AQEEL AHMED ABBASI, J. Instant High Court Appeal has been filed against judgment dated 23.06.2017 and decree dated 10.07.2017 passed by the learned Single Judge of this Court in Suit No.74 of 1991, whereby, the said suit filed by the respondent No.1 against the appellants for the recovery of Rs.50,00,000/- under the Fatal Accidents Act, 1855, has been decreed against the appellants jointly and severally along with 10% markup from the date of institution of the suit till realization of the amount.
2. The appellants Nos.1 to 6 are represented by Syed Aley Maqbool Rizvi, Addl. Advocate-General, Sindh along with Mr. Jawwad Dero, Addl. A.G. Sindh and Mr. Ziauddin Junejo, Asst. A.G. Sindh, and Appellants Nos. 8, 9, 12 and 13 are represented by Mr. Anwar Alam Subhani, Advocate, whereas, Mr. Nasir Maqsood, Advocate along with Mr. Qaiser Jawed, Advocate is representing the respondent.
Syed Aley Maqbool Rizvi, Addl. Advocate-General, Sindh, has vehemently argued that the suit filed by the respondent under the provisions of Fatal Accidents Act, 1855 was not maintainable, as according to him, the cause of death of deceased Muhammad Shakeel was not because of any accident and/or due to negligence of the appellants, therefore, not covered under the Fatal Accidents Act, 1855. According to learned Addl. Advocate-General, deceased Muhammad Shakeel was lawfully arrested by the police in a criminal case, however, during police custody, he died due to natural death. It has been further argued by the learned Addl. Advocate-General Sindh that as per medical report of the deceased, there were no marks of torture, nor in the medical report, it was suggested that the cause of death of the deceased was on account of torture and maltreatment by the police, whereas, a Criminal Complaint No.419 of 1990 was also registered against the appellants for alleged murder of the deceased, in which, the appellants have been acquitted and as per his information, no acquittal appeal has been filed, therefore, all the allegations levelled against the appellants relatable to the death of deceased Muhammad Shakeel stand falsified pursuant to the judgment passed in the criminal case. It has been further contended by the learned Addl. Advocate-General Sindh that the learned Single Judge while passing impugned judgment and decree has failed to take into consideration the above factual and legal position as emerged in the instant case, nor appreciated that in the absence of any evidence or material, which could establish that the cause of death of the deceased, namely, Muhammad Shakeel is directly attributable to the appellants, the appellant could not be held responsible for his death, merely for the reason that the deceased was in their custody, whereas, according to learned Addl.
A.G. Sindh, the deceased Shakeel was otherwise in lawful custody of the police pursuant to an FIR registered under Section 13-D. According to learned Addl. A.G. Sindh, the provisions of Fatal Accidents Act, 1855, are not attracted in the instant case, therefore, the suit filed by the respondent and the relief claimed therein for recovery of an amount towards compensation in the sum of Rs.50,00,000/- was misconceived and not maintainable. Learned Addl. A.G. Sindh also expressed his serious concern on the findings as recorded by the learned Single Judge while holding that death of the deceased Muhammad Shakeel in police custody is covered under Fatal Accidents Act, 1855, and if, such judgment and decree is upheld, than every custodial death will attract the provisions of the Fatal Accidents Act, 1855, and in each and every case, the police officials will be held responsible and liable to pay the amount of compensation to the legal heirs of the deceased, who may die in police custody even due to natural death. Per learned Addl. Advocate-General, it will render the relevant provisions of Pakistan Penal Code, Criminal Procedure Code as well as the provisions of Police Act relating to the arrest of an accused person, as redundant and inoperative on the one hand, but will also have an adverse effect on the functioning of the police and other law enforcement agencies to prevent and curb the crime in the society by making arrest of the accused person(s) required in a cognizable offences. While concluding his arguments, the learned Addl. Advocate-General Sindh has submitted that if, this Hon'ble Court is not convinced, with the above arguments advanced on behalf of the appellants, then the amount of compensation directed by the learned Single Judge to be paid to the legal heirs of the deceased, namely, Muhammad Shakeel may be reduced, and the said amount of compensation may not be treated as an amount under the Fatal Accidents Act, 1855, and may be given to the respondent on compassionate grounds, as according to learned Addl. Advocate-General Sindh, if the impugned judgment and decree is upheld, it may constitute a precedent for making payment of compensation in all the cases of custodial death, irrespective of the fact that such death is attributable to the act, omission or negligence on the part of the police or any official of law enforcement agencies. It has been prayed that either the impugned judgment and decree may be set aside or alternatively, modified in the aforesaid terms. Mr. Anwer Alam Subhani, Advocate adopted the arguments of learned Addl. Advocate-General, Sindh.
