IJAZ AHMAD, J.---The appellants-plaintiffs instituted a suit for recovery of compensation/damages against the respondent for the damage sustained by them on account of a blast at the Military Ammunition Depot known as Ojhri Camp, Rawalpindi, on 10-4-1988. The claim of the appellants-plaintiffs was as follows:--
(i) Compensation for Rs,20,00,000 the loss on account of destruction of the two houses of plaintiffs Nos.1 and 6.
(ii) Compensation for Rs,10,00,000 the loss on account of destruction/ burning of the house-hold effects etc. of plaintiffs Nos. 1 to 6.
(iii) Compensation for Rs,00,24,000 the loss suffered by plaintiff No,1 on account of payment of rent of house No,20-CA Rs,2000 for the period from April, 1988 up to date.
(iv) Compensation for Rs,5,00,000 the disfigurement of the face of plaintiff No,2.
(v) Compensation on Rs,5,00,000 account of mental derangement and injuries caused to plaintiff No,3.
(vi) Compensation on Rs,3,00,000 account of injuries suffered by the minor daughter of plaintiff No, 1.
(vii) Compensation on Rs,5,00,000 account of mental torture and bodily pain suffered by the plaintiffs.
It totalled Rs,48,24,000. It was averred that the appellants/plaintiffs Nos.1 and 6 jointly owned plot measuring 1 Kanal in Dhok Dadan Khan Murree Road, Rawalpindi. Both the said appellants/plaintiffs constructed houses thereupon after obtaining the sanction of the building plans from the Municipal Committee, Rawalpindi. In the vicinity of the said houses, there existed and still exists, the Military Ammunition Depot known as Ojhri Camp, Rawalpindi, where the big bang occurred. The bombs, missile, rockets and other sophisticated ammunition dumped there escaped exploded, propelled and hit the houses of the said appellants/plaintiffs and the houses in the adjoining localities in Rawalpindi and Islamabad. Their houses were razed to ground. Their valueable household articles were either reduced to trash or burnt to ashes. The appellants/ plaintiffs Nos.2 to 5, who were at home at the relevant time sustained multiple injuries mentioned in the plaint. They had to flee away in order to avoid further risks. The appellants/plaintiffs remained hospitalized.
Some of them had to undergo surgical treatment and plastic surgery abroad. Appellant/plaintiff No,3 was mentally deranged. The respondent/defendant accepting its liability on account of its negligence and carelessness announced to pay compensation to the affectees. The respondent/defendant assessed the compensation without taking into consideration the gravity of its negligence and the extent of the injuries and damage sustained by the appellants/plaintiffs.
The appellant/plaintiff No,1 was paid Rs,403,000 and appellant/plaintiff No,6 was paid Rs,3,87,000 as compensation on account of destruction to their houses. It was accepted by them under protest. It was averred that the Ojhri Camp was originally built before the independence of India and Pakistan by the British Government as a Training Centre for the armed forces, and continued to be used for the same purposes even after the creation of Pakistan. In the late seventies, the site was used as an arsenal for sophisticated military weapons. As the site was originally purported to be used as a Training Camp and only traditional weaponry was kept therein, therefore, the precautionary devices were also of primitive and limited nature. In spite of voicing out the apprehensions in the Parliament, the respondent defendant did not remove the Ojhri Camp from the populated area which by passage of time was surrounded by residential colonies; gross negligence was alleged against the defendant. The respondent/defendant contested the suit and filed written statement. It was averred that the compensation offered by the respondent/ defendant had been accepted voluntarily by the appellants plaintiffs, therefore, they were not entitled to lay any further claim. It was alleged that the appellants/ plaintiffs, had chosen to live in the vicinity of Depot and had thus invited the trouble. The knowledge of risk to life and property by possible explosion and negligence on the part of the appellants/plaintiffs were denied. The compensation paid by the respondent/defendant was labelled, a mercy grant and the explosion, an unavoidable episode. The learned trial Court framed the following issues:--
(1) Whether the suit is not maintainable in its present form as alleged in preliminary objection as raised in the written statement ?OPD.
