1. MUHAMMAD AFZAL ZULLAH, C.J.---In this direct appeal by the Government wherein, the grant of damages in tort to the respondent amounting to Rs,1,00,000 on account of the death of his minor ailing daughter in the Mayo Hospital, Lahore, due to the negligence of the medical staff thereof, has been brought under challenge.
2. ' No doubt the impugned judgment, prima facie, appears to be unexceptionable as the functionaries of the appellant in the Services Hospital and the Mayo Hospital failed to save the life of the ailing child and a strong possibility cannot he excluded that the death was due to the gross negligence of the appellant's functionaries; namely, the doctors who purported to have dealt with the case. However, we have noticed that on account of certain procedural difficulties faced by the learned trial Judge for procuring and entertaining the most vital evidence oral and documentary, it has become possible to give a benefit of doubt to the appellant in so far as the conduct of its functionaries is concerned. This is so because relevant vital evidence has not been brought on record. Had the needful been done in this behalf and the said evidence would have been admitted there would have been both the possibilities of confirming the findings against the appellant or to set them aside. The latter could have been an equally strong possibility.
3. ' The evidence which is not on record is two-fold. One, the Lady Doctor Nargis, Medical Officer and who purported to have attended the patient on her admission and also purported to have prescribed and administered medicines, has not been examined as a witness. Similarly, the original record which could be procured and brought on the record of the trial Court in accordance with the normal procedure but with a little more effort, has not been admitted as evidence. A Chit, purported to have been issued by Lady Dr. Nargis produced by the respondent during the cross- examination of a witness shows as if it does not (prima facie) seem to have been issued by her. It does conflict with some photo copies of the record. But there is no surety that this document produced by the respondent from tis own possession at a very late stage was in reality in the handwriting of Lady Doctor Nargis. It is also strange as to how this document came in possession of the respondent and remained with him till a late stage in the trial. Its authenticity seriously remains in doubt. For all these reasons there is no alternative but to allow the appeal only on the extension of benefit of doubt.
4. One of the procedural consequences amongst others i,e, extension of benefit of doubt as held in a criminal case Sher Hassan v. The State PLD 1959 Supreme Court (Pak.) 480 is that neither of the two alternatives will be deemed to have been established and further that either of those conflicting positions could be deemed to have existed. That being so, the appellant has been given only the benefit of this jurisprudential effect of benefit of doubt. One position as affirmed by the High Court going in favour of the respondent could also be correct, therefore, while the appellant succeeds on a legal and technical ground of extension of benefit of doubt, as discussed above, on merits it remains partial success. Therefore, while the stigma and finding of guilty is removed from the appellant's own functionaries at the same time the respondent/plaintiff is allowed to retain the amount of damages which has already been paid to him and he has utilized the same fo;' arranging the marriage of his other daughter.
5. ' It may be clarified that even if the amount would not have been paid to the respondent and there would not have been any additional factor of his daughter's marriage we would have still allowed to him the benefit of receiving the amount as the appeal has been allowed only on benefit of doubt. Thus while partly accpeting this appeal it is directed that the decretal amount which has already been paid to the respondent shall not be recovered from him.