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Petitioner: Dr. SHER AFGAN KHAN NIAZI VS Respondent: ALI S. HABIB and others
Court Name: Supreme Court of Pakistan Judge(s): Jawwad S. Khawaja, Anwar Zaheer Jamali, Javaid Iqbal Title: Dr. SHER AFGAN KHAN NIAZI vs ALI S. HABIB and others Case No.: Civil Appeal No, 1863 of 2005 Date of Judgment:2011-07-29 Reported As: 2011 SCMR 1813 Result: Appeal accepted
JUDGMENT
JUDGMENT JAVED IQBAL, J.---This appeal with leave of the Court is directed against order dated 6-4-2005 whereby I.C.A. Bearing NO.20 of 2004 preferred on behalf of appellant has been dismissed. 2. Leave to appeal was granted by means of order dated 13-12-2005 which is reproduced herein below for ready reference:-- "Learned counsel for the petitioner inter alia contended that in view of the judgment in the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677) reiterated in the case of Malik Shaukat Ali and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) the High Court was not justified in quashing the investigation at preliminary stage, pending against the respondents. (2) On the other hand learned counsel for respondents stated that judgments cited by petitioner's counsel are not applicable at all. Besides, no case of criminal liability has been made out against respondents in view of the facts and circumstances of the case, therefore, High Court was justified to quash the proceedings. (3) Leave to appeal is granted inter alia to examine contentions of both the sides in depth. (4) As short point is involved in this case, therefore, office is directed to fix appeal arising out of this petition in the month of March, 2006." 3. Precisely stated the facts of the case are "that Bahram Khan, a young son of Dr. Sher Afgan Khan, respondent No,3, lost his life in a road accident in Islamabad. The unfortunate incident was reported at Police Station Margalla, on 22-10-2002 at 9-00 p.m. By Ajmal Khan respondent No,2 vide report No,38. According to F.I.R. No,331, the said complainant stated that while he was present on his Motorcycle at Karachi Company , Bahram son of Dr. Sher Afgan Khan who belonged to his area met him and he was asked to accompany the former to Blue Area where he had to go for an important piece of work. Bahram Khan proceeded in his Car No,LXZ-53 and he followed him on his Motorcycle. While they were going towards Blue Area at about 7-15 p.m., opposite PIMS Hospital on
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Khayaban-e-Quaid-e-Azam, when they reached near U-turn, Wagon No,K-1985 (Peshawar) and driven by Sheraz took U-turn without stopping and struck the car of Bahram Khan on the front left portion as a result whereof the front portion of the car was completely destroyed while Bahrain Khan was seriously injured and lost consciousness. Several passengers in the wagon were also injured. He, with the help of the passersby had gathered there took Bahram Khan to the Hospital on another car where the Doctor declared that Bahram Khan has died because of the injuries received in the accident. It was stated that the accident was the result of rash and negligent act of the Driver who took the U-turn at a fast speed. A case under sections 324/37.7-g/279/427, P.P.C. Was registered. " However , on the complaint of Dr. Sher Afgan Khan Niazi to S.H.O. Police Station Margalla Islamabad, sections 322 and 420, P.P.C. Were added in the F.I.R. By means of Zimni No,11 and consequ ently a case was got registered against Mr. Fuji Cho, President of Toyota Motor Corporation of Japan (respondent No,3) besides Ali A. Habib, Managing Director Indus Motor Company Limited (respondent No,1) and Mazha r Walji, Chief Executive, Indus Motor Company Limited (respondent No,2). Being aggrieved, a writ petition seeking quashment of the F.I.R. Was filed and admitted for regular hearing on 3-12-2002 and finally sections 322 and 420, P.P.C. Registered against the respondents were declared to be without lawful authority and quashed accordingly . The ICA filed by the appellants was dismissed vide judgment impugned hence this appeal. 4. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court entered appearance on behalf of appellant and urged with vehemence that legal and factual aspects of the matter have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to support the said contention it is urged emphatically that the addition of sections 322 and 420, P.P.C. Could not have been quashed by the learned single Judge of Lahore High Court in exercise of Constitutional jurisdiction as conferred upon him under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to as the Constitution) as adequate alternate remedy was available such as the provisions as enumerated in sections 551 and 63, Cr.P.C., rule 24.7 of the Police Rules, 1934 and sections 249-A and 265-K of Cr.P.C. Which escaped the notice of learned High Court causing serious miscarriage of justice. It is pressed time and again that in view of alternate remedy as mentioned herein above, the question of invocation of the provisions as enumerated under Article 199 of the Constitution does not arise. It is urged emphatically that Bahram Khan son of Dr. Sher Afgan Khan Niazi died due to failure of the SRS Air Bag i,e, safety system installed in a car by the manufacturers which in fact was never installed which caused the death of Bahram Khan and it amounts to cheating. It is pointed out that the learned single Judge should have not quashed sections 322 and 420, P.P.C. As the investigation was yet to be commenced and it was too premature to direct the police for deletion of sections 322 and 420, P.P.C. From the F.I.R. As the question of sufficiency or insuf ficiency of incriminating material could have only been decided on the basis of evidence which was yet to be collected by the police. It is pointed out that in view of the judicial consensus the High Court