' TALAAT QAYUM QURESHI, J.--- This regular first appeal is directed against the judgment and decree, dated 31-1-2001 passed by the learned Civil Judge-II, Mardan whereby he granted a decree for the recovery of Rs,21,20,000 as prayed for with costs of Rs,15,000 in favour of Saidur Rehman and wife plaintiffs/respondents against the defendants/appellants.
2. The brief facts of the case are that Saidur Rehman and his wife plaintiffs/respondents instituted suit against the defendants/appellants for the recovery of Rs,21,20,000 as damages. It is averred in the plaint that Muhammad Qayyum deceased was the eldest son of the plaintiff/ respondent was a B.A. Student; that on 17-10-1995 the deceased was travelling in a Bus bearing No,3385-PRC; that defendants Nos.6 to 8 on the order of defendants Nos.1 to 5 and 9 opened indiscriminate firing on Motor Car No,3796/LOZ and the bus in which his son was travelling, as a result of which the son of the plaintiffs was hit and died; that due to the negligence and carelessness of the defendants the son of the plaintiffs lost his life which was expected up to sixty years and thus Rs,19,20,000 was to be calculated on his income for the remaining forty years; that apart amount the plaintiffs claimed Rs,1,00,000 for physical and mental shock and Rs,1,00,000 incurred on treatment and funeral of the deceased. The defendants were asked time and again to pay the above mentioned amount but in vain. Hence the instant suit. The suit contested by the defendants by filing their written statement.
The pleadings of the parties gave rise to as many as seven issues including the relief. Evidence pro and contra was recorded and after hearing the learned counsel for the parties, the learned trial Judge decreed the suit in favour of the plaintiffs/respondents against the appellants/defendants vide judgment and decree, dated 31-1-2001.
3. Mr. Nizar Ahmad, the learned D.A.-G. Representing the appellants argued that the impugned judgment and decree passed by the learned trial Court is based on misreading and non-reading of evidence. The medical report Exh.P.W.1/1 reveals that the deceased had sustained only single fire-arm injury, whereas the learned trial Court in the impugned judgment has stated that the deceased had sustained five firearm injuries on his person. This shows that the evidence on record was misread.
4. It was also argued that the appellants were performing their duties and they did not act negligently rather they have performed their duties diligently with due care.
5. It was also argued that the learned trial Court while assessing the damages and determining the compensation has failed to apply the law on the subject. The compensation, if any, to financial benefits suffered by the beneficiary and the financial damage was worked out with reference to life expectancy to the beneficiaries and not the deceased.
6. On the other hand Haji Muhammad Alam Khan, Advocate the learned counsel representing the respondents argued that the learned trial Court had properly appreciated the evidence available on record.
7. It was also argued that the son of the respondents/plaintiffs, who was a student of B.A. Was travelling in a bus and if the appellants/ defendants wanted to intercept any motor car, they could adopt reasonable measures, but instead of adopting measures they resorted to indiscriminate firing in a thickly populated public place and in the rush hours of the day. This indicates that the appellants/plaintiffs did not act diligently.
8. It was also argued that no case was registered against the persons who were travelling in the car, which the police officials wanted to intercept and perusal of the F.I.R. Shows that the same was registered after the occurrence has taken place. This also shows the mala fide of the appellants.
9. It was also argued that since the deceased was a young boy, therefore, his life expectancy was up to 60 years. The damages have been calculated at the minimum possible rates and the learned trial Court has rightly appreciated while granting the same. Reliance in this regard was placed on 1997 CLC 132; 1997 MLD 309; 1997 M LD 2842; 1997 CLC 1517; 1998 CLC 570 and 1996 SCM R 406.
10. We have heard the learned counsel for the parties at length and perused the record.
11. The questions that require determination in this case are:--
(i) Whether the appellants/defendants were negligent?
(ii) Whether Muhammad Qayyum died due to firing of appellant/defendant No,37?
(iii) Whether the respondents/plaintiffs were entitled to damages, if so to what extent?
12. Answer to the first question is in affirmative. The admitted position in this case is that Muhammad Qayyum (deceased was travelling in Bus No,3385-PRC to Mardan, when the bus reached Takht Bhai Railway Crossing, police started indiscriminate firing due to which Muhammad Qayyum received bullet injury and consequently died. This fact was not only stated by Said Gul P.W.4 but by Fazal Rehman P.W.5 and Jamrali P.W.6, who were also travelling in the same bus and had seen the occurrence. Sher Malook A.S.-I. P.S. Takht Bhai was also examined as D.W.1. He also admitted that Sher Ali, I.H.C., Sherin and Saeedullah Constables made 'aerial' firing on Car No,3796- LOZ. He admitted that with the firing of police officials one Jamal and Said Muhammad, who were travelling in Motor Car No,3796-LOZ were injured. He also admitted that passengers travelling in the Bus, were also injured with the police firing, but he tried to take shelter that the firing was done in the course of performance of duties. Muhammad Anwar Circle Officer, Anti-Corruption Mardan was examined as D.W.2. He had investigated the case registered vide F.I.R. No,761 dated 17-10-1995 at P.S. Takht Bhai. He also admitted that due to the police firing the passengers of the bus received bullet injuries and the son of the plaintiff Abdul Qayyum also sustained injuries.
