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Petitioner: Government of Sindh through Secretary, Home Department and others VS Respondent: Muhammad Sarwar and 11 others
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Abdul Mobeen Lakho Title:Government of Sindh through Secretary, Home Department and others vs
Muhammad Sarwar and 11 others Case No.: High Court Appeal No. 369 of 2017 Date of Judgment:2022-04-01 Reported As: PLD 2023 Sindh 154 Result: Appeal dismissed Judgment ORDER AQEEL AHMED ABBASI, J. Instant High Court Appeal has been filed against judgment dated 23.06.2017 and decree dated 10.07.2017 passed by the learned Single Judge of this Court in Suit No.74 of 1991, whereby, the said suit filed by the respondent No.1 against the appellants for the recovery of Rs.50,00,000/- under the Fatal Accidents Act, 1855, has been decreed against the appellants jointly and severally along with 10% markup from the date of institution of the suit till realization of the amount. 2. The appellants Nos.1 to 6 are represented by Syed Aley Maqbool Rizvi, Addl. Advocate-General, Sindh along with Mr. Jawwad Dero, Addl. A.G. Sindh and Mr. Ziauddin Junejo, Asst. A.G. Sindh, and Appellants Nos. 8, 9, 12 and 13 are represented by Mr. Anwar Alam Subhani, Advocate, whereas, Mr. Nasir Maqsood, Advocate along with Mr. Qaiser Jawed, Advocate is representing the respondent. Syed Aley Maqbool Rizvi, Addl. Advocate-General, Sindh, has vehemently argued that the suit filed by the respondent under the provisions of Fatal Accidents Act, 1855 was not maintainable, as according to him, the cause of death of deceased Muhammad Shakeel was not because of any accident and/or due to negligence of the appellants, therefore, not covered under the Fatal Accidents Act, 1855. According to learned Addl. Advocate-General, deceased Muhammad Shakeel was lawfully arrested by the police in a criminal case, however, during police custody, he died due to natural death. It has been further argued by the learned Addl. Advocate-General Sindh that as per medical report of the deceased, there were no marks of torture, nor in the medical report, it was suggested that the cause of death of the deceased was on account of torture and maltreatment by the police, whereas, a Criminal Complaint No.419 of 1990 was also registered against the
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appellants for alleged murder of the deceased, in which, the appellants have been acquitted and as per his information, no acquittal appeal has been filed, therefore, all the allegations levelled against the appellants relatable to the death of deceased Muhammad Shakeel stand falsified pursuant to the judgment passed in the criminal case. It has been further contended by the learned Addl. Advocate-General Sindh that the learned Single Judge while passing impugned judgment and decree has failed to take into consideration the above factual and legal position as emerged in the instant case, nor appreciated that in the absence of any evidence or material, which could establish that the cause of death of the deceased, namely, Muhammad Shakeel is directly attributable to the appellants, the appellant could not be held responsible for his death, merely for the reason that the deceased was in their custody, whereas, according to learned Addl. A.G. Sindh, the deceased Shakeel was otherwise in lawful custody of the police pursuant to an FIR registered under Section 13-D. According to learned Addl. A.G. Sindh, the provisions of Fatal Accidents Act, 1855, are not attracted in the instant case, therefore, the suit filed by the respondent and the relief claimed therein for recovery of an amount towards compensation in the sum of Rs.50,00,000/- was misconceived and not maintainable. Learned Addl. A.G. Sindh also expressed his serious concern on the findings as recorded by the learned Single Judge while holding that death of the deceased Muhammad Shakeel in police custody is covered under Fatal Accidents Act, 1855, and if, such judgment and decree is upheld, than every custodial death will attract the provisions of the Fatal Accidents Act, 1855, and in each and every case, the police officials will be held responsible and liable to pay the amount of compensation to the legal heirs of the deceased, who may die in police custody even due to natural death. Per learned Addl. Advocate-General, it will render the relevant provisions of Pakistan Penal Code, Criminal Procedure Code as well as the provisions of Police Act relating to the arrest of an accused person, as redundant and inoperative on the one hand, but will also have an adverse effect on the functioning of the police and other law enforcement agencies to prevent and curb the crime in the society by making arrest of the accused person(s) required in a cognizable offences. While concluding his arguments, the learned Addl. Advocate-General Sindh has submitted that if, this Hon'ble Court is not convinced, with the above arguments advanced on behalf of the appellants, then the amount of compensation directed by the learned Single Judge to be paid to the legal heirs of the deceased, namely, Muhammad Shakeel may be reduced, and the said amount of compensation may not be treated as an amount under the Fatal Accidents Act, 1855, and may be given to the respondent on compassionate grounds, as according to learned Addl. Advocate-General Sindh, if the impugned judgment and decree is upheld, it may constitute a precedent for making payment of compensation in all the cases of custodial death, irrespective of the fact that such death is attributable to the act, omission or negligence on the part of the police or any official of law enforcement agencies. It has been prayed that either the impugned judgment and decree may be set aside or alternatively, modified in the aforesaid terms. Mr. Anwer Alam Subhani, Advocate adopted the arguments of learned Addl. Advocate-General, Sindh. 