1. KHILJI ARIF HUSSAIN, J.---Being aggrieved and dissatisfied by the judgment and decree passed by the learned Single Judge of this Court in Suit No,264 of 1995, decreeing the suit of the respondents, filed under Fatal Accidents Act, the appellant preferred this appeal.
2. ' Brief facts for the purpose of deciding the appeal are that on 16-6-1994 at 1700 hours appellant No,3 during the course of the employment of appellants Nos. 1 and 2, while driving Truck No,062- 656, when reached opposite Colony Graveyard, the truck due to rash and negligent driving became out of control of appellant No,3, mounted on the middle footpath and even after crossing the same, went on the other track meant for movement of traffic from Malir to city due to over speed collided against Taxi No,JL-8085. Suzuki No,CL-0242, car No,M-4479 and another Car No,160-
483. Consequently all the vehicles were damaged and five persons, i.e, taxi driver Masood Khan, passengers of taxi Huma Najum and Husina Khan (respondent's predecessor in interest). Suzuki driver and one companion in the Suzuki, namely, Shaikh Muhammad Shabbir and Ejaz-ur-Rahman died due to collision.
3. ' The respondent filed suit within time, seeking the decree in the sum of Rs, 3,500,000 against the appellants. The appellants filed written statement and on the basis of the pleadings, issues were framed and after recording the evidence suit was decreed in the sum of Rs,3,444,000 with markup upon the decretal amount at the rate of 6% per annum from the date of judgment, which order has been impugned through this appeal.
4. ' Mr. Sohail Hayat Khan Rana, learned counsel for appellant No,2, argued that the only eye witness of the accident was Muhammad Munir, who was sitting next to appellant No,3, driver, who also died due to the accident and in his evidence he stated that the driver was driving the truck at a normal speed and in careful manner but the same went out of the control and caused the terrific incident.
5. Learned counsel further argued that there was no negligence on the part of the truck driver and as such respondent's suit is liable to be dismissed.
6. Mr. S. Tariq Ali, learned Federal Counsel for the respondents, although undertook to file written synopsis within three days, but till date (21-5-2009) failed to file the same.
7. ' On the other hand, Mr. Nasir Maqsood, learned counsel for the respondent, argued that sufficient evidence is available on record to establish that at the time of accident, the driver was driving the truck in question in a rash and negligent manner, which caused the accident, resulting that five persons died at the spot.
8. ' We have taken into consideration respective arguments advanced by the learned counsel for the parties and perused the record. Facts in some details have already been narrated hereinabove and need not be reproduced. The learned Single Judge in the order impugned discussed in detail evidence of all the witnesses produced by the respective parties. From the evidence on record it appears that apart from the appellants' witness, namely, Muhammad Munir, one Muhammad Arshad was also examined as P.W.3, who was eye-witness of the incident. In the affidavit-in- evidence, filed by the said witness, he stated that the driver of the army truck appears to have lost the control balance due to reckless and excessively high speed and mounted on the central island footpath and crossed over the said island and came on the other track meant for movement of the traffic from city to Karachi, where his Suzuki was moving and was dashed against the Taxi bearing No,JM,8085 and other vehicles. The witness categorically denied the suggestion that the army truck had hit against the tree, as alleged by the appellant. The learned Judge also discussed, evidence of appellants' witness Muhammad Munir, upon whose evidence the learned counsel for the appellants relied upon. The said witness deposed only to the extent that before the accident appellant No,3 had told him that the vehicle had gone out of his control, whereupon he had suggested him to take the vehicle on the side of the road and soon after the vehicle mounted the median and hit- the tree as a result of which he got injured and became unconscious. The witness of the appellants in his statement did not deny that the accident took place due to rash and negligent driving of the truck. The occurrence of the accident and death of five persons resulted due to the accident has not been denied by the parties. In our view the burden heavily lies upon the appellants to prove that the accident, which resulted in death of five innocent persons, was not resulted due to their negligence, but due to negligence of the deceased that the accident had occurred. The appellants miserably failed to discharged the burden that accident was not caused due to the negligence of appellant No,3.
9. The doctrine of "res ipsa loquitur" attracted to the facts of the case. The appellants failed to bring on record any tangible evidence to show that the accident was not caused due to their negligence.
10. ' In the case of Akhtar Ali Khan v. Islamic Republic of Pakistan (2007 M LD 851), it was held as under:- - "The defendant has not only failed to examine defendant No,2, truck driver, but further failed to produce any evidence that they were properly maintaining the truck in question and accident was caused due to sudden failure of the brake. The defendant in discharge of his duties has to operate number of garbage truck to ply on roads daily and it is their duty that before allowing any vehicle to leave station not only check engine oil, brake oil, etc., but also to satisfy that the same is fit for plying on road, as any vehicle on road not lit for plying can endanger the life of citizen. The duty to take reasonable care increases manifold when State engaged in the business either himself or through corporation or companies owned by the State as under Article 9 of the Constitution of the Islamic Republic of Pakistan it is the duty of the State not to deprive the life of a person except in accordance with law."
11. ' In the case of Pakistan v. Haji Abdul Razzaq (2005 SCM R 587), the Hon'ble Supreme Court, after discussing the merits of the case, refused to grant leave while applying the principle "res ipsa loquitur", i.e, things speak themselves.
12. For the foregoing reasons, listed appeal has no merits and is accordingly dismissed.