cannot adopt the role of investigation agency as no such power has been conferred upon it under Article 199 of the Constitution which amounts to delivering of judgment without having gone through the evidence and on this score along the order impugned is liable to be set aside. The learned Advocate Supreme Court on behalf of appellant urged with firmness that the question of "mala fides" or "mens rea" could have only been decided on the basis of evidence which was to be led by the appellant to substantiate the accusation but no such opportunity was afforded and the factum of "mala fides" and "mens rea" were decided by the learned single Judge by assuming role of trial court which was not in consonance with the provisions as laid down in Article 199 of the Constitution. It is next contended that the learned High Court cannot decide the question of fact by making a thorough probe into the incident which aspect of the matter squarely falls within the jurisdictional domain of police such as to whether the car bearing No,LXZ-53 was supplied with SRS-Air Bag system or otherwise and as to whether the system was specially meant as a safeguard against the accidents to save the driver's life as prescribed in Toyota Owner's Manual and whether due to the failure of SRS Airbag system in the car resulted into the death of Bahram Khan amounting to criminal negligence on the part of respondents being administrative heads of the Toyota/Indus Motor Company limited. It is contended that as a result of preliminary investigation, respondents were found guilty by the police but could not be arrested due to uncalled for interference by the learned single Judge in chambers. It is argued that such proceedings could not have been quashed by the learned High Court even in exercise of its
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inherent jurisdiction as conferred upon it under , section 561-A, Cr.P.C. And what to say about Constitutional jurisdiction. It is also argued that the respondents never joined the investigation but on the contrary approached the learned High Court and all other forums available in the judicial hierarchy for the redressal of their grievances, if any, have been ignored without any rhyme and reason. 5. Mr. Khalid Anwar , learned Senior Advocate Supreme Court entered appearance on behalf of respondents while Mr. Muddassir Khalid Abbasi, learned Assistant Advocate General, Punjab remained present for State. The S.H.O. Of Police Station Margalla (respondent No,4) and Ajmal Khan (respondent No,4) appeared in person. It is mainly contended by Mr. Khalid Anwar , learned Senior Advocate Supreme Court that the F.I.R. Was got lodged with ulterior motive and mala fides in order to get maximum benefit from Toyota Motor Corporation of Japan and Indus Motor Company Limited Karachi. It is next contended that sections 322 and 420, P.P.C. Have been added without any lawful justification and it was a result of deliberation and no legal justification whatsoever was available and accordingly the same have rightly been deleted by the learned High Court in exercise of jurisdiction as conferred upon the learned single Judge in chambers under Article 199 of the Constitution read with section 561-A, Cr.P.C. As there was absolutely no probability of conviction and it was misuse and abuse of authority by the complainant being a Parliamentarian to harass the respondents. It is next contended that the respondents had never made any transaction directly with Bahram Khan son of Dr. Sher Afgan Khan Niazi (appellant) and in fact a second hand car was purchased by the deceased hence no' fault whatsoever could be attributed to the respondents. It is also contended that by no stretch of imagination. The provisions as enumerated in sections 322 and 420, P.P.C. Can be added in the F.I.R. As no unlawful act whatsoever was committed by the respondents which was never specified or clarified by the appellant. It is also contended that the factum of fraud and cheating has got its own peculiar characteristics and no evidence whatsoever has come on record or any allegation made to substantiate the factum, of fraud and cheating. It is also contended that the respondents cannot be held responsible for the installation of the airbag being not concerned with such an installation and more so they had no concern whatsoever with the manufacturing process of such airbag hence they cannot be held responsible for the failure of such a safety system. It is also pointed out that airbag does not provide 100 per cent safety and its performance depends upon certain conditions as stipulated in the Owner's Manual made available with each Automobile. It is contended that complete protection was never assured through airbag system by the Toyota Motor Corporation and in view of the nature of accident i,e, head on collision, the respondents cannot be held responsible. It is also pointed out that the death of Bahram Khan was not the result of alleged failure of SRS Airbag system. It is also mentioned that a line of distinction is to be drawn between the executive authority and technical functionaries before any responsibility could be attributed but the appellant has failed to do so. Mr. Khalid Anwar , learned Senior Advocate Supreme Court has mentioned in an unambiguous manner that the appeal is based on mala fides as Mr. Fujio Cho (President of Toyota Motor Corporation of Japan) being not concerned with the accident has been involved in a concocted story having no foundation and Mr. Fujio Cho, the President of Toyota Motor Corporation of Japan, cannot even remotely be connected with the alleged offence subsequently added in the F.I.R. It is further argued that no reliance could have been placed on the report of Moto r Vehicle Examiner qua failure of the SRS Airbag system as a highly technical, scientific and complicated process was involved which is beyond the competency of a Motor Vehicle Examiner with limited knowledge to opine on such a complicated technical issue. It is also argued that ICA was not maintainable before the High Court and has rightly been dismissed in view of the dictum laid down in case titled Nawazul Haq Chowhan v . State ( 2003 SCMR 1597 ). 