' MUNIB AKHTAR, J.--- This is an appeal against the judgment and decree dated 7-5-2007 in Suit 1353 of 2003, which had been filed on the original side of this Court. The impugned judgment is reported as Master Agha Jan Ahmed and another v. American Life Insurance Company (Pakistan)
Limited 2007 CLC 1237. The suit was filed by the present respondents, both claiming as beneficiaries under two life-insurance policies that had been taken out by their father ("the Assured") with the appellant, which is an insurance company engaged in the life-insurance business. The two policies were identical in all material respects, and each required, inter alia, a payout of Rs,35,00,000 to the beneficiaries on the death of the Assured. Each policy however, had an exclusion clause which provided that if the Assured committed suicide within a period of two years from the date of the policy, then the beneficiaries would only be entitled to a return of the premiums that had been paid thereon, less any amount payable to the insurance company. The two policies were taken out on or about 15-8-2000, and the Assured died on 24-12-2001, that is within the two-year period stipulated in the exclusion clause. The insurance company's case was that the Assured had committed suicide and hence it was not liable to make payment to the beneficiaries to the extent claimed by them, i.e., a sum of Rs,35,00,000 on each policy. The learned single Judge concluded that the exclusion clause did not apply and that the insurance company had failed to prove that the Assured had committed suicide. She accordingly decreed the suit in the sum of Rs,70,00,000. Being aggrieved by this decision, the insurance company has preferred the instant appeal. The respondents have also filed cross-objections, claiming that in addition to the decretal amount, they were entitled to liquidated damages pursuant to section 118 of the Insurance Ordinance, 2000 on account of the late settlement of their claim. The liquidated damages were disallowed by the learned single Judge, both because learned counsel appearing for them did not press the point and because the learned Judge concluded that such damages were not payable "even otherwise".
2. It appears that the beneficiaries (who were minors at the time of the filing of the suit, and therefore sued through their mother) were the children of the Assured from his second marriage.
The Assured also had a family from his first marriage, which included at least two sons, both of whom were adults. It appears that the Assured had substantial landholdings near Sukkur. At the relevant time, the respondents were in Karachi, whereas the sons from the Assured's first marriage were at Sukkur. On 24-12-2001, the Assured travelled by air from Karachi to Sukkur, where he was received by his two sons from the first marriage. The three men went to their residence, and shortly after their arrival there, one of the sons came to the local police station to make a report. According to him, their father had been mentally disturbed for some time on account of family and domestic problems. On arrival at Sukkur, the Assured had continued discussing these matters with his two sons and once they arrived at their residence, and entered the house, the Assured loaded his pistol in front of the sons and threatened to kill himself. According to the son, he and his brother tried to snatch the pistol from their father's hand but before they could do so, he had put the pistol in his mouth and pressed the trigger. The bullet passed through' the mouth and exited from the back of his neck. The Assured fell to the ground and according to the son died in front of the two brotheRs, Thus according to the son his father had committed suicide, and he had come to the police station to make a report in this regard.
3. Section 174 of the Code of Criminal Procedure ("the Code") requires that if a suicide is reported to the police, the officer incharge of the police station concerned (or any other duly authorized police officer) must, in the manner as laid down in the section, investigate the matter and make a report on the apparent cause of death. This report is to be submitted to the concerned Magistrate.
Section 176 of the Code empowers the concerned Magistrate to make an inquiry into the matter, either instead of, or in addition to, the investigation to be carried out by the police under section
174. The Magistrate holding the inquiry is empowered to record evidence, and while conducting the inquiry, has all the powers as would be available to him when holding an inquiry into an offence.
4. It appears that the concerned police officer investigated the matter and submitted his report to the concerned Magistrate. According to his report, the death of the Assured was accidental.
However the Sessions Judge, Shikarpur directed the IIIrd Judicial Magistrate, Shikarpur to make an inquiry into the matter pursuant to section 176. The Magistrate recorded the statements of both the sons who had been with their father at the time of his death, the Medico-legal Officer who had conducted the post mortem, the police officer who had investigated the matter, and certain other persons as well. After considering all the evidence, the Magistrate concluded that the Assured had committed suicide and accordingly made his report on or about 12-4-2002. As will be seen below, this report provided the basis on which the insurance company (i.e., the appellant) refused to honour the claim made by the respondents on the ground that their father, the Assured, had committed suicide.
