1. ' Plaintiffs M/s. Karachi Electric Supply Corporation Limited have filed this suit with reference to an incident of armed robbery occurred on 25-7-1990, whereby they were deprived of cash of Rs,16,01,776.76 while the same was in transit from National Bank of Pakistan, KESC Branch, Abdullah Haroon Road, Karachi, to the office of plaintiffs (0C-1 Centre).
2. ' Case of the plaintiffs is that they had purchased Insurance Policy No,41-0142-6/90 from defendants corporation to secure their cash in transit, which was valid for the period from 1-7-1990 to 30-6-1991 and therefore they are entitled to recover the suit amount from defendants under the said Insurance Policy.
3. ' In the written statement, defendants did not dispute issuance of Insurance Policy in favour of plaintiffs, which was valid for the period from 1-7-1990 to 30-6-1991 and subsisting on the date of incident. However they have disputed the claim of plaintiffs on the basis of conditions provided in the Insurance Policy. According to defendants, one employee of plaintiffs-corporation was involved in the incident of robbery therefore as per the conditions of Insurance Policy plaintiffs were not entitled for the benefit of such policy to recover the suit amount.
4. ' On the pleadings of the parties summarized above, by consent following issues were settled in the suit on 21-11-1993 :
(1) Whether on 1-7-1990 the plaintiff purchased an Insurance Policy No,41-0142-6/90 for the period of assurance from 1-7-1990 to 30-6-1991 both dates inclusive from the defendants, covering the amount as mentioned in paragraph No,3 of the plaint?
(2) Whether on 21/45-7-1990 (at the relevant date, time and place) an amount of Rs,16,01,776.76 belonging to the plaintiff drawn from National Bank of Pakistan KESC Branch was robbed on the gun point at the main gate of KESC office situate at Shahrahe-Quaideen by the culprits involved in the case?
(3) Whether the real culprits involved in the aforesaid dacoity case were apprehended, prosecuted and convicted by the Special Court No,III for Suppression of Terrorist Activities, Karachi in Special Case No,396 of 1991 vide its judgment dated 23-6-1992?
(4) Whether under mistake of fact and due to abnormal physiological condition the police officer recording the F.I.R. Bearing No,626 of 1990 erroneously mentioned an amount of Rs,1,61,776 instead of Rs,16,01,776.76 as the robbed amount?
(5) Whether Khuda Bux Jatoi an employee of the plaintiff was wrongly and falsely implicated by the police in aforesaid dacoity case and consequently was acquitted by the Special Court No,III for Suppression of Terrorist Activities, Karachi in Special Case No,396 of 1991 vide its judgment dated 23-6-1992?
(6) Whether the plaintiff is entitled to get the claim of Rs,16,01,776.76 from the defendants for the loss lodged by the plaintiff under cash in transit policy?
(7) What should be the decree?"
5. ' At the stage of evidence from the side of plaintiffs, they examined two witnesses Muhammad Masood Baloch (Exh.5), who produced documents Exh.5.1 to 5.8, and other witness Muhammad Naeem Khan (Exh.6), who produced documents Exh.6.1 and 6.2 during the course of his cross- examination. From the side of defendants, they examined witness Ghulam Rasool and thereafter their side was closed.
6. ' I have heard Mr. Ikram Siddique, Advocate for plaintiffs and Mr.Abdul Rauf, Advocate for defendants.
7. ' My findings on the above issues are as under:--ISSUE NO,1 ' The plaintiffs in para.3 of the plaint have stated that they had purchased Insurance Policy No,41- 0142-6/90 for the period from 1-7-1990 to 30-6-1991, which fact has not been disputed by the defendants in their written statement. This fact is also verified and confirmed from the Insurance Policy (Exh.5.1), which is an undisputed document. During the course of evidence again this fact has not been disputed by the witnesses examined by the parties. In view of this undisputed position, Issue No,1 is answered in the affirmative.
8. ' ISSUES NOS,2 AND 4 ' As Issues Nos,2 and 4 are interconnected, same are taken up together.