13. The above discussed evidence clearly establishes the fact that the police officials present on the spot made indiscriminate firing due to which not only the deceased Muhammad Qayyum sustained injuries, but other passengers of the Bus and Jamal and Said Muhammad who were travelling in Motor Car No,3796-LOZ also sustained injuries.
14. The question that requires determination at this point is as to whether the I.H.C. Sher Ali, Sherin and Saeedullah Constables were justified in making indiscriminate firing at a public place in the rush hours, answer to this question is obviously in negative. It is a matter of common knowledge that Takht Bhai Railway Crossing is one of the busiest place in Takht Bhai. If the police party present there had received information that Motor Car No,3796-LOZ had disobeyed the signal of police and had broken the road check set up by police, then the driver of the car and other persons sitting in the car were not to be fired at. The police officials present at the road crossing could have blocked and stopped the said motor car by closing the Railway Crossing or by blocking the road by any other means, but instead of adopting other measures to stop the said vehicle, they resorted to indiscriminate firing without caring that the precious lives of the persons travelling in the said motor car were in dangers, but many people out of the public could also be injured due to their indiscriminate firing. The police officials had tried to take up shelter that the persons travelling in Motor Car No,3796- LOZ were involved in case registered vide F.I.R. No,761 dated 17-10-1995 under sections 468/471/420/379,P.P.C. And section 14 of the Islamic Law at P.S. Takht Bhai Exh.D.W.2/D-1 but the perusal of the said F.I.R. Reveals that the same was registered much after the firing made by the police authorities i,e, the said F.I.R. Was registered at 9-10 a.m., whereas firing was done by the police officials at 8-30 a.m. As is clear from F.I.R. Exh.D.W.2/D-1). This indicates that the said F.I.R. Was registered to justify the injuries of Jamal and Said Mahmood who were travelling in the said car as well as injuries sustained by the passengers of the Bus including the deceased.
15. It is by now settled that negligence is omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. "Negligence" is not a question of evidence but it is an inference to be drawn from the proved facts. It is not an absolute term but is relative one and is rather of comparative term. It is also well-settled that burden to prove "negligence" is on plaintiff and not for the defendant to disprove it, but there is an exception to this rule which applies whether the circumstances surrounding the thing which causes the damage or at the material time exclusively under the control or management of defendant or his servant and the happening is such as does not occur in the ordinary course of thing without negligence on the defendant's part, which is known as "res ipso loquitur". According to the above mentioned doctrine safety is best secured when it is made the responsibility of the person who must not only take precautions to avoid accident but who alone decide what those precautions should be.
16. In the case in hand the consequences of indiscriminate firing should have been known to those who resorted to the same without taking any precaution that any person from public is not hit by their firing. They failed to care about the consequences of their acts. A prudent and reasonable Police Officer would not have acted in the manner Sher Ali I.H.C., Sherin and Saeedullah constables acted.
17. So far as the second question as to whether Muhammad Qayyum died due to the firing of the police officials is concerned, answer to this question is also in affirmative. Evidence establishing that Muhammad Qayyum was hit with the firing of the police officials has been discussed in the above paragraphs and there is no need to repeat the same. However, it is worth-mentioning that the firing by a police official was also admitted by Sher Malook, A.S.-I. P.S. Takht Bhai D.W.1 and Muhammad Anwar Circle Officer, Anti-Corruption, Mardan. D.W.2. The Medico-legal report Exh.P.W.1/1 also lends full support to the fact that ' the deceased was hit with the police firing and died due to the same.