5. In the meanwhile, the respondents had filed their claim with the appellant under the two policies.
According to the respondents, the appellant sought certain information from them, which was duly provided but the appellant failed to make any payment on the insurance policies, and eventually by means of a letter dated 7-8-2003, refused to do so on the basis of the Magistrate's report according to which the Assured had committed suicide. It was in these circumstances that the respondents instituted the aforesaid Suit 1353 of 2003. The appellant filed its written statement after which issues were framed and evidence was recorded on commission. The respondents, as plaintiffs, produced two witnesses; one being their mother and the other being one Mr. Zaheer Ahmed Khan, who was a retired District and Sessions Judge. The appellant, as the defendant, examined only one witness, being its chief executive. All the witnesses produced a number of documents as part of their respective testimonies.
6. Although a number of issues were framed in the suit, the matter was argued before the learned single Judge, and also before us, on only two grounds, since learned counsel appearing for the parties were of the view that these grounds fully covered the matters in issue. These grounds were as follows (ground (a) comprising of two parts):
(a) whether, as a matter of law, an insurance company could (i) absolutely avoid payment on a life insurance policy if the assured committed suicide, or in any case (ii) avoid payment if there was an exclusion clause to this effect, and the assured committed suicide during the period of exclusion?
(b) whether, in the facts and circumstances of the present case, it had been proved that the Assured had committed suicide?
' The learned single Judge, in a judgment which is, if we may say so with the utmost respect, on occasion a bit difficult to follow, answered both these questions against the appellant and in favour of the respondents and decreed the suit in the manner aforesaid.
7. Learned counsel appearing for the appellant insurance company assailed the impugned judgment on the same points that had been taken by him before the learned single Judge. His case was that it was contrary to public policy for an insurance company to be liable on a life insurance policy if the assured committed suicide, since the beneficiaries would benefit from the assured's own wrong (ground (a)(i) above). He further submitted that in any case, both the policies in question contained an exclusion clause with specific reference to the Assured committing suicide within a period of two years, and the Assured (and his beneficiaries) were contractually bound by the terms thereof (ground (a)(ii) above). His case was that it had been conclusively established by the Magistrate's inquiry that the Assured had committed suicide and therefore, on any view of the matter, the appellant insurance company did not have any liability under the policies (except to the limited extent as stated in the exclusion clause). Accordingly, he prayed that the appeal be allowed.
8. Both the learned counsel appearing on behalf of the respondents supported the impugned judgment. Their case was that as a matter of law, it would be contrary to public policy if the beneficiaries of a life insurance policy were denied their claim thereunder on account of the suicide of the assured. Even if the exclusion clause were regarded as valid, the onus lay on the insurance company to prove that the facts and circumstances of the case came within its ambit. They submitted that the alleged suicide of the Assured had not been established. According to learned counsel, the Magistrate's report had no evidentiary value in civil proceedings, and it was not even a judicial order, but merely a finding of an administrative nature. They also submitted, on the basis of their cross-objections, that the learned single Judge had erred in confining the decretal amount only to the payout on the policies. According to them, the beneficiaries were also entitled to liquidated damages under section 118 of the Insurance Ordinance, 2000 and prayed that the decretal amount be varied and enhanced by the amount payable to the beneficiaries in terms thereof.
9. Since all the learned counsel referred essentially to the same decisions, we have refrained from noting them separately along with their submissions, and examine the case-law cited below. We have heard the learned counsel, examined the relevant record with their assistance and carefully considered the case law referred to and relied upon by them. Learned counsel for the appellant placed strong reliance on a decision of the House of Lords reported as Beresford v. Royal Insurance Company Ltd. [1938] 2 All ER 602. The policies in question (there were in all five policies involved) each contained a condition that if the assured committed suicide within one year of the issuance of the policy, the policy would be void against any person claiming thereunder. The policies were issued in 1925 and the assured committed suicide in 1934, i.e. After the period of exclusion. The House of Lords nonetheless held that the policies were unenforceable on account of the suicide. In his leading speech, Lord Atkin said:-- "I think that the principle is that a man is not to be allowed to have recourse to a court of justice to claim a benefit from his crime, whether under contract or under a gift. No doubt the rule pays regard to the fact that to hold otherwise would in some cases offer an inducement to crime, or remove a restraint to crime, and that its effect is to act as a deterrent to crime, but, apart from these considerations, the absolute rule is that the courts will not recognize chose to accruing to a criminal from his crime.