3. Conversely, Mr. Nasir Maqsood, learned counsel appearing for the respondent, has vehemently opposed the contention of the learned Addl. Advocate-General, Sindh and controverted the arguments relating to maintainability of the suit as well as on the merits of the case, and submitted that in view of un-rebutted facts relating to illegal arrest of the deceased, namely, Muhammad Shakeel by the CIA officials, and his death in police custody because of torture and maltreatment by the police the case falls within the purview of Fatal Accidents Act, 1855. Per learned Counsel, the record shows that appellants committed criminal negligence for having failed to provide medical treatment to the deceased by immediately taking him to the nearby hospital when his condition started to get worse on account of torture by the Police officials at CIA Centre. Learned counsel for the respondent submitted that objection raised by the learned Addl. Advocate-General, Sindh with regard to maintainability of the suit and limitation in terms of Section 42 of the Police Act, 1861, under the facts and circumstances of the instant case. is totally misconceived and baseless, as according to learned counsel, the custodial death of deceased, namely, Muhammad Shakeel, who was unlawfully arrested and detained by the CIA officials and was brutally tortured while hanging him with rod from the roof when his hands were tied-up, which resulted in his death, is fully covered under the Fatal Accidents Act, 1855. Learned counsel for the respondent, after having read out the relevant portions of the impugned judgment passed by the learned Single Judge in the instant case, submitted that the learned Single Judge, after having taken stock of all the relevant facts and the evidence available on record, including the Postmortem Report dated 26.04.1990 prepared by Dr. Khalid Ansari, MLO of Jinnah Postgraduate Medical Centres Judicial Inquiry Report as well as ocular evidence produced by the respondent, after framing the issues and recording the evidence of both the parties, has been pleased to pass judgment and decree after dealing with all the legal objections, as raised by the learned Addl. Advocate-General on behalf of appellants in the instant High Court Appeal, relating to maintainability of the suit and also the applicability of the provisions of the Fatal Accidents Act, 1855, while placing reliance on numbers of judgments of the Superior Courts. According to the learned counsel for respondent, the respondent has successfully discharged the onus to prove the fact that the deceased Muhammad Shakeel has died because of brutal torture by the CIA officials while in police custody. According to learned Counsel, Section 1 of the Fatal Accidents Act, 1855, provides that whenever the death of a person shall be caused by wrongful act, neglect or default, and the neglect or default is such as would (if death had not ensued), entitled the party injured to maintain an action and to recover damages in respect thereof, the party who would have been liable if death had not ensued shall lie liable to an action of suit for damages, notwithstanding the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. According to learned counsel for the respondent, Section ' 1' further provides that every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative or the person deceased; and in every such action the Court may give such damages as it may think, proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the cost not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct. It has been further contended by the learned counsel for respondent that the contentions of the learned Addl. Advocate-General, Sindh that since the appellants have been acquitted in the criminal case on the same charges, therefore, the suit for recovery of an amount of Rs.50,00,000/- towards compensation/damages filed under the Fatal Accidents Act, 1855, was also liable to be dismissed, is misconceived, as according to learned counsel for the respondent, the criminal proceedings or the decision therein, has no bearing, or effect on the civil proceedings for the simple reason that there are different parameters for determination of criminal and civil liability. Moreover, according to learned counsel for the respondent, the scope of criminal case was to the extent of punish accused if charge is established beyond reasonable doubt, whereas, scope of civil suit seeking damages or compensation under Fatal Accidents Act, 1855, relates to determination of civil liability in terms of money. Moreover, according to learned Counsel, nothing was brought in evidence before the learned Single Judge in this regard in the above suit for consideration or decision thereon by the appellants, therefore, this argument at this stage of the proceedings in the instant High Court Appeal is otherwise misconceived and of no relevance. Learned counsel for the respondent further submitted that the appellants have miserably failed to dislodge the claim of the respondent in the suit, nor any evidence or material was produced, which could otherwise absolve the appellants from their joint liability to make the payment of compensation/damages to the legal heirs of the deceased, namely, Muhammad Shakeel, who has admittedly died in police custody, whereas, as per evidence produced in the shape of ocular and medical reports, cause of his death was brutal torture by the police officials. In support of his contention, learned counsel for the respondent has placed reliance on the following reported cases: -