18. So far as the third question i,e, whether the respondents/ plaintiffs were entitled to damage if so to what extent, answer to this question is also in affirmative. It is in evidence that Muhammad Qayyum was at the relevant time student of Pre-Engineering 1st year in the year 1991-92 in Government College Lund Khawar. This fact was stated by Yousaf Ali, Record Keeper, Government College Lund Khawar, who was examined as P.W.3. He placed on record copy of Admission Register as Exh.P.W.3/1. This witness was not cross-examined through opportunity was provided by the learned trial Court. The identity card of the deceased Exh.P.W.7/3 certificate issued by Principal Quaid-e-Azam Commercial College Exh.PW..7/4. Character certificate Exh.P.W.7/5 also support that he was student of pre-Engineering and was born on 4-5-1973. It has also been established, as mentioned above, that he was travelling in Bus No,PRC-3385 to his village on 17-10-1995 and was hit by the firing of police, there was no lawful justification for the police officials to make indiscriminate firing only for stopping the vehicle which has not cared for the signal of the police officials. Muhammad Qayyum at the relevant time was sitting in the bus, he was not aware of the indiscriminate firing made by the police officials, therefore, he could not adopt any precautionary measure, he was hit with the negligent firing of police and died later on, therefore, the respondents/plaintiffs were entitled for the damages. The next question which requires determination is as to how much damages the respondents/plaintiffs were entitled for. While determining the quantum of damages, superior Courts have laid down criteria in Federation of Pakistan through Secretary Railway and another v. Hafiza Malika Khatoon Begum and others 1996 SCM R 406 in which it was held:-- "The compensation in both the cases has been granted on a well-recognized principles in which taking into consideration inter alia, the expectancy of life of the deceased and his income."
' Similarly, in Waseema and another v. Karachi Transport Corporation through Managing Director, Director or Secretary and another 1998 CLC 573 the life expectancy of the deceased, was taken to be 70 years, loss of pecuniary benefits, earning capacity of deceased additional earnings and even after retirement his earning etc. Was calculated and decree was passed in his favour.
' Likewise in Roshan Jan and 3 others v. Pakistan and 2 others 1997 CLC 1417 normal expectancy of life of 70 years of deceased, his income, future prospectus were taken into consideration and his total income was directed to be given to his heirs.
' Similarly, in Shah Bashir Alam and 2 others v. Messrs Arokey Chemical Industries Ltd. 1997 M LD 2308 normal life span was taken at 60 years and it was held that where cogent evidence had come on record that in family of deceased normal age was more than 60 years, Court would not restrict itself to 60 years as expected age of the deceased or concerned beneficiaries but who expect 65 years or even more depending on assessment on the basis of evidence on record.
19. In the case in hand the learned trial Court has rightly taken into consideration that the life expectancy of the deceased was 60 years as he was a young boy of 20 years. He was healthy and was not suffering from any disease. He could have easily worked for 40 years, therefore, the learned trial Court has granted Rs,19,20,000 at the rate of Rs,4,000 per month for 40 years. The learned trial Court has also granted Rs,1,00,000 to the respondents/plaintiffs for mental torture and agony and shock cause to them due to death of their young son and a sum of Rs,1,00,000 the amount spent on medical treatment. It is worth-mentioning that respondents/plaintiffs had proved that they spent more than Rs,1,00,000 towards medical expenses by placing on record prescriptions and receipts Exh.P.W.7/6 (27 sheets) and there is no rebuttal/denial from the appellants' side that the said amount was spent on his treatment.
20. The learned trial Court has properly appreciated the evidence available on record and has also rightly applied law applicable to the case in hand.
' We have not been able to find out any justification to interfere with the impugned judgment and decree. Resultantly, the appeal in hand is dismissed. Parties are left to bear their own costs.
Appeal dismissed.
1004 CLC 1689 [Lahore] Before Syed Zahid Hussain, J INSHALLAH KHAN and 10 others---Petitioners versus SIR BOLAND KHAN and 3 others---Respondents Writ Petition No,13973 of 2003, heard on 25th May, 2004.
(a) Constitution of Pakistan, 1973--- ----Art. 199---Constitutional and appellate jurisdictions---Comparison--Constitutional jurisdiction, scope and limitations---Sphere, bounds and limitations of Constitutional jurisdiction could not be equated with the appellate jurisdiction of the Court---Marked difference exists in the scope, extent and content of the two remedies---Resolution of the disputed questions of fact does not fall within the domain of jurisdiction of Constitutional Court under Art.199 of the Constitution--- Appreciation and reappraisal of the evidence was not to be undertaken by the Court. Ip. 1691] A
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Title of landlord in ejectment proceedings.; resolution of-- Ejectment petition filed by the petitioners against the respondents was accepted by the Rent Controller---Appeal preferred by the respondents against the decision of the Rent Controller was successful with a direction to the petitioner by the Appellate Court to establish their title before the Civil Court---Constitutional petition was filed by the petitioners challenging said order---Validity---Burden was upon the landlords to prove their title or the relationship of landlord and tenant for the purposes of ejectment, and they produced bulky evidence in this regard, but the same was considered unsatisfactory by the Appellate Court--- Serious dispute as to title and identity of the property, that cropped up, had to be resolved before an ejectment order could be passed--Appellate Court was fully justified to reverse the order of the Rent Controller---Constitutional petition was dismissed in the circumstances. [p. 1691] B Nisar Ahmad and others v. District Judge, Muzaffargarh and others 1984 SCM R 317; Rehmat Ullah v. Ali Muhammad and another 1983 SCM R 1064; Junaid Rasheed and others v. Sultan Muhammad and others 2000 SCM R 1525 and Khalid Mahmud and 6 others v. Maqbul Mahmood Bajwa Additional District Judge, Sialkot and another 1999 M LD 1607 ref. Muhammad Farooq Qureshi Chishti for Petitioners.