(2) Whether the plaintiff is entitled to recover the disputed amount as alleged in the plaint ?OPP.
(3) Relief.
The learned trial Court decided Issue No,2 against the appellants/plaintiffs and dismissed the suit.
2. It is contended by the learned counsel for the appellants/plaintiffs that the Doctrine of Strict Liability laid down in case "Rylands v. Fletcher" cited as (1868 LR 3HL 330), is fully attracted to the facts of the present case; that the respondent/ defendant had dumped ammunition of highly dangerous character at the site knowing that if it escaped or exploded, it was by its nature capable of brining unprecedented holocaust in the adjoining area; that the evidence produced by the respondent/defendant was not in consonance with its pleadings; that the appellants/plaintiffs have successfully proved the damage as well as the injuries sustained by the respondent/defendant; that the respondent/defendant had failed to provide the precautionary measures matching the lethal weapons kept at the site; that the precautionary measures and devices were not improved to match the increase in the potential of the weapons to bring the catastrophe and thus is liable to pay the damages on account of its negligence.
3. On the other hand, the learned counsel appearing on behalf of the respondent/defendant contends that the appellants/plaintiffs by voluntarily accept-ing the compensation paid by the respondent/ defendant were estopped to bring the instant suit; that the appellants/plaintiffs by choosing to sit on the volcano could not claim the damages brought by its lava and the ashes; that the knowledge of possible havoc resulting from any future incident or the negligence to cope with such a situation could not be attributed to the respondent/ defendant and all the necessary pre-cautions were taken to ward off any such happening.
4. We have heard the learned counsel' for the parties and have also gone through the record.
5. The appellants/plaintiffs in their plaint have narrated the extent and furnished the details of the loss on account of damage to their property, household articles and the physical injuries sustained by them. They have also averred that the compensation was not determined after consultation with the affectees and that they had accepted the same under protest and that the respondent/defendant had the knowledge that the ammunitions and the weapons kept at the site were quite sophisticated highly lethal and could cause the havoc to the lives and the property but they had not removed the same from the populated area. The respondent/defendant had not taken the precautions and had not improved the precautionary measures matching the lethalness of the weapons and its increased potential to cause the damage. The appellant/plaintiff has appeared as P.W.4 and has also produced P.W.1 to P.W.3 to prove the extent of damage to the properly, the household articles and to the persons of appellants/plaintiffs. He has also produced documentary evidence to substantiate his stand. Exh.P-59 is the official report of the Senate.
Exh.P.60, is that of the National Assembly. Both these documents reveal that the people's representatives had voiced out against the existence of the arsenal in the populated areas. The respondent paid no heed to it. On the other hand, the respondent/ defendant denies its knowledge about the damage the ammunition could cause. He also denies any omissions and disowns negligence on his part to take the precautions and its liability to pay the damages. It is asserted that all the possible precautions had been taken and the incident is an act of God. The questions that need determination and resolution are:--
(i) whether by acceptance of damages paid by the respondent/defendant, the plaintiffs were disentitled to claim any further compensation;
(ii) whether the respondent/defendant had the knowledge of the extent and potential of the weapons to cause catastrophe;
(iii) whether it had taken any precautions to avoid any such situation;
(iv) whether the measures if already existed, had been improved to match the increase in the lethalness of the weapons; and,
(v) whether negligence undergone by the respondent/defendant was such that could entail its liability to pay the damages on the respondent/ defendant and which of the party was responsible for using the vicinity of Ojhri Camp for inhabitation.
(I) There is no doubt that at the time of any catastrophe or calamity, whether Aitbe through an explosion in question or hurricane or earthquake, the extent of damages sustained and the quantum of compensation is fixed unilaterally by the State functionaries. The affectees standing at the verge of peril have no option but to accept the assessment of the damage and the quantum of compensation. The acceptance of the peanut compensation does not disentitle the effectees to institute a suit for proper compensation.