6. We have carefully examined the respective contentions as agitated on behalf of appellant and for the respondents in the light of relevant provisions of law and record of the case and perused the judgments passed by learned single Judge of Lahore High Court dated 25-3-2003 and order delivered by learned Lahore High Court, (Rawalpindi Bench) dated 6-4-2005. We have decided to confine ourselves to the points which were mainly considered while granting leave. ,The basic question which needs determinatio n would be as to whether the provisions as enumerated under Article 199 of the Constitution read with section 561-A, Cr.P.C., the proceedings could have been quashed on its initial stage or otherwise? It transpired from the scrutiny of record that the case of appellant mainly revolves around the fact that due to defective manufacturing and substandard SRS Airbag system
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installed in car No, LXZ-53 Toyota Corolla driven by deceased Bahram Khan was responsible for the death of Behram Khan. Let we make it clear at the outset that the installation of SRS Airbag system was never seriously disputed by the respondents meaning thereby that SRS Airbag system was installed in car No,LXZ53 which has been described as follows : "The SRS (Supplemental Restraint system) airbag is designed to provide furthe r protection to the driver when added to the primary protection provided by the seat belt. In response to a severe frontal impact the SRS airbag works together with the seat belt to preventor reduce injury by inflating in order to decrease the likelihood of the driver's head or chest directly hitting the steering wheel. In a severe frontal impact, the sensor detects deceleration and triggers the airbag inflator . Then a chemical reaction in the inflator momentarily takes the airbag with non-toxic nitrogen gas to help restrain the forward motion of the driver . 'When the airbag inflates, it produces a fairly loud noise and releases some smoke along with the nitrogen gas. This is not harmful and does not indicate a fire, Be sure to wash off any residue as soon as possible to prevent minor skin irritation. Deployment of the airbag happens in a' fraction of a second, so the airbag must inflate with considerable force. While the system is designed to reduce serious injuries it may also cause minor burns or 'abrasions and swellings. The steering wheel hub may be hot for several minutes but the airbag itself will not be hot. The airbag is designed to inflate only once. The SRS airbag system is designed to activate in response to a severe frontal impact within the shaded area between the arrows in the illustration. The SRS airbag will deploy if the severit y of the impact is above the designed threshold level, comparable to an approximate 20 km (14 mph) collision when impacting straight into a fixed barrier that does not move or deform. If the severity of the impact is below the above threshold level, the SRS airbag may not deploy . However , this threshold velocity will be considerably higher if the vehicle strikes an object, such as a parked vehicles or sign C pole which can move or deform on impact or if it is involved in an underride collision (e.g. a collision in which the nose of the vehicle underrides or goes under the bed of a truck). For the safely of all occupants be sure to always wear seat belts. The SRS airbag is not designed to inflate if the vehicle is subjected to a side or rear impact if it rolls over or if it is involved in a low speed frontal collision. The SRS airbag system is designed only as a supplement to the primary protectio n of the seat belt system of the Driver . The driver is particularly susceptible to injury if he/she does not wear his/her seat belt. When sudden breaking or a collision occdrs, he/she may be thrown forward. To obtain further protection in an accident the driver and all passengers in the vehicle should always wear their seat belts when driving." 7. A careful analysis of the abovementioned system would indicate that it provides protection to the driver and can be considered as addition D to the primary protection provided by the seat belt. It has come on record that at the time of accident, the seat belt was in use of the deceased and prima facie the system could not work properly which aspect of the matter can only be decided on the basis of evidence which could not be collected by the police due to prolonged litigation before differen t forums and resultantly the respondents had never remained associated with the investigation. The question as to whether as to the precautionary measures enumerated in the manual itself such as any modification, strike or jolt any component, such as the steering wheel or column cover resulting in the failure of the system taken by the deceased or otherwise, needs a complete answer . The question as to whether the SRS Airbag system installed in the automobile under use by the decea sed was a typical airbag system or it was meant for a complete or general security and as to whether various conditions under which airbags are designed to function were available or otherwise, also require consideration. It also requires examination as to whether the SRS Airbag system (Supple mental Restraint System) are designed to protect complete security or otherwise? The abovementioned questions being questions of facts should have been dilated upon and decided by the forums concerned. It also trans pired from the scrutiny of record that Motor Vehicle Examiner , Rawalpindi/Islamabad has mentioned in his report dated 4-11-2002 that Airbag system could not operate properly