1. Samiullah Khan Marwat v. Government of Pakistan [2003 SCMR 1140];
2. Punjab Road Transport Corporation v. Zahida Afzal [2006 SCMR 207];
3. Karachi Transport Corporation v. Muhammad Hanif [2009 SCMR 1005];
4. Islamic Republic of Pakistan Through Ministry of Railways v. Abdul Wahid [2011 SCMR 1836];
5. Government of NWFP through Collector, Mardan and others v. Saidur Rahman [2004 CLC PESHAWAR 1682];
6. Rahamat Ali v. Emperor [AIR 1927 Lahore 634];
7. Hira Das v. Shiromani Gurdwara Prabandhak Committee and others [AIR 1932 Lahore 147];
8. Amar Singh v. Bhagwan Das and others [AIR 1933 Lahore 770];
9. Joshi Ram Krishan v. Mst. Bukmini Bai [AIR (36) 1949 Allahabad 449].
4. We have heard the learned counsel for the parties, perused the record with their assistance and have also gone through with the impugned judgment passed by the learned Single Judge as well as the evidence produced by the parties in the suit. Perusal of the pleadings of the Suit No.74/1991 tiled for the recovery of an amount of Rs.50,00,000/- under the Fatal Accidents Act, 1855 by the respondent, namely. Muhammad Sarwar, who is father of the deceased Muhammad Shakeel shows that the deceased Muhammad Shakeel died at C.I.A. Centre on 25.04.1990 while in police custody, which fact has not been disputed by the appellants either in the written-statement filed in the suit or before this Court in the instant High Court Appeal, however, there seems dispute with regard to the cause of death, which according to the respondent, was on account of brutal torture and the injuries inflicted by the police officials upon the deceased Muhammad Shakeel, during police custody, whereas, according to the appellants, deceased died because of natural death, whereas, the injuries found on the body of deceased, as per Postmortem Report, were not so fatal, which resulted in the death of Muhammad Shakeel. It has been further noted that the amount of Rs.50,00,000/- as claimed by the respondent in the suit towards compensation/damages was neither seriously disputed by the appellants before the learned Single Judge in the above suit, nor any such objection has been raised by the learned Addl. Advocate-General, Sindh, Syed Aley Maqbool Rizvi or Mr. Anwar Alam Subhani, learned counsel for the appellants. However, the learned counsel representing the appellants have mainly raised objection with regard to maintainability of the suit under the Fatal Accidents Act, 1855 on the ground that the custodial death of an accused person is not covered under the definition of "actionable wrong" as provided under Section 1 of the Fatal Accidents Act, 1855. The learned Single Judge of this Court, keeping in view the pleadings in the suit, on 22.12.1991 formulated following issues:-
1. Whether the deceased Ch. Muhammad Shakeel died a natural death or his death was caused on account of wrongful act, of assault and torture in CIA Centre as by Defendants Nos.7 to 14 on 26.04.1990 while in custody of Defendants Nos. 7 to 14?
2. Whether the Defendants are liable to pay the damages / compensation to the Plaintiff and another legal heir jointly and severally? If so, to what extent?
3. Whether the Plaintiff is entitled to cost and interest / profit, as claimed?
4. What other relief or reliefs this Hon'ble Court may deem fit?
5. After recording the evidence of the parties, the Issue No.1, as referred to hereinabove, has been decided by the learned Single Judge while holding that the deceased Ch. Muhammad Shakeel did not die a natural death, but the same was caused by the wrongful act of the appellants [Defendants Nos. 7 to 141, when the above deceased person was in their custody on 25.04.1990 and expired at midnight of 26.04.1990. Similarly, the issues Nos.2 and 3 as referred to hereinabove have also been decided by the learned Single Judge in affirmative while holding that the defendants in the Suit are liable to pay the amount of compensation/damages as claimed in the Suit together with 10% markup from the date of institution of the Suit till realization of the amounts. It is pertinent to note that no issue regarding maintainability of the Suit under the Fatal Accidents Act, 1855, was either framed by the learned Single Judge in the Suit nor it has come on record that the appellants had proposed any issue to this effect or raised any specific objection with regard to maintainability of the Suit, as argued by the learned Additional Advocate General Sindh before us in the instant High Court Appeal, therefore, there has been no separate finding or decision by the learned Single Judge in the impugned judgment. Learned Single Judge, after having examined the facts and the evidence produced by the parties in the suit, including ocular as well as documentary evidence in the shape of medical report and the detailed report of Judicial Inquiry conducted pursuant to Court's order for ascertaining the cause of death, has been pleased to pass the judgment and decree in the aforesaid terms. Before we may proceed to record our finding as to merits of the case, we may observe that the arguments as advanced by the learned Additional Advocate General Sindh on behalf of the appellants to the effect that since the appellants have been acquitted in the criminal case registered against the appellants pursuant to a direct complaint filed by the respondents on the allegations that the deceased Muhammad Shakeel was killed by the police officials while in their