3. Conversely, Mr. Nasir Maqsood, learned counsel appearing for the respondent, has vehemently opposed the contention of the learned Addl. Advocate-General, Sindh and controverted the arguments relating to maintainability of the suit as well as on the merits of the case, and submitted that in view of un-rebutted facts relating to illegal arrest of the deceased, namely, Muhammad Shakeel by the CIA officials, and his death in police custody because of torture and maltreatment by the police the case falls within the purview of Fatal Accidents Act, 1855. Per learned Counsel, the record shows that appellants committed criminal negligence for having failed to provide medical treatment to the deceased by immediately taking him to the nearby hospital when his condition started to get worse on account of torture by the Police officials at CIA Centre. Learned counsel for the respondent submitted that objection raised by the learned Addl. Advocate-General, Sindh with
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regard to maintainability of the suit and limitation in terms of Section 42 of the Police Act, 1861, under the facts and circumstances of the instant case. is totally misconceived and baseless, as according to learned counsel, the custodial death of deceased, namely, Muhammad Shakeel, who was unlawfully arrested and detained by the CIA officials and was brutally tortured while hanging him with rod from the roof when his hands were tied-up, which resulted in his death, is fully covered under the Fatal Accidents Act, 1855. Learned counsel for the respondent, after having read out the relevant portions of the impugned judgment passed by the learned Single Judge in the instant case, submitted that the learned Single Judge, after having taken stock of all the relevant facts and the evidence available on record, including the Postmortem Report dated 26.04.1990 prepared by Dr. Khalid Ansari, MLO of Jinnah Postgraduate Medical Centres Judicial Inquiry Report as well as ocular evidence produced by the respondent, after framing the issues and recording the evidence of both the parties, has been pleased to pass judgment and decree after dealing with all the legal objections, as raised by the learned Addl. Advocate-General on behalf of appellants in the instant High Court Appeal, relating to maintainability of the suit and also the applicability of the provisions of the Fatal Accidents Act, 1855, while placing reliance on numbers of judgments of the Superior Courts. According to the learned counsel for respondent, the respondent has successfully discharged the onus to prove the fact that the deceased Muhammad Shakeel has died because of brutal torture by the CIA officials while in police custody. According to learned Counsel, Section 1 of the Fatal Accidents Act, 1855, provides that whenever the death of a person shall be caused by wrongful act, neglect or default, and the neglect or default is such as would (if death had not ensued), entitled the party injured to maintain an action and to recover damages in respect thereof, the party who would have been liable if death had not ensued shall lie liable to an action of suit for damages, notwithstanding the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. According to learned counsel for the respondent, Section ' 1' further provides that every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative or the person deceased; and in every such action the Court may give such damages as it may think, proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the cost not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct. It has been further contended by the learned counsel for respondent that the contentions of the learned Addl. Advocate-General, Sindh that since the appellants have been acquitted in the criminal case on the same charges, therefore, the suit for recovery of an amount of Rs.50,00,000/- towards compensation/damages filed under the Fatal Accidents Act, 1855, was also liable to be dismissed, is misconceived, as according to learned counsel for the respondent, the criminal proceedings or the decision therein, has no bearing, or effect on the civil proceedings for the simple reason that there are different parameters for determination of criminal and civil liability. Moreover, according to learned counsel for the respondent, the scope of criminal case was to the extent of punish accused if charge is established beyond reasonable doubt, whereas, scope of civil suit seeking damages or compensation under Fatal Accidents Act, 1855, relates to determination of civil liability in terms of money. Moreover, according to learned Counsel, nothing was brought in evidence before the learned Single Judge in this regard in the above suit for consideration or decision thereon by the appellants, therefore, this argument at this stage of the proceedings in the instant High Court Appeal is otherwise misconceived and of no relevance. Learned counsel for the respondent further submitted that the appellants have miserably failed to dislodge the claim of the respondent in the suit, nor any