(II) Every passing day increases the potential of the weapons to cause damage and bring catastrophe to the properties and the lives of the people. This increase in the potential of the ammunition is not supposed to be in the Knowledge of an individual, for the reason that this branch of, knowledge is sophisticated and complicated one and is not in the access of every person and the public does not have a chance to learn as to what kind of weapons are stored in such Depots. In such situation, the relevant knowledge only rests with the respondent/ defendant and the whole responsibility for taking the precautions could only be cast on it. The respondent/defendant has set up a plea that it had no knowledge about the potential of the weapons stored and the prospective destruction which the same might cause and thus has tried to absolve itself from the liability to pay the compensation. The onus to prove such a plea lies heavily on the respondent/ defendant. It has failed to produce the evidence which might help him in absolving itself from the said liability. Reliance is placed on (1994 CLC, 1903) (Karachi)) titled S. Iqbal Hussain Jaffery v. Karachi Electric Supply Company.
(III)The swelling of the urban population and the use of the lands in the vicinity of strategic sites and ammonites Despots etc., is to be checked by the State. The relationship of a State and its citizens in such like situation is that of chaperon and a minor child. This is why the State is called Mather-e-Watan. It has to be responsible even for the delinquencies and the wrongs of its citizens.
The government has to check the horizontal and vertical growth of the buildings and construction of houses at the sites vulnerable to floods, volcanic eruptions and munition explosions and thus prone to high risks. This cannot be done by the citizens individually. The appellants/ plaintiffs cannot be held disentitled for the compensation on account of the damages and the injuries sustained by them for choosing to habit in the vicinity of the site in question.
(IV) In our view, the respondent/ defendant was not acting with reasonable care and caution while multiplying the storage of ammunition and while replacing the traditional weaponry with sophisticated lethal weapons. Despite all the safety precautions that might have been adopted but which the respondent/defendant refuses to disclose on the pretext of secrecy and security, the storage of large quantity of ammunition in a conservative method was fraught with considerable risk. This should have been in the knowledge of those responsible for dumping the ammunition which in the instant case is respondent/ defendant.
(V) The respondent/defendant when indulged in the Afghan war had to be more conscious prepared and would have stood on its toes. The respondent/defendant had not been able to prove its readiness to cope with such like situation which could only be in his exclusive knowledge. Even if there was a possibility of sabotage activity in the incident, the responsibility to fight it was that of the respondent/ defendant. The careering, chaos and negligence shown by the respondent/defendant exhibits the absence of the readiness of respondent defendant to cope with the situation and the negligence it is guilty of. Although in criminal law the degree of negligence has to be of a higher magnitude, yet simple lack of care may incur civil liability. This is how Lord Atkin's view in Andrews v. Director of Public Prosecutions (1937) AC 576, has to be construed in a reverse direction. The taking of precautions and exercise of due diligence involves the duties of setting up an efficient system of the avoidance from damage and injuries to the persons and properties of the citizens that in the instant case, the respondent defendant had not adequately performed and if performed they have been adamant to bring on the. record on the pretext, of security and secrecy not acceptable to law in the instant case. The Federation is always heavily burdened with the duty to provide safety measures in every commercial, fiscal and strategic activity undertaken by them. Reliance is placed on (1994 CLC 1903(Karachi)) titled S.Iqbal Hussain Jaffery v. Karachi Electric Supply Company. In the instant case, the State has miserably failed to provide such safety measures. In our view, the learned trial Court has miserably failed to appreciate the evidence and the law while deciding Issue No,2 against the appellants/ plaintiffs .
6. The quantum of the compensation is yet to be ascertained. The evidence regarding the claim at Rs,500,000 as compensation on account of Mental torture and physical pain is insufficient and vague. The same cannot be granted. The amount of Rs ,403,000 and 3,87,900 admittedly already received by the appellants Nos.1 and 6 respectively as compensation for the damage caused to their houses has to be deducted from the amount claimed in the suit. They are thus entitled to a decree for Rs,3,534,000
7. For what has be discussed above, the impugned judgment and decree dated 10-2-2000, passed by the learned Civil Judge 1st Class, Rawalpindi, is set aside. The suit of the appellants/plaintiffs is decreed for Rs,3,534,000. This appeal stands accepted.