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and completely failed. Besides that during investigation by Islamabad Police, it could not be proved that any error was committed by the deceased culminated into the accident and the only precautionary measure which could have been taken was the use of seat belt which the deceased had fastened i,e, the only requirement of the safety of driver . It is worth mentioning that without having a proper investigation, no evidence could be collected to prima facie prove the criminal negligence on the part of respondents for installation of defective SRS Airbag system. Amounting to -fraud due to. Which Bahram Khan died in the accident and in such a scenario as to whether the provisions of sections 322/420, P.P.C. Were applicable or nor, could not have been answered. We have no hesitation in our mind to hold that the factum of "mala fides" or "mensrea" could not be proved without recording evidence or collecting incriminating material in exercise of Constitutional jurisdictio n as conferred upon High Court under Article 199 of the Constitution read with section 561-A, Cr.P.C. As mentioned herein above, there are certain questions such as the installation of SRS Airbag system is equipped with the safety condition of the driver of the car in all eventualities or it was just a safeguard and whether it remained non-functional and can be equated to that of criminal negligence or otherwise? The same cannot be answered without collection of evidence. 8. We have not persuaded to agree with the argument as advanced on behalf of the respondents that the incident falls within the jurisdictional domain of civil court for which a suit has been filed for the reasons that initiation of criminal action or F.I.R. Cannot be quashed merely on the ground that a civil suit has been filed. In this regard we are fortified by the dictum laid down in case titled Sarfraz Khan v. The State and .2 others (1996 SCMR 186). In such view of the matter the learned single Judge of the Lahore High Court (Raw alpindi Bench) should have not quashed the F.I.R. And an opportunity be afforded to the police to complete its investigation. The order has been passed in oblivion of the fact that respondents could have invoked the provisions as enumerated in sections 63 and 551 of Cr.P.C., read with rule 24.7 of the Police Rules, 1934 and sections 249-A and 265-K of Cr.P.C. It is worth mentioning that at the time of quashment of the F.I.R., the respondents had not joined the investigation and their point of view could not be obtained by the police and the question of criminal negligence due to the alleged installation of defective SRS Airbag syste m could not be answered. Besides that it is for the police or the learned trial Court to G determine the ingredients of sections 322 and 420, P.P.C. On the basis of evidence to be evaluated by it at first instance and no opinion should have been formed in exercise of Const itutional jurisdiction as conferred upon learned High Court under Article 199 of the Constitution read with section 561-A, Cr .P .C. We have already mentioned that adequate remedies were available to the respondents and hence the question of invocation of the provisions as enumerated in section 561-A, CrP.C. Should have been dealt with care and caution which could not be done. The question of adequate or alternate remedy has been discussed time and again by this Court and it is well settled by now that "the words "adequate remedy" connote an efficacious, convenient, beneficial, effective and speedy remedy . It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under this Article the remedy available under the law must be able to H accomplish the same purpose which is sought to be achieved through a petition under Art. 199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the Article. This depends on the circumstances of each case." (Gul Ahmed Textile Mills Ltd v. Collector of Customs (Appraisement) 1990 MLD 126, Pak. Metal Industries v. Assistant Collector 1990 CLC 1022, Allah Wasaya v. Tehsildar/AC 1st Grade 1981 CLC 1202 , Syed Riaz Hussain Zaidi v. Muhammad Iqbal PLD 1981 Lah. 215 Abdul Hafeez v . Chairman, Municipal Corporation ( PLD 1967 Lah. 1251 ). 9. The learned High Court will have to consider in each case the following tests to be applied to determine the adequacy of the relief:-- (i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 199. (ii) If the relief available through the alternative remedy , in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy , with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into
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account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy . (iii) In practice the following steps may be taken:- (a) Formulate the grievance in the given case, as a generalized category; (b) Formulate the relief that is necessary to redress that category of grievance; (c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent; (d) If such a remedy is prescribed the law contemplates that resort must be had to that remedy; (e) If it appears that the machinery established for the purposes of that remedy is not functioning properly , the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery . If the function of another organ is taken over, that other organ will atrophy , and the organ that takes over, will break clown under the strain; (f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralise or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199; (g) If there is such other remedy , but there is something so special in the circumstances of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199. If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense, or the delay would make the…
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