custody, therefore, the Suit filed by the respondents containing the similar allegations was not maintainable, is misconceived in fact and law for the reason that admittedly, Muhammad Shakeel has died while in custody of the police, however, the cause of death is being disputed by the appellants, who have failed to discharge the onus to prove that the deceased, who a young man of 24 years of age and had no medical condition, suddenly died in their custody. Circumstances further reflect that police was supporting the accused persons as no FIR of the incidence was registered and the therefore, direct complaint was filed, however, in view of faulty police investigation and medical report, it appears that the charge of murder could not be established beyond reasonable doubt, which resulted in their acquitted in criminal case. However, the scope of civil pleadings and the relief sought in the Suit filed by the respondents, claiming compensation and damages under Fatal Accidents Act, 1855, is different and distinct from the scope of criminal proceedings pursuant to direct complaint filed by the respondents against the police officials. Moreover, it is settled legal position that where an aggrieved party has two different remedies by way of filing criminal case and/or to file a Civil Suit before Court of civil jurisdiction, both such cases can proceed simultaneously, and would not affect the merits of the other case, which has to be decided independently on the basis of evidence produced and the relief claimed therein as per law. It is also settled legal position that the parameter of establishing a criminal charge against accused person(s) and standards of appraising evidence and deciding a criminal case are different from the parameters of establishing a prima-facie case as per pleadings, standard of appraising evidence and deciding a case under civil jurisdiction. Decision in a criminal case in such circumstances, would not affect the proceeding, before a Civil Court, whereas, proceedings before a civil court, in appropriate cases, can be given preferential consideration over proceedings in criminal proceedings because of stringent standards of appraising evidence in civil proceedings. Reliance in this regard can be placed in the case of Karachi Transport Corporation v. Muhammad Hanif [2009 SCMR 1005).
6. We would now dilate upon the merits of instant High Court Appeal, while examining the finding of the learned Single Judge on the aforesaid issues, in the light of evidence produced by the parties in support of their claim(s) in the Suit. Record shows that the plaintiff in the suit in support of his claim of compensation/damages under the Fatal Accidents Act, 1855, against the defendants, and to establish that Muhammad Shakeel has not died a natural death, as he died in police custody because of assault and torture in CIA Centre, examined himself as PW-1 and also produced various documentary evidence, which has been duly exhibited before the learned Single Judge in the above suit. Perusal of the record and the evidence reveal that respondent No.1 filed his affidavit-in- evidence, wherein, he has stated on oath that the incident occurred on 25.04.1990, according to which, defendant No.7 along with defendants Nos. 8 to14 (in the suit) at about 05:00 P.M. caught hold of deceased Muhammad Shakeel at Jodia Bazaar near Khori Garden without any lawful reason and legal justification, who was purchasing some material for his shop and, thereafter, he was taken to CIA Centre where he was mercilessly tortured and assaulted violently for more than five hours constantly and consequently the deceased got fatal injuries and died on account of Wrongful acts of the police officials. The above witness also deposed that unnatural and brutal death of the deceased Muhammad Shakeel at the hands of the police officials was on account of his illegal arrest, torture, negligence, default, malfeasance and carelessness and harsh treatment of the deceased by the police officials, which fact was duly reported in the Newspapers. To support the above averments copies of the Newspapers clippings as Exh.P/1 to Exh.P/16, copy of death certificate issued by the Medical Officer of JPMC as Exh.P/17 were produced in Court. According to the deposition of the above witness, the police officials, in order to justify the wrongful and illegal arrest and confinement of the deceased in CIA lockup lodged an FIR No.149/1990 at about 2340 hours under section 13-D of Arms Ordinance at Mithadar Police Station, whereas, the police officials, defendants in the suit, instead of taking the deceased Muhammad Shakeel to the hospital, and informing his family started tempering with the entry and exit records and ultimately the deceased was taken to JPMC where he was finally pronounced dead. Inquest report was manipulated in collusion with SIP Fakharuddin of Saddar Police Station, which was produced as Exh.P/19, wherein, injury column was silent about any injury upon the deceased, which ultimately resulted in his death. The above witness further deposed that thereafter, on the protest of respondent No.1 and his relatives, inquest report was again prepared under the supervision of Magistrate Jethannand in presence of SIP Fakhruddin, which proved that death of Muhammad Shakeel was caused by torture and harsh beating, detail of which is reproduced hereunder: - I. There was contusions on back at gluteal region.