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evidence or material was produced, which could otherwise absolve the appellants from their joint liability to make the payment of compensation/damages to the legal heirs of the deceased, namely, Muhammad Shakeel, who has admittedly died in police custody, whereas, as per evidence produced in the shape of ocular and medical reports, cause of his death was brutal torture by the police officials. In support of his contention, learned counsel for the respondent has placed reliance on the following reported cases: - 1. Samiullah Khan Marwat v. Government of Pakistan [2003 SCMR 1140]; 2. Punjab Road Transport Corporation v. Zahida Afzal [2006 SCMR 207]; 3. Karachi Transport Corporation v. Muhammad Hanif [2009 SCMR 1005]; 4. Islamic Republic of Pakistan Through Ministry of Railways v. Abdul Wahid [2011 SCMR 1836]; 5. Government of NWFP through Collector, Mardan and others v. Saidur Rahman [2004 CLC PESHAWAR 1682]; 6. Rahamat Ali v. Emperor [AIR 1927 Lahore 634]; 7. Hira Das v. Shiromani Gurdwara Prabandhak Committee and others [AIR 1932 Lahore 147]; 8. Amar Singh v. Bhagwan Das and others [AIR 1933 Lahore 770]; 9. Joshi Ram Krishan v. Mst. Bukmini Bai [AIR (36) 1949 Allahabad 449]. 4. We have heard the learned counsel for the parties, perused the record with their assistance and have also gone through with the impugned judgment passed by the learned Single Judge as well as the evidence produced by the parties in the suit. Perusal of the pleadings of the Suit No.74/1991 tiled for the recovery of an amount of Rs.50,00,000/- under the Fatal Accidents Act, 1855 by the respondent, namely. Muhammad Sarwar, who is father of the deceased Muhammad Shakeel shows that the deceased Muhammad Shakeel died at C.I.A. Centre on 25.04.1990 while in police custody, which fact has not been disputed by the appellants either in the written-statement filed in the suit or before this Court in the instant High Court Appeal, however, there seems dispute with regard to the cause of death, which according to the respondent, was on account of brutal torture and the injuries inflicted by the police officials upon the deceased Muhammad Shakeel, during police custody, whereas, according to the appellants, deceased died because of natural death, whereas, the injuries found on the body of deceased, as per Postmortem Report, were not so fatal, which resulted in the death of Muhammad Shakeel. It has been further noted that the amount of Rs.50,00,000/- as claimed by the respondent in the suit towards compensation/damages was neither seriously disputed by the appellants before the learned Single Judge in the above suit, nor any such objection has been raised by the learned Addl. Advocate-General, Sindh, Syed Aley Maqbool Rizvi or Mr. Anwar Alam Subhani, learned counsel for the appellants. However, the learned counsel representing the appellants have mainly raised objection with regard to maintainability of the suit under the Fatal Accidents Act, 1855 on the ground that the custodial death of an accused person is not covered under the definition of "actionable wrong" as provided under Section 1 of the Fatal Accidents Act, 1855. The learned Single Judge of this Court, keeping in view the pleadings in the suit, on 22.12.1991 formulated following issues:- 1. Whether the deceased Ch. Muhammad Shakeel died a natural death or his death was caused on account of wrongful act, of assault and torture in CIA Centre as by Defendants Nos.7 to 14 on 26.04.1990 while in custody of Defendants Nos. 7 to 14? 2. Whether the Defendants are liable to pay the damages / compensation to the Plaintiff and another legal heir jointly and severally? If so, to what extent? 3. Whether the Plaintiff is entitled to cost and interest / profit, as claimed? 4. What other relief or reliefs this Hon'ble Court may deem fit? 5. After recording the evidence of the parties, the Issue No.1, as referred to hereinabove, has been decided by the learned Single Judge while holding that the deceased Ch. Muhammad Shakeel did not die a natural death, but the same was caused by the wrongful act of the appellants