' The application of this principle to the present case is not difficult. Deliberate suicide, felo de se, is, and always has been, regarded in English law as a crime, though by the very nature of it the offender escapes personal punishment...
6 The remaining question is whether the principle applies where the criminal is dead and his personal representative is seeking to recover a benefit which takes shape only after his death. It must be remembered that the money becomes due, if at all, under an agreement made by the deceased during his life for the express purpose of benefiting his estate after his death. During his life, he had power of complete testamentary disposition over it. I cannot think the principle of public policy to be so narrow as not to include the increase of the criminal's estate amongst the benefits of which he is deprived by his crime. His executor or administrator claims as his representative, and, as his representative, falls under the same ban." (pg 607)
' It is pertinent to note that a little earlier in his speech, Lord Atkin had noted that in the absence of an express condition (i.e., stipulation or exclusion) relating to suicide, the policy would be unenforceable if the assured committed suicide. This followed simply as a matter of construction of the policy. On this point, Lord Atkin had said: "If there is no express reference to suicide in the policy, two results follow. In the first place, intentional suicide by a man of sound mind, which I will call sane suicide, ignoring the important question of the test of sanity, will prevent the representatives of the assured from recovering. On ordinary principles of insurance law, an assured cannot by his own deliberate act cause the event upon which the insurance money is payable. The insurers have not agreed to pay on that happening....
' On the other hand, the contract may, and often does, expressly deal with the event of suicide, and that whether sane or insane. It may provide that death arising at any time from suicide of either class is not covered by the policy. It may make the same stipulation in respect of suicide of either or both classes happening within a limited time from the inception of the policy. The rights given to the parties by the contract must be ascertained according to the ordinary rules of construction, and it is only after such ascertainment that the question of public policy arises....
' My Lords, I entertain no doubt that, on the true construction of this contract, the insurance company have agreed with the assured to pay to his executors or assigns on his death the sum assured, if he dies by his own hand, whether sane or insane, after the expiration of one year from the commencement of the assurance.... The contract between the parties has thus been ascertained. There now arises the question whether such a contract is enforceable in a court of law. In my opinion, it is not enforceable." (pp 604-5)
10. Learned counsel for the respondents on the other hand, relied on Scottish Union and National Insurance Co. v. N. Roushan Jehan Begum AIR 1945 Oudh 152. The policies in this case did not contain any express exclusion clause or condition regarding suicide and, as accepted by the insurance company at the time that the policies were issued, the obligation to make payment on the death of the assured included death by suicide. The assured committed suicide, and his beneficiary made a claim on the policies. The insurance company refused to make payment relying, in part, on the Beresford case (supra) to submit that suicide being contrary to public policy, the policies were unenforceable in the facts of the case. This defence was rejected, and the beneficiary's suit was decreed. The insurance company appealed to the Oudh High Court, but the appeal failed. The High Court held as follows:-- "Upon a reading of the criminal law of this country we are convinced that suicide is not an offence in India and is not against public policy by reason of its being a crime....