II. Bluish in colour 2 x 1 inches on each side extending right side towards the back at illicient.
III. There was abrasion on right side elbow 1-1/2"
IV. There was contusion at both right and left feet.
V. There was abrasion on back of neck 4-1/2" x 4-1/2".
VI. There were also abrasions on right and left knee each about 3/4% x 1/2"
The deposition of the above witness further reveals that postmortem was also conducted, whereafter, Chemical Examiner and Pathological reports were also taken, which corroborated the factum of the death of the deceased on account of injuries by torture and beating at the hands of the police officials during police custody. The final revised inquest report dated 26.04.1990 was also produced as Exh.P/22. Since, no FIR of the incident was registered, however, a Criminal Complaint No.607/1990 was filed before the District Magistrate, South, whereas, the letters were also written to the high officials of police as well as to the Prime Minister to look into the matter and to take legal action against the culprits in accordance with law. In support of all such assertions, original tele- printer message dated 02.05.1990, letter dated 14.5.1990, reply from Prime Minister Secretariat dated 7.5.1990 and reply from President Secretariat dated 6.5.1990 and memo of Criminal Complaint No.607/90, were produced as Exh. P/23, P/23A to P/23D before the learned Single Judge in the above suit. Since the police was not cooperating, therefore, order for judicial inquiry was passed by the defendant No.1 in the suit in order to ascertain the cause of death of deceased Muhammad Shakeel and to fix the responsibility on the culprits. The judicial inquiry was conducted by ADM South Muhammad Naseer Jamali, who submitted report to the defendant No.1 i.e. Secretary, Home Department, Government of Sindh, in the suit on 20.06.1990, wherein, it was reported that the injuries inflicted upon the deceased at CIA Centre led to his death, however, such report was not intimated to the family members of the deceased, therefore, respondent No.1 moved an application under section 151, C.P.C. bearing C.M.A. No.447/1997, seeking direction from the Court for the production of such judicial inquiry report in Court, whereafter, pursuant to Court's order, certified copy of the covering letter and judicial inquiry report were produced as Exh.P/23-E and P/23-F. The above witness also deposed that since the police was not cooperating and no action was being taken against the culprits, another Criminal Complaint No.419/1990 was filed in the Court of ACM Mithadar, wherein, statements of the witnesses were recorded and as such on the basis of those statements IInd Additional Judge (South) Karachi vide order dated 08.12.1991 concluded that prima facie, case is made out against defendants in the suit, for causing wrongful death to the deceased Muhammad Shakeel. The above witness produced certified copy of the Criminal Complaint, statements of the witnesses and the order of IInd Additional Judge (South) Karachi as Exh.P/24, P/24A and P/24B before the learned Single Judge in the above suit. The witness also deposed that the deceased Muhammad Shakeel was a young man of about 24 years, who was keeping very robust and sound health and he could have easily survived upto the age of 75 years and would have been able to enjoy pecuniary benefits from the earning of their son deceased Muhammad Shakeel to the extent of Rs.50,00,000/-, as the deceased was running and operating a large bakery and provisional store in Punjab Town, Karachi, and was earning a sum of Rs.5000/- to Rs.6000/- per month and besides the above earning, the deceased had also done course from Jamia Millia Technical Steel Training Centre as well as apprenticeship for Machinist from Pakistan Steel Fabricating Co. Ltd. and photocopies of certificate regarding technical training as Exh.P/25 and P/26 before the learned Single Judge in the above suit. It is surprising to note that as per Commission report submitted before the learned Single Judge in the above suit, inspite of service of Notices upon the defendants through Advocate-General Sindh for cross-examination of the plaintiff, none appeared to cross-examine the plaintiff, whereas, defendants also did not produce any witness or evidence in support of their defence. Though, defendant No.5 i.e. SSP, CIA Centre filed his written-statement, however, did not controvert the fact that deceased Muhammad Shakeel died, while in police custody, but only disputed the cause of death. It is also pertinent to note that the averments in the plaint relating to deceased life expectancy on the business of provisional store and bakery, his earnings from such business, and other credentials have neither been questioned nor could be rebutted, as the defendants did not even cross-examine the plaintiffs witness, as referred to hereinabove. Keeping in view the above facts and circumstances of the case and the evidence produced by the plaintiff in the above suit, the learned Single Judge while formulating the above issues has recorded its findings on each and every issue separately on the basis of un-rebutted evidence, while placing reliance on the relevant provisions of the Fatal Accidents Act, 1855. as well as on various reported judgments of the Superior Courts relating to maintainability of the suit, discharge of burden of proof, by the plaintiff for the purpose of claiming compensation/damages and also estimating the quantum of compensation/damages as claimed.