S.M. Masood and Moiz Tariq for Respondents Nos.l to 3.
Date of hearing: 25th May, 2004.
' An ejectment petition was instituted by the petitioners against the respondents qua Property No,2400 that the same had been transferred to their predecessor-in-interest and P.T.D. Had been issued on 22-4-1973. The ejectment petition was filed on 2-9-1996. In their reply filed by the respondents, relationship of landlord and tenant was denied which gave rise to Issue No, 1.
Evidence was led by the parties. On 11-10-2000 the learned Rent Controller accepted the ejectment petition recording finding in favour of the petitioners. Appeal preferred by the respondents thereagainst, however, succeeded and the finding was reversed by the learned Additional District Judge, Daska vide his judgment dated 9-7-2003 with a direction to the petitioners to establish title before the Civil Court. This is petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 qua the above mentioned appellate judgment.
2. Lengthy arguments have been addressed in this matter in view of the bulk of the material on the record.
3. It is high time to be conscious of jurisdictional sphere, bounds and limitations of writ jurisdiction. It cannot be equated with the appellate jurisdiction of the Court. There is a marked difference in the scope, extent and content of the two remedies. Resolution of disputed questions of fact does not fall within the domain of jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and that appreciation and re-appraisal of the evidence is also not undertaken by this Court in writ jurisdiction. I have been taken through the evidence due to variant approach of the lower Courts in order to satisfy as to whether there was any material misreading or non-reading of the evidence or illegality or infirmity with the approach adopted by the learned Additional District Judge in the matter. It was the case of the petitioners that Muhammad Ibrahim Abid, their predecessorin-interest, has purchased Property No,2400 in open auction from the Settlement Department for which P.T.D. Was issued on 22-4-1973. The ejectment petition was, however, filed against the respondents in the year 1996. According to the petitioner, the respondents were occupying the said property. This assertion of the petitioners was disputed by the respondents and' the plea of the petitioners was controverted that the property occupied by them was not No,2400 and that the site plan brought on record by the petitioners was also incorrect. It was, thus, that issue No,1 as to "Whether relationship of landlord and tenant exists between the parties" ' was framed by the Rent Controller with the onus on the petitioners to prove the same. As mentioned above, an attempt was made by the petitioners by producing bulky evidence to prove the issue but the same was found unsatisfactory by the Appellate Court who reversed the finding of the learned Rent Controller. In the context of the controversy it was the burden of the petitioners to prove that what was purchased in auction by their predecessor-in-interest and Was transferred by the Settlement Department was the property in occupation of the respondents. Thus, a serious dispute as to title and the identity of the property had cropped up, the resolution whereof was essential before an ejectment order could be passed against the respondents. In Nisar Ahmad and others v. District Judge, Muzaffargarh and others 1984 SCM R 317 it was observed with reference to Rehmat Ullah v. Ali Muhammad and another 1983 SCM R 1064 that the finding recorded by the learned Rent Controller and the Appellate Authority after appraising the evidence was not open to scrutiny and reversal in Constitutional jurisdiction and that the appropriate course would have been to leave an opportunity open for the landlord to go and establish his claim in Courts of plenary jurisdiction. Similar was the approach adopted in Junaid Rasheed and others v. Sultan Muhammad and others 2000 SCM R 1525 in which controversy of almost identical nature (identification of property) had arisen and it was observed that dispute relating to title of the property could not be decided in rent proceedings or in appeals emanating therefrom. Similar was the view taken, by this Court in Khalid Mahmud and 6 others v. Maqbul Mahmood Bajwa, Additional District Judge, Sialkot and another 1999 M LD 1607. In such view of the matter, the learned Additional District Judge i,e, the Appellate Authority in the present case was fully justified to reverse the order of the Rent Controller which judgment is consistent with the above cited precedents.
' The petition is, thus, dismissed with an option open for the petitioners to approach the Civil Court for resolution of the dispute as to their claim and the identity of the property. No order as to costs.