' Public policy in regard to suicide must... Be public policy determined by the sense in which the law and public opinion of the country in which it takes place understand it. Suicide in India under certain circumstances is approved, and we conceive that in a country like Japan, for example, suicide is considered to be highly meritorious in certain circumstances.... In India we would unhesitatingly hold that suicide is not against public policy as exhibited by the normal conception of society, as conceived by its laws. We must, therefore, overrule the contention of the learned counsel for the appellant on this behalf." (pp 159-60)
11. It will be seen that of the two questions of law that comprise ground (a) (see para 6 supra), the first question is broader in scope than the second one. In our view, since there is an exclusion clause involved in the present case and the death of the Assured took place during the period covered by the said clause, it would be more appropriate to first consider whether such a clause, as a matter of contract between the parties, is valid and binding upon them. If so, then it would not be necessary to examine and determine the first question of ground (a), since the matter would be covered by the second question. We would also note that the two cases relied upon by learned counsel for the parties are not, strictly speaking, applicable. In the Beresford case, the period of exclusion had expired, and in the Scottish Union case, there was no such clause at all. We would therefore confine our decision to a consideration of the second question, and leave open the resolution of the first question to a case in which it falls directly to be determined. In our view, it would not be contrary to public policy for a life insurance policy to include an exclusion clause of the nature presently under consideration. A policy being a contract between the insurance company and the assured, it is entirely open to them to settle whether, and if so how, any cover is to be provided in case the assured commits suicide. The matter was explained thus in a standard treatise on insurance law: "There is nothing... To prevent the insurers from expressing the policy to cover even sane suicide by the assured, on the one hand, or from excepting all suicide, sane or insane, from the risk on the other, provided they use apt words to do so.... Generally, no suicide exception clause is inserted in life policies.... When a suicide exception clause is inserted, there is a tendency for it to be limited so as to apply only for one or two years from the date of the policy." (Colinvaux's Law of Insurance, 7th ed., 1997, pp 337-8; internal citations omitted)
' In our view, in the present case, the exclusion clause validly formed part of the insurance policies under which the respondents claimed. Learned counsel for the respondents contended that even if valid, such a clause ought only to apply if it was established that the assured had taken out the policy with the intention of committing suicide (and thereby benefiting his assigns or beneficiaries).
In our view, the exception clause does not admit to any such interpretation or application. The language is clear and must, subject to the rules of interpreting and applying exclusion clauses to which we will presently refer, be applied as it stands. We turn therefore to examine the exception clause and to consider whether it stood established that the case at hand came within its scope and ambit.
12. The exclusion clause in both the policies was in identical terms and provided as follows:--- "Suicide: if the Insured commits suicide, while sane or insane, within two years from the Date of Issue or from the date of any reinstatement of the Policy, the Insurance under this Contract shall pay a sum equal to the premiums paid less any indebtedness under the Policy and less any partial surrenders and no more."
' Before proceeding further, it would be appropriate to set out the rules of interpretation that apply to exclusion clauses (by which we mean not merely those clauses whereby the insurance company excludes all liabilities, but also those by which its liability is limited in some form or another). In a recent decision reported as Trustees Executors Limited v QBE Insurance (International) Limited [20091 NZHC 1403, the New Zealand High Court stated the relevant rules in the following terms:--- "In particular in relation to exclusion clauses:---
(a) the onus of establishing that an exclusion clause applies is on the insurer;
(b) exclusion clauses should be narrowly construed;
(c) ambiguities are generally to be construed against the insurer if they have drafted the Policy."
(para.31)
' The Supreme Court of Canada has taken the same view, most recently in Progressive Homes Ltd. v Lombard General Insurance Company of Canada 2010 SCC 33, where after stating the general rules of interpretation applicable to insurance contracts, and citing its own earlier decisions, the Court observed as follows:--- "When these rules of construction fail to resolve the ambiguity, courts will construe the policy contra proferentem --- against the insurer.... One corollary of the contra proferentem rule is that coverage provisions are interpreted broadly, and exclusion clauses narrowly." (para 24; internal citations omitted)
' The Supreme Court observed that the onus lies on the insured to establish that the loss suffered by him is covered by the policy, but if he discharges this burden, then it is for the insurance company to show that the exclusion clause "clearly and unambiguously excludes coverage" (para 51). In a similar vein, the Supreme Court of Ireland, in Analog Devices BV and others v. Zurich Insurance Company and another 120051 IESC 12, cited with approval the following passage from General Principles of Insurance Law (6th ed., 1993) by E.R. Hardy Ivamy:--- "Since exceptions are inserted in the policy mainly for the purpose of exempting the insurers from liability for a loss which, but for the exception, would be covered by the policy, they are construed against the insurers with the utmost strictness. It is the duty of the insurers to except their liability in clear and unambiguous terms."
