PAKISTAN through Secretary, Ministry of Defence and others vs Haji ABDUL

' RANA BHAGWANDAS, J.--- Petitioners seek leave to appeal against Sindh High Court judgment, dated 28-8-2003 passed in High Court Appeal No,144 of 1993, setting aside the judgment of a learned Single Judge whereby suit for compensation, under the Fatal Accidents Act, 1855, filed by respondent was dismissed and suit decreed in the sum of Rs,8,46,000.

2. Facts leading to the suit appear to be that on 7-8-1988 deceased Muhammad Ali aged about 25 years was driving his motorcycle on Shahrah-e-Faisal towards Airport when a Pakistan Air Force Trailer Truck No,MR-0901 driven by petitioner No,3 in the employment for petitioners Nos.1 and 2 dashed against the motorcycle whereby the deceased fell down on the ground and received fatal injuries. He was shifted to Jinnah Post Graduate Medical Centre where he succumbed to injuries.

Upon becoming aware of the accident a colleague of the deceased namely Riaz Muhammad from Kashif Motors set the law into motion by reporting the incident at Saddar Police Station where F.I.R.

Was registered by A.S.-I.P. Afsar Khan. Upon conclusion of the investigation, petitioner No,3 Muhammad Arif was prosecuted before a Court of law for commission of offence under section 304-A, P.P.C. Introducing Riaz Muhammad and Muhammad Anwar son of Allah Din as witnesses. As the material witnesses, including the Investigating Officer, could not be examined at the trial, therefore, learned Magistrate passed order dated 29-5-2002 stopping the proceedings without recording a conviction or acquittal of the accused.

3. Respondent being father of the deceased filed a suit for recovery of compensation amounting to Rs,15,00,000 against the petitioners on the averments that it was on account of rash and negligent act of driving of petitioners' truck and dashing against the motorcycle driven by the deceased that the latter died an unnatural death, depriving ,his parents of his love, affection, association, earnings and income, which would have been otherwise a great source of satisfaction had he lived a normal life.

4. Suit was resisted by the petitioners by filing a joint written statement. Existence of accident, leading to death of the deceased, was disputed but it was admitted that Isuzu Truck bearing No,MR-0901 belonging to petitioner No,1, under the management and control of petitioner No,2, was driven by petitioner No,3. According to petitioners, on 7-8-1988, at about 9-45 a.m. It was detailed for taking official mail from P.A.F. Base Masroor to be delivered at P.A.F. Base Faisal and was driven by petitioner No,3, who was accompanied by C.P.L. Technician Mushtaque and Junior Technician Mashooq. It was further averred that when the truck reached near Saddar Police Station, an Army official travelling in a service jeep stopped the truck and handed over petitioner No,3 to a police sergeant, saying that a motorcyclist had been killed due to some accident. Involvement of petitioner No,3 was nevertheless emphatically disputed.

5. On the pleading of the parties, issues were struck and both the sides adduced evidence. Upon consideration of the evidence, learned Single Judge dismissed the suit on a negative finding on Issue No,1 i,e, whether the fatal accident was caused by a truck belonging to petitioners Nos.1 and 2 and driven by petitioner No,3. In High Court appeal, learned Members of the Division Bench reversed the judgment of the Single Judge and, on assessment of evidence and principle of life expectancy of the deceased and his average income, calculated the compensation amount at Rs,8,46,000 and decreed the suit vide judgment and decree, dated 28-8-2003. It is as against this judgment and decree that the petitioners claim leave to appeal.

6. We have heard Syed Zaki Muhammad, learned Deputy Attorney-General, who entered appearance on behalf of the petitioners. Learned counsel attempted to criticise the evidence of P.W.4 Muhammad Afzal, who appeared at the trial of the suit as eye-witness on the premise that his name did not transpire in the F.I.R. And that he did not appear for evidence before the Magistrate and was called all of a sudden by respondent in support of his suit.

7. We have carefully gone through the impugned judgment and are of the considered opinion that learned Judges of the High Court have taken pains to sift the grain from the chaff and arrived at a just, fair and equitable conclusion, which is neither unfair nor unreasonable. The fact that the truck belonged to petitioner No,1 and was functioning under the management and control of petitioners Nos.1 and 2 and that petitioner No,3 was in the employment of the aforesaid two petitioners, clearly tends to suggest that ordinarily they would be responsible for the act of their agent. It is horrifying to note that petitioner No,3 did not possess a valid driving licence to drive a heavy vehicle in the city of Karachi where the population has exceeded 12 millions. It is a glaring instance of gross negligence and serious maladministration on the part of petitioners Nos.1 and 2, who retained an unqualified person in public service as a driver on a heavy vehicle. Learned High Court has correctly and elaborately dealt with the principle of "Res ipsa loquitur" i,e, things speak themselves.

While a person may lie, things and events do not speak lie. The conclusion drawn by Division Bench of the High Court in our considered opinion is based on correct, careful and conscious appraisal of evidence and with application of mind, to which no exception can be lawfully taken. Aforesaid doctrine, already accepted by this Court in Pakistan Steel Mills Corporation Limited v. Abdul Habib 1993 SCM R 848, has rightly been relied upon by the High Court in the impugned judgment.

8. For the aforesaid facts and reasons, we are inclined to uphold the view taken by the High Court and, in the absence of any question of law of public importance arising in the circumstances, no case for grant of leave is made out. Petition for leave to appeal is, therefore, dismissed and .