7. Since, the learned Single Judge has elaborately recorded, in detail, the findings on the Issue No.1 in Para 26 and Issues Nos.2 and 3 in Paras 27 to 32, wherein, all the factual and legal aspect of the matter, including objection raised by the learned Addl. Advocate-General Sindh and the learned counsel for remaining appellants in the instant High Court Appeal, have been dealt with in detail, it will be advantageous to reproduce the same hereunder for the sake of brevity: "26. The above stance on behalf of the Defendants is given due consideration. Contents of the Plaint have been examined and after conclusion of the evidence I ant of the view that the present case does fall within the purview of the Fatal Accidents Act, 1855 and more particularly Section I, in which, inter alia, it is specifically mentioned that for wrongful actions a claim under the above statute lies. Since factum of custodial death of Plaintiff's son is now an admitted fact, therefore, it is indeed a gross wrongful act committed by the Defendants Nos.6 to 14, therefore, the present claim is maintainable under the above Fatal Accidents Act of 1855. This finding automatically answers the second objection of the Defendants about the limitation. since instant action at law falls within the ambit of Act 1355, therefore, the time prescribed therein of one year shall be applicable and the present claim is within time. It follows that limitation of three months as mentioned in Section 42 of the Police Act, 1861, is not applicable at all. With regard to the acquittal of Defendants in the above Criminal Case; the findings given therein are not binding on this Court, in view of a settled rule of evidence applicable in Criminal and Civil Cases. In a Criminal Case, the prosecution is to prove beyond reasonable doubt the guilt of the accused, but, in a civil proceeding of the nature, the matter can be decided on the basis of preponderance of probability. The dicta of the afore-mentioned reported Judgments of Hon'ble Supreme Court handed down in the cases of Mst. Zainab Bibi v Mst. Bilqees Bibi and in particular Karachi Transport Corporation v. Muhammad Hanif are applicable to the issues at hand."
"ISSUES Nos.2 and 3.
27. Now adverting to the quantum of damages. Although pleading (Written Statement) of Defendants has been discarded as they failed to lead any evidence, but still looking at the peculiar facts of present case, the above Written Statement filed by Defendant No.5 (the then SSP CIA Centre) may be considered for assessing the defense that is set up by the Defendants. It is also pertinent to mention that no written statement was filed on behalf of Defendants Nos. 6 to 14.
The Written Statement of Defendants has not controverted the averments of Plaintiff with regard to his death in their (Defendants) custody, but only cause of death was denied. Similarly, pleadings of Plaintiff about deceased's life expectancy, running of business, monthly earnings and other credentials have neither been questioned nor rebutted in the evidence, for the reasons mentioned above. This significant fact is further fortified when the Plaintiff led the evidence on these material factual aspects to justify his claim of damages, but was never cross-examined It has been specifically stated on oath by the Plaintiff that the deceased's son was keeping a good health and his entire family have a reasonable life span up to 75 years. It was further deposed that the deceased was paying Rs.6,000/- (Rupees Six Thousand) to his parents, at that relevant time, that is, in the year 1990. 1, has also been specifically pleaded and subsequently testified on oath that the deceased was planning to set up a small unit for making parts through Moulding Machines, which would have increased his monthly earning upto Rs.40,000/- (Rupees Forty Thousand Only) per month. In these circumstances, a sum of Rs. 50.00,000/- (Rupees Five Million Only) has been claimed by Plaintiff towards damages and compensation. The claim of Plaintiff with regard to the quantum of damages is also unchallenged, therefore, admitted by Defendants.
To assess the quantum, number of decisions have been relied upon by Plaintiff's counsel. but all of them do not require a discussion here, except the decision of Hon 'file Supreme Court handed down in Punjab Road Transport Corporation case and a derision of a learned Division Bench of this Court in Ehteshamuddin Qureshi v. Pakistan Steel Mills (ibid), wherein, inter alia, not only the earlier principle in such cases has been reiterated, but the same has also been further expounded and summarized vis-a-vis a civilized society living under a constitutional dispensation. It would be advantageous to reproduce herein below the relevant paragraphs of the above Supreme Court Judgment: "10. The superior Courts laid down following principles to be kept in view while awarding damages in case a person has died on account of accident due to the negligence of the driver of the petitioner's vehicle, which causes death of the victim:
(i) the position of each dependent of the deceased should be considered separately;
(ii) the damages are not to be given as solatium but should be calculated with reference to a reasonable expectation pecuniary benefit, from the continuance of the life of the deceased.
Damages claimed by dependents for their own pain and suffering or for the loss occasioned to them due to the death of the deceased which is not referable to the expectation of any such pecuniary benefit is outside the scope of the Act;
(ii) the deceased need not be earning or the dependents need not be actually deprived of benefit. Reasonable expectation of such earning or benefit is enough;
(iv) the pecuniary loss due to the death should stem not from a mere speculative possibility of pecuniary benefit from the continuance of the life of the deceased but only from a reasonable possibility of such benefits;
(v) where the actual extent of such pecuniary loss cannot be ascertained accurately, the sum may be an estimate or partly a conjecture;
(vi) in assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages should be considered;
(vii) the pecuniary loss of each dependent should be ascertained by balancing on the one hand the loss to him of future pecuniary benefits and on the other any pecuniary advantage which from whatever source comes to him by reason of death.