' Learned counsel for the respondents relied upon a Division Bench decision of this Court reported as Foremost Trading Company v Caledonian Insurance Company Ltd. And others PLD 1988 Kar. 131, where it was held as under:--- "... [I]t will suffice to observe that once an insured proves the factum that the loss is occasioned on account of risk covered by the Insurance Policy, .The burden is shifted on the Insurance Company to prove that the case is covered by an exception provided in the Insurance Policy or that there was a breach of condition on the part of the insured as to disentitle him to lodge a claim under the Insurance Policy. It may also be observed that the question of burden of proof depends on the facts of each case.... [I] f an insured files a suit for recovery of the loss occasioned on account of fire against the Insurance Company, the burden of proof that in fact the loss had occurred on account of fire would be on the insured and in case the Insurance Company wants to defeat the above claim on the ground that the fire was caused by the insured himself, the burden of proof as to the latter averment would be on the Insurance Company. However, the general principle of law of evidence is that if the onus of proof is not discharged the party on whom it lies fails." (pp 138- 9)
' In the present case, it is of course not in dispute that the Assured died on 24-12-2001. The event for which the life insurance policies were taken out had admittedly occurred. The onus therefore lay on the appellant to establish that the exclusion clause was applicable, limiting its liability to the extent therein provided. The clause is to be construed against the appellant "with the utmost strictness", and the appellant must establish "clearly and unambiguously" that the Assured's death came within its ambit, i.e., that the latter had committed suicide.
13. As already noted, the appellant's case is based squarely on the Magistrate's inquiry report under section 176 of the Code whereby he had concluded that the Assured had committed suicide.
Before examining this report, it is necessary to say a few words about the evidence tendered by the appellant in the suit, which was the testimony of its chief executive. In our view, this evidence was largely inadmissible as being nothing more than hearsay. The chief executive did not himself examine the matter of whether the Assured committed suicide. He did not (e.g.) visit Sukkur, or talk to any of the persons involved (such as the sons of the Assured from the first marriage). It appears (from the chief executive's cross-examination) that the appellant had outsourced the legwork of the investigation to a private firm, Business Resources Group (BRG). However, none of the relevant employees or officers of BRG were examined by the appellant. Indeed, it was specifically stated by the chief executive that the appellant was contractually bound not to produce them as witnesses.
However, that did not (and could not) absolve the appellant from requirements of. The "best evidence" rule embodied in Article 71 of the Qanun-e-Shahadat Order, 1984 ("QSO"). Anything reported by BRG or its staff to the appellant or its chief executive, and simply repeated by him in his evidence, was obviously inadmissible. The chief executive, both in his examination in chief (which was by affidavit) and his cross-examination, essentially relied on the Magistrate's report, and it is therefore this report which must now be considered. The first question that arises is as to the admissibility and relevance of the Magistrate's report. Before considering this aspect of the matter, it would be pertinent to keep in mind that the Magistrate had specifically noted that he had come to the conclusion that the Assured had committed suicide "believing the statements of his two sons who were natural eye witnesses to the incident and sons of the deceased. Informant Agha Meer Ahmed Pathan and his brother Agha Gul Ahmed have not stated in their statements before the Court that death of their father has been caused accidentally". It is significant that neither of the two sons were summoned by the appellant to testify, although they were the natural and crucial witnesses in the matter.
14. Articles 54 to 57 of the QSO lay down the rules for determining the relevancy, in any suit or trial, of previous judgments, orders or decrees. Articles 54 to 56 relate to certain specific categories of judgments, orders or decrees, and these are not relevant for present purposes. Article 57 lays down the general rule, and provides as follows (illustrations to the Article omitted):---
57. Judgments, etc., other than those mentioned in Articles 54 to 56, when relevant.--- Judgments, orders or decrees, other than those mentioned in Articles 54, 55 and 56 are irrelevant, unless the existence of such judgment order or decree is a fact in issue or is relevant under some other provision of this Order.
