' SYED MAHMOOD ALAM RIZVI, J.---This is yet another typical precedence which shows the agony of the aggrieved persons instead of looking after and provide bread to the citizens of Pakistan, the Government even after long trial filed this appeal, which is directed again the well reasoned judgment and decree, dated 10-10-2000 passed in Suit No,1168 of 1990.
2. The facts relevant for the disposal of the appeal are that the respondents Nos. 1 to 8, being legal heirs of the deceased Sakhi Muhammad, had filed a suit for recovery of Rs,13,00,000 as compensation under the provisions of Fatal Accidents Act, 1855. That their above mentioned late father aged about 45 years, when going on cycle, the driver of bus namely Muhammad Younus, who was driving the bus of KTC in a rash and negligent manner dashed the cycle on his side from behind with excessful high speed. As a result, the deceased died at the spot and his cycle also got damaged completely. An F.I.R. Under section 304-A, P.P.C. Bearing No,6 of 1990 was registered at P.S. Site, Karachi, the bus was impounded by the police and subsequently handed over to KTC.
3. The appellant No,2 and the driver were served through summons, the appellant No,2 did not file the written statement and only the 'defendant No,9 filed the written statement. That the appellant No,1, after being impleaded in the above suit, but did not file the written statement and later on the appellate No,1, after being debarred was declared ex parte. The respondent No,2, in their statement, denied that deceased had died unnatural death due to accident of particular bus.
4. From the pleadings of the parties following issues were framed:--
(i) Whether the death of the deceased Sakhi Muhammad was caused on account of rash, negligent and careless driving defendant No,2 driver/employee of defendant No,1 during their course of employment on 6-1-1990 while driving the Bus bearing No,841-083 of the defendant No,1?
(ii) Whether the defendants are liable jointly and severally to pay the compensation/damages as claimed by the plaintiffs?
(iii) Whether the plaintiffs are entitled to the extent of compensation as claimed in the suit?
(iv) Whether the plaintiffs are entitled to cost and interest as claimed?
(v) What should the decree be?
5. The respondents to prove their case examined P.W. Muhammad Azeern Bhatti, Excise Officer, who produced the registered ownership of bus bearing No,841-083, P.W.2 Muhammad Yousuf, Inspector of Police posted at SITE Police Station produced F.I.R., sketch memo. Of site and inspection, motor vehicle inspection, superdaginama of the bus and death certificate of the deceased, P.W.3 Shamsul Hassan, the respondent No,1, produced Domicile Certificate, F.I.R., death certificates issued by Abbasi Shaheed Hospital and KMC of the deceased and P.W.4 Saleem Khan, the eye-witness, who had given all the details regarding the incident in his presence. The appellants examined Manager Legal, who produced the authority letter and agreement between the appellants Nos.1 and 2 and closed the side.
6. The learned Single Judge, after careful scrutiny of evidence produced before him from the side of respondents, duly supported with documentary evidence, came to the conclusion that the accident had occurred due to negligence of the driver of the bus and thus the respondents Nos. 1 and 2 are jointly responsible to pay compensation to the respondents Nos.1 to 8. The learned Single Judge held as under:-- "It is a cardinal principle of evidence that omission to cross-examine a witness on a material part of his evidence gives rise to inference that trust of his statement has been accepted. Such unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence. Accordingly I answer these issues in affirmative."
' And thus decreed the suit of the plaintiff in the sum of Rs,9,00,000 against the defendants jointly and severally along with mark-up at the rate of 14% per annum from the date of filing the, suit till realization.
7. Mr. Saifullah, learned A.A.-G., had contended that the impugned judgment based on misreading of facts and liable to be set aside. The respondent No,9 had been acquitted from the criminal case, hence no case of rash and negligent driving had been proved.
8. Mr. Nasir Maqsood, the learned counsel of the respondents Nos. 1 to 8 had contended that the written statement filed by the respondent No,2 was not as per Order VIII Rules 3, 4 and 5, C.P.C., as facts were not specifically denied and further the most important witness of appellant was the driver of the bus (the respondent No,9) neither filed his written statement nor appeared in Court and even the witnesses were not properly cross-examined by the learned counsel for the appellants and no cogent evidence has been produced by the appellant to rebut the allegations of the respondents. Only one witness Manager Legal was examined for the appellants, who produced an authority letter and agreement between the appellants Nos.1 and 2. Therefore, evidence of the respondents was remained unchallenged. He further contended that the impugned judgment is well reasoned, hence appeal be dismissed.
9. We have heard Mr. Saifullah, learned Asst. Advocate General and Mr. Nasir Maqsood, learned counsel for the respondents Nos.1 to 8 and carefully perused the case.
10. The main defence of the defendant which though not appear to have been pleaded in the written statement but had been highlighted in the evidence is that the defendant No,2 has been acquitted by the trial Court from the criminal case. But it is settled principle of law that the proceeding and the fate of criminal proceeding has no relevance for the purpose of determination of the civil liability as in the civil cases, Judge of fact must find for the party in whose favour there was preponderance of probability, although evidence be not entirely free from doubt while in criminal cases the factum of incident should be proved beyond any reasonable doubt thus even the acquittal finding of guilt in the criminal case does not carry bearing for adjudication of civil cases in any manner whatsoever. This aspect was considered in the following judgments and no effect was drawn from the acquittal of driver in the criminal case:--
(i) 1988 CLC 1408 (P.1410) A, (ii) PLD 1971 Karachi 129 (P.136) B, (iii) PLD 1965 Karachi 127 (P.130) A, (iv)
1982 CLC 1120 (P.1122), (v) 1992 CLC 1228, (vi) 1981 CLC 1341, (vii) 1987 MLD 883, (viii) PLD 1980 Karachi 78 (P.83) A and (ix) PLD 1971 Karachi 64 (P.78).
11. The evidence of eye-witness of the case namely Saleem Khan had not been challenged and could not be shaken, the non-rebuttal of the respondents' evidence by the appellant and non- production of the driver in the witness-box are sufficient enough to saddle the appellant with the liability of the compensation. Thus, we affirm the view taken by the learned Single Judge in the suit that the appellants are jointly liable for payment of compensation to aggrieved family of the deceased, hence this appeal is dismissed.