11. The Constitution of a country is a kind of social contract which binds people, society and a State. The terms of the contract foster feelings of interdependence of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution H ensures promotion of nationhood and stability of the system. In view of Article 4 read with Article 5(2) of the Constitution, it is the duty of each and every organ of the State and people of Pakistan to work within the framework of Constitution and law as law laid down by this Court in the following judgments:-
(1) Ch. Zahoor Elahi's case PLD 1975 SC 383 and (2) Zahid Rafique's case PLD 1995 SC 530.
12. Our Constitution contains Chapter I relating "Fundamental Rights" in which life of human being is given due importance. It requires everyone to work for the welfare of the people of Pakistan but a person who is violating the law and Constitution works against the welfare of the people that is why it is high time to promote the law of tort so that the people must understand that we cannot live as a nation without performing our duties within the framework of law. As in the present admittedly the driver had driven the bus in violation of the mandatory provisions of Motor Vehicle Ordinance, 1965 and rules framed thereunder thus, causing fatal injuries to the innocent citizens."
(Underlining to add emphasis)
28. Taking into the account the evidence led by Plaintiff, particularly with regard to his specific Statement about life expectancy of the deceased who was Just a 24 years old young man, the nature of business he was doing; running a viable General Store, simultaneously acquired Technical Education from different Institutes for setting up a small manufacturing Unit, together with the deposition of Plaintiff about longevity in his family, it is not difficult to conclude and hold that life expectancy of 75 years in Plaintiff's family has been proved. The deceased, considering these factors, may also have lived for another 50 years approximately, therefore, the claim of awarding damages of rupees five million is justifiable and hence granted.
29. It is a settled principle of law in claims relating to tortuous liabilities that master/employer would be liable for the wrongful acts of his employees/servants. The reported case of Mukhtiar Begum Versus Karachi Transport Corporation (supra) of the learned Division Bench of this Court provides a complete answer. This legal position is further fortified by the Hon'ble Apex Court in its above referred decision of Karachi Transport Corporation v. Muhammad Hanif, wherein, it is held, inter alia, that an employer is always vicariously liable for acts of its employees performed in the course of duties. It is a matter of record that Defendants Nos.4 to 14 were performing their official duties and acts under the supervision, control and authority of Defendants Nos. 1, 2 and 3. Hence, Defendants Nos. 1, 2 and 3 and particularly Defendant No.1 which is a Provincial Government, are liable to compensate the Plaintiff; besides other Defendants. Consequently, Issues No.2 and 3 are answered accordingly, that Defendants are liable to pay the damages / compensation of Rs.50,00,000/- (Rupees Five Million Only) together with 10% (percent) markup from the date of institution of the suit till realization of the amount to Plaintiff and his wife, that is, parents of the deceased, jointly and severally.
30. Similarly, another reported case of Samiullah Khan Marwat (supra) who was at that relevant time was the Senior Superintendent of CIA, is of relevance, inter alia, as Hon'ble Supreme Court in the above cited case maintained the order of learned Services Tribunal, upholding the dismissal of said Samiullah Merwat from service. Serious allegations against him become part of the judicial record, in the above case; which included, extortion, kidnaping and resorting to illegal confinement and torture. This repotted decision in 2003 SCMR Page-1140, lends further support to the case of present Plaintiff because it relates to the same period when the present unfortunate incident of custodial death had taken place.
The Hon'ble Supreme Court in its decision given in the case of Samiullah Khan Merwat v.
Government of Pakistan (supra) has further clarified rather expounded the concept of administration of justice; which is not confined only to the judicial system, rather every person discharging the functions in relation to rights of people is bound to act fairly, justly and in accordance with law. Therefore, those who are at the helm of the affairs are bound rather under a constitutional obligation to address and remedy the genuine grievances of citizens of this Country and particularly for such fatal injuries.
31. Plaintiffs counsel has placed reliance upon the case law of foreign jurisdictions. Canadian Court in the case of Thomas Francis (mentioned in the title) has awarded compensation to the said Appellant who was a prisoner inmate and was injured while doing cleaning work of the windows at the Jail premises. Though the evidence with regard to negligence of Jail Administration was not conclusive, but still the learned Appellate Court of Canada while invoking the principle of vicarious liability awarded compensation to the said prisoner inmate, inter alia, by holding that Prison Authorities owe a duty to the suppliant for taking reasonable care of his safety as a person in their custody and in failure to do so, Crown (Government) is liable.
Similarly, another reported case of Indian jurisdiction handed down in the case of Chairman Railway Board v. Chandrima Das and others (supra), the learned Supreme Court of India has upheld the decision of Calcutta High Court, which has granted the compensation in exercise of its writ jurisdiction/power of judicial review. The Respondent (victim) was a tourist from Bangladesh when she was gang raped at Railway Station by some Railway Staff (employees).