Thus, the general rule is that a previous judgment, order or decree is irrelevant unless either (i) the existence of such judgment, order or decree is itself a fact in issue, or (ii) the judgment, order or decree is relevant under some other provision of the QSO. Learned counsel for the respondents relied on Ghulam Rasool v. Muhammad Waris Bismil 1995 SCM R 500 to submit that the finding of a criminal court is not binding or relevant in a civil dispute. The Supreme Court had there observed as follows:--- "Suffice to observe that the finding of a criminal Court is not binding or even relevant for adjudicating a civil dispute before a Civil Court, which is to be decided on the basis of preponderance of evidence." (pg 505)
In fact, the general rule is that the judgment and conviction in a criminal case is not even relevant in another or subsequent criminal trial: Khushi Muhammad v. The State PLD 1986 SC 146, at para 12, where the Supreme Court, considering the equivalent provisions of the Evidence Act, 1872, and referring to "two well-established principles of law", observed as follows:--- "The first principle is that each case is to be judged upon its own facts established by the evidence led therein. The second principle involves the question of admissibly and relevancy of judgment as evidence in a case. Section 43 of the Evidence Act enacts the general rule that a judgment not inter partes is not relevant as proof of the particular point decided by it. The exceptions to this general rule are given in sections 41 and 42 of the Evidence Act which deal with judgments in rem or judgments relating to matters of a public nature. The effect of section 43 of the Evidence Act was considered by this Court in Muhammad Khurshid v. The State PLD 1963 SC 157 and it was held that a judgment was not admissible for the purpose of proving the reasons for the judgment or for using its findings of fact as evidence of those facts in another case. It was observed:-- ' 'The Evidence Act does not make findings arrived at on the evidence before the Court, in one case evidence of that fact in another case. Each case is to be judged upon its own facts established by the evidence led therein.' (pg. 147)
' In the present context, we would also refer to a Division Bench decision of this Court reported as Richard Benjamin Wheeler Haines v. Ismail and others 1980 PCr.LJ 1172. In this case, the appellant was going to work on his scooter, when he was knocked down by a car driven by the first respondent (who was the employee of the second respondent). The appellant sustained serious injuries. The first respondent was convicted for rash and negligent driving (an offence under section 297 PPC). The appellant sued the respondents in tort for causing him bodily harm and injury, and the suit was partially decreed. The appellant appealed, contending in part that "the learned trial Judge had not given due weight to the fact that respondent No,1, the driver had already been convicted in criminal Court for rash and negligent driving in connection with the accident". This contention was repelled. The witnesses who had testified in the criminal trial were not produced in the civil proceedings. The learned Division Bench observed as follows:--- "The burden of proof that defendant No,1 was driver in rash and negligent manner which resulted in the injuries for which damages are being claimed was on the appellant-plaintiff. It was for him to produce the best evidence available... In the aforesaid suit filed for damages it has independently to be proved that there was liability of the defendants for payment of the same. As already stated no proper evidence with regard to the negligence on the part of respondent No,1 was led and therefore the onus of proof was not satisfactorily discharged. The mere fact that the respondent No,1 was convicted for rash and negligent driving in a criminal Court does not in any way lessen the burden of proof on the part of the plaintiff specially as the witnesses appearing in the criminal proceedings were not considered suitable for examination for discharging the burden of proof." (pg 1175; para 11)
15. As is clear from the foregoing, the Magistrate's report (even if it was a judgment or order properly so called) was irrelevant for purposes of the suit filed by the respondents. The appellant could not simply produce the report and rely on it as proving that the Assured had committed suicide. For establishing this fact, the onus of which lay on the appellant, it had to properly lead evidence, which was admissible and relevant under the QSO. The material witnesses themselves had to appear and testify in the matter. This was manifestly not done. In this context, we would also note that the purpose of an investigation under section 174 or inquiry under section 176 of the Code is only to ensure that no offence has been committed C in connection with the death of a person; it is not to establish that a suicide has occurred. It is also to be noted that persons examined by the Magistrate in an inquiry under section 176 are not cross-examined. The importance of cross- examination (or the opportunity of such examination) cannot be overstated. It is the crucible in which the bare statement of a witness is turned into legally admissible evidence. In our view therefore, not merely was the Magistrate's report itself not admissible and irrelevant for the purposes of the suit, but whatever was recorded therein as the statements of the persons who appeared before the Magistrate was also inadmissible since those persons had not appeared in the suit as witnesses and their D statements had not been subjected to cross- examination. It follow's that the appellant failed to discharge the onus that lay on it with regard to proving that the Assured had committed suicide. The appellant could not therefore lawfully invoke the exclusion clause against the respondents, and hence it was liable to the latter in terms of the two policies to the full extent thereof.
