered in negative.
22. Issue Nos.2 and 3 ' In view of my findings on issue No.1, above, it has not been established that defendant No.1 was driving the bus recklessly, carelessly and in rash and negligent manner and was responsible in committing the alleged incident, as such, both these issues have not been proved by the plaintiff by leading any independent evidence. Issue No.4 ' The onus to prove this issue lies on the defendant to prove that the suit is barred under the provisions of Limitation Act. The plaintiffs have filed the present suit under section 1 of the Fatal Accidents Act, 1855, which provides filing of suit against the driver, who committed accident during the course of driving, though in the said accident the person has died or sustained injuries. In the present case the plaintiff claimed that because of fatal accident on 17-5-2002 committed by defendant No.1 the deceased Yaqoob Masih succumbed to the injuries and admittedly the present suit has been tiled for compensation/damages regarding untimely death of the deceased allegedly caused at the hands of defendant No.1 as such the suit filed under Fatal Accidents Act falls under Article 21 of the Limitation Act, which provides the limitation of one year from the date of death of the deceased. In the present case the incident allegedly took place on 17-5-2002 whereas the present suit has been presented on 30-6-2004, which shows that the suit has been presented much after the expiry of period of one year from the date of incident as such the suit filed by the plaintiff is hit under Article 21 of the Limitation Act. Issue is, therefore, answered in affirmative.
23. Issue No.5.
24. ' The plaintiffs have filed the present suit because of accidental death of deceased Yagoob Masih, as such plaintiffs have cause of action to file a suit against the defendants. Issue is, therefore, answered in affirmative. Issue No.6 ' The plaintiffs are the legal heirs of deceased Yacioob Masih. The affected persons have been summarized in section 1 of Fatal Accidents Act, 1855, which shows that every suit shall be for the benefit of the wife, husband, parents, and children, if any of the person whose death has been caused and shall be brought by and in the name of executants, administrator or representative of the person deceased. The section 1 ibid, therefore, includes the children and wife of the deceased who has been expired in fatal accident and the present suit has been filed by the children and wife of the deceased, as such the plaintiffs possess locus standi and legal character to file the suit against the defendants. The issue is, therefore answered accordingly.
25. ' The case-law relied upon by the learned counsel for the plaintiff in my humble opinion are distinguishable from the circumstances involved in the present case and are applicable. Issue No.7 On my findings on Issue Nos. 1, 2 and 3, I find that the plaintiffs have not succeeded to lead the evidence to implicate defendant No.1 and the bus of defendant No. 2 to be responsible for causing death of the deceased and the evidence led by the plaintiff is wholly sufficient to award them any compensation/damage against the defendants. The suit filed by the plaintiffs is hereby dismissed with no order as to costs.