9. ' The case of the plaintiffs is that during the incident of robbery occurred on 25-7-1990 cash in transit in the sum of Rs,16,01,776.76 was taken away by armed culprits for which F.I.R. No,626 of 1990 Police Station Ferozabad was lodged. Further case of the plaintiffs is that at the time of lodging of F.I.R. Due to mistake cash figure was incorrectly mentioned as Rs,1,61,776 instead of Rs,16,01,776.76, which was subsequently got rectified through letter issued by the plaintiffs corporation. During the evidence, plaintiff's witnesses have fully supported their case in this regard and their statements in this context have gone unchallenged in cross-examination. Even the only witness examined from defendant's side has not only not disputed this position but has further stated that the surveyor deputed by them to investigate the loss of cash in transit alleged by the plaintiffs, has submitted his report that cash amount of Rs,16,01,776.76 was lost during the transit. This clear and unambiguous admission by the defendant's witness is also supported from other material available on record. Issues Nos,2 and 4 are therefore answered in the affirmative.
10. ' ISSUES NOS,3 AND 5 ' These issues being interconnected are discussed and decided jointly.
11. ' Case of the plaintiffs is that after the incident dated 25-7-1990, during investigation of Crime No,626 of 1990, Police Station Ferozabad, Karachi, some persons were arrested and set up for trial before the STA Court. At the stage of evidence, plaintiffs have produced copy of judgment passed by the Special Court No,3 in Special Case No,396 of 1991 relating to such incident, which confirms this position. By this judgment four of the nominated accused were convicted while one accused Khuda Bux Jatoi, who is stated to be an employee of KESC was acquitted. There is nothing on record to show that this judgment was challenged or set aside in appeal. Further in this suit merits of such judgment cannot be examined by this Court. In view of. This admitted and undisputed position. Issues, Nos,3 and 5 are answered in the affirmative.
12. ' ISSUE NO,6 ' It is the case of the defendants that in the incident of robbery resulting in loss of Rs,16,01,776.76 to the plaintiffs, during the cash in transit, one of the employees Khuda Bux Jatoi of plaintiffs- corporation, was involved and therefore as per proviso (a) to the policy the defendants are absolved of their liability to make payment of robbed sum to the plaintiffs. In this context Mr. Abdul Rauf, Advocate has categorically argued that at the stage of evidence all the three employees of plaintiffs-corporation, who. Appeared before the Special Court in the criminal . Case did not support the case of prosecution, therefore, case against accused Khuda Bux Jatoi resulted in his acquittal. He further argued that plaintiffs-corporation did not prosecute the criminal case properly as required under Condition No,5 of the Insurance Policy, therefore, they have lost the protection extended to them under the Insurance Policy and in such circumstances the defendants- corporation was not liable to make good the loss suffered by the plaintiffs. In my humble view mere fact that one of the accused involved in the incident was employee of plaintiffs (KESC), who was admittedly acquitted during the proceedings of criminal case, will not absolve the defendants- corporation of the liability to make good the case loss suffered by the plaintiffs-corporation during the incident dated 25-7-1990. Moreso, as otherwise it has not been disputed by the defendants that such loss was covered by their Insurance Policy issued in favour of plaintiffs which was valid as subsisting on the day of incident.
13. ' Contention of the learned counsel for defendants with reference to Condition No,11 of the Insurance Policy and section 14 of the National Insurance Corporation Act, 1976, has also no farce as same does not provide bar for the plaintiffs to institute the present suit. In addition to this if the defendants wanted to resolve their dispute before that forum they could have approached the concerned Committee for that purpose. From the judgment passed in Special Case No,396 of 1991 it is evident that the employee of plaintiffs was falsely implicated by police in the said crime therefore on this pretext defendants cannot lawfully avoid liability of suit amount. Issue No,6 is accordingly answered in the affirmative.
14. ' ISSUE NO,7 ' For the foregoing reasons suit of the plaintiffs is decreed in the sum of Rs,16,01,776.76 with mark-up at the rate of 14% per annum from the date of institution of the suit till its realization.