16. Although the foregoing concludes the matter insofar as the appeal filed by the appellant is concerned, there is one point in relation to the evidence in the suit that requires comment. As noted above, one of the witnesses examined by the respondents was Mr. Zaheer Ahmed Khan, a retired District and Sessions Judge. His evidence was specifically referred to and relied upon by the learned single Judge. It appears from his testimony that Mr. Khan appeared as an expert on Pakistani law, in particular in relation to the Code. He gave an opinion with respect to the Magistrate's report (which opinion was produced by him) and he commented adversely on the manner in which the investigation and inquiry were conducted, and also opined as to whether the Assured committed suicide or not. In our view, Mr. Khan's evidence was wholly inadmissible and, with respect, the learned single Judge erred materially in referring to or relying on it. An expert can only give evidence in respect of foreign law. There is not, and cannot be, any "expert" on Pakistani law insofar as the courts of Pakistan are concerned: it is the court itself that is the expert. In Mosque known as Masjid Shahid Ganj and others v. Shiromani Gurdwara Parbandhak Committee and another AIR 1940 PC 116, the Privy Council cited with approval (in para 12) the following observations of Sulaiman, J., in Aziz Banu v. Muhammad Ibrahim Husain AIR 1925 All 720: "It is the duty of the Courts themselves to interpret the law of the land and to apply it and not to depend on the opinion of witnesses however learned they may be. It would be dangerous to delegate their duty to witnesses produced by either party. Foreign law, on the other hand, is a question of fact with which Courts in British India are not supposed to be conversant. Opinions of experts on foreign law are therefore allowed to be admitted." (para 47)
17. We turn now to consider the respondents' cross objections in relation to liquidated damages.
Subsection (1) of section 118 of the Insurance Ordinance, 2000 ("the Ordinance"), insofar as is presently relevant, provides as follows:---
118. Payment of liquidated damages on late settlement of claims.--- (1) It shall be an implied term of every contract of insurance that where payment on a policy issued by an insurer becomes due and the person entitled thereto has complied with all the requirements, including the filing of complete papers, for claiming the payment, the insurer shall, if he fails to make the payment within a period of ninety days from the date on which the payment becomes due or the date on which the claimant complies with the requirements, whichever is later, pay as liquidated damages a sum calculated in the manner as specified in subsection (2) on the amount so payable unless he proves that such failure was due to circumstances beyond his control.
' It is clear that subsection (1), by mandate of law, implies a term in every insurance contract with regard to the payment of liquidated damages in terms as stated therein. Now it appears that the Ordinance was promulgated on 19-8-2000, whereas the two policies presently under consideration were issued on or about 15-8-2000, i.e., just a few days prior to the coming into force of the Ordinance. There is nothing in the Ordinance to suggest that section 118 would take retrospective effect, i.e., be applicable to policies issued prior to 19-8-2000. It is well-settled that the terms of a contract cannot be varied subsequently by statute unless the relevant statutory provisions specifically so provide. In our view therefore, the provisions of section 118, and the term implied by law as provided therein, do not apply to contracts of insurance already entered into prior to the coming into force of the Ordinance. (We say nothing concerning a contract of insurance which was entered into prior to the promulgation of the Ordinance, but F subsequently lapsed and was reinstated after the coming into force thereof. Different considerations may apply in such a case, but that is not the situation at hand.) The claim for liquidated damages in terms of section 118 cannot therefore be sustained in the facts and circumstances of the present case, and the cross objections must be repelled.
18. In view of what has been stated hereinabove, both the appeal and the cross-objections are hereby dismissed. There will be no order as to costs.