In another case of Indian Supreme Court (reported in AIR 1990 Supreme Court Page-513) adequate compensation was granted to a victim / Petitioner whose minor son died due to tortuous act of Police Officials. It was held, inter alia, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortuous act committed by its servant within the scope of his employment and functioning as such as any other employer.
32. Looking at the peculiar nature of the case, highhandedness of officials who are Defendants, the conclusive evidence that has come on record and the complacent attitude of Defendants Nos.1, 2 and 3, 1 cannot restrain myself from observing that once the Defendant No.1 (Government of Sindh) and Defendants Nos. 2 and 3 have acquired knowledge about the unfortunate incident, particularly after findings of a duly constituted Judicial Enquiry, then being a Provincial Government and senior officials of an Islamic Welfare State, they should have compensated the family of the deceased long time back.
The importance of a Judicial Enquiry can be determined from an unreported decision of Hon'ble Apex Court given in the Civil Petition No.69-K/94 (Anwar Ahmed Khan v. The State and another] a copy of which is available in the research Folder (on Police Atrocities) submitted by the learned Advocates representing the Plaintiff. The Hon'ble Supreme Court in the above case of Anwar Ahmed Khan has refused to grant the leave against the decision of this Court, whereby, inter alia, certain directions were issued to Provincial Government on the basis of the findings of a Judicial Enquiry (Report). It is not out of place to mention here that the decision of this Court passed in above case (Constitution Petition No.D-2182 of 1993) and subsequently, of the Hon'ble Supreme Court, was primarily based on the findings of the Judicial Enquiry Report in respect of a custodial death."
8. Learned Additional Advocate General and the learned counsel for the appellants, could not point out any factual error and legal infirmity in the foresaid findings of the learned Single Judge in the impugned judgment, which is duly supported by the reported judgments of the superior Courts, whereas, they have mainly argued the issue regarding maintainability of the suit under the Fatal Accidents Act, 1855, and expressed their apprehension that if, the impugned judgment and decree is not set-aside, then in every case of custodial death, the legal heirs of the deceased will claim compensation/damages in similar terms, which according to learned Additional Advocate General, would render the provisions of Pakistan Penal Code, Criminal Procedure Code as well as Police Act, 1861, relating to the arrest of an accused person as redundant and inoperative, and will also have the adverse effect on the functioning of the police and other law enforcement agencies to prevent and curb the crimes in the society by making arrest of the accused persons required in a cognizable offence. We are mindful of the fact that in each and every case of custodial death, if the cause of death of a person in police custody is Natural and not on account of torture, assault, beating, wrongful acts, negligence or default on the part of the police officials, will not attract the provision of the Fatal Accidents Act, 1855, unless it is established that loss occasioned by his death is on account of actionable wrong, as mentioned hereinabove. However, in the instant case, the plaintiff has been able to successfully establish that the death of deceased Muhammad Shakeel was not Natural death, but he has died because of injuries inflicted upon him by the police officials during police custody at CIA Centre. It has also come on record that police officials acted in grave violation of law while brutally torturing Muhammad Shakeel while in their custody at the one hand, but also attempted to cover up their illegal acts by obtaining false reports regarding cause of death. However, after great efforts by deceased's family and intervention by superiors as well as by members of civil society, judicial inquiry of the incidence was ordered. The detailed report of judicial inquiry conducted by Judicial Magistrate as per Court's order and the medical report of the deceased, which remained un-rebutted, it came on record that he was brutally tortured and beaten by the police officials, which resulted in his death. Inspite of detailed proceedings before the learned Court in the suit and opportunity provided to all the dependents, they could not disprove the above facts and also failed to make out a case that due care was observed or any steps were taken to save the life of Muhammad Shakeel, who was in their custody by providing or facilitating his Medical treatment. On the contrary, record shows that gross negligence, if not deliberate attempt to cause his death through torture and beating, has been shown, as no prompt action was taken to provide or arrange for immediate Medical treatment, so that life of Muhammad Shakeel could be saved. Accordingly, we are of the considered opinion that the impugned judgment and decree does not suffer from any factual error or legal infirmity, therefore, instant High Court Appeal was dismissed vide our short order dated 01.04.2022 and above are the reasons of such short order.
9. Before parting with this order, we may observe that since the appellants did not seriously dispute the quantification of the amount of compensation/damages as claimed by the plaintiff in the suit, nor have made any arguments as to fixation of liability upon the appellants jointly and severally, may be in view of their joint actionable wrong and gross negligence for having failed to provide or arranging for the Medical treatment to Muhammad Shakeel, who was in their custody. which eventually resulted in his death therefore, we have not recorded our separate finding relating to fixation of liability for the purposes of making payment of compensation/damages by each appellant in the instant case.