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[Defendants Nos. 7 to 141, when the above deceased person was in their custody on 25.04.1990 and expired at midnight of 26.04.1990. Similarly, the issues Nos.2 and 3 as referred to hereinabove have also been decided by the learned Single Judge in affirmative while holding that the defendants in the Suit are liable to pay the amount of compensation/damages as claimed in the Suit together with 10% markup from the date of institution of the Suit till realization of the amounts. It is pertinent to note that no issue regarding maintainability of the Suit under the Fatal Accidents Act, 1855, was either framed by the learned Single Judge in the Suit nor it has come on record that the appellants had proposed any issue to this effect or raised any specific objection with regard to maintainability of the Suit, as argued by the learned Additional Advocate General Sindh before us in the instant High Court Appeal, therefore, there has been no separate finding or decision by the learned Single Judge in the impugned judgment. Learned Single Judge, after having examined the facts and the evidence produced by the parties in the suit, including ocular as well as documentary evidence in the shape of medical report and the detailed report of Judicial Inquiry conducted pursuant to Court's order for ascertaining the cause of death, has been pleased to pass the judgment and decree in the aforesaid terms. Before we may proceed to record our finding as to merits of the case, we may observe that the arguments as advanced by the learned Additional Advocate General Sindh on behalf of the appellants to the effect that since the appellants have been acquitted in the criminal case registered against the appellants pursuant to a direct complaint filed by the respondents on the allegations that the deceased Muhammad Shakeel was killed by the police officials while in their custody, therefore, the Suit filed by the respondents containing the similar allegations was not maintainable, is misconceived in fact and law for the reason that admittedly, Muhammad Shakeel has died while in custody of the police, however, the cause of death is being disputed by the appellants, who have failed to discharge the onus to prove that the deceased, who a young man of 24 years of age and had no medical condition, suddenly died in their custody. Circumstances further reflect that police was supporting the accused persons as no FIR of the incidence was registered and the therefore, direct complaint was filed, however, in view of faulty police investigation and medical report, it appears that the charge of murder could not be established beyond reasonable doubt, which resulted in their acquitted in criminal case. However, the scope of civil pleadings and the relief sought in the Suit filed by the respondents, claiming compensation and damages under Fatal Accidents Act, 1855, is different and distinct from the scope of criminal proceedings pursuant to direct complaint filed by the respondents against the police officials. Moreover, it is settled legal position that where an aggrieved party has two different remedies by way of filing criminal case and/or to file a Civil Suit before Court of civil jurisdiction, both such cases can proceed simultaneously, and would not affect the merits of the other case, which has to be decided independently on the basis of evidence produced and the relief claimed therein as per law. It is also settled legal position that the parameter of establishing a criminal charge against accused person(s) and standards of appraising evidence and deciding a criminal case are different from the parameters of establishing a prima-facie case as per pleadings, standard of appraising evidence and deciding a case under civil jurisdiction. Decision in a criminal case in such circumstances, would not affect the proceeding, before a Civil Court, whereas, proceedings before a civil court, in appropriate cases, can be given preferential consideration over proceedings in criminal proceedings because of stringent standards of appraising evidence in civil proceedings. Reliance in this regard can be placed in the case of Karachi Transport Corporation v. Muhammad Hanif [2009 SCMR 1005). 6. We would now dilate upon the merits of instant High Court Appeal, while examining the finding of the learned Single Judge on the aforesaid issues, in the light of evidence produced by the parties in support of their claim(s) in the Suit. Record shows that the plaintiff in the suit in support of his claim of compensation/damages under the Fatal Accidents Act, 1855, against the defendants, and to
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establish that Muhammad Shakeel has not died a natural death, as he died in police custody because of assault and torture in CIA Centre, examined himself as PW-1 and also produced various documentary evidence, which has been duly exhibited before the learned Single Judge in the above suit. Perusal of the record and the evidence reveal that respondent No.1 filed his affidavit-in- evidence, wherein, he has stated on oath that the incident occurred on 25.04.1990, according to which, defendant No.7 along with defendants Nos. 8 to14 (in the suit) at about 05:00 P.M. caught hold of deceased Muhammad Shakeel at Jodia Bazaar near Khori Garden without any lawful reason and legal justification, who was purchasing some material for his shop and, thereafter, he was taken to CIA Centre where he was mercilessly tortured and assaulted violently for more than five hours constantly and consequently the deceased got fatal injuries and died on account of Wrongful acts of the police officials. The above witness also deposed that unnatural and brutal death of the deceased Muhammad Shakeel at the hands of the police officials was on account of his illegal arrest, torture, negligence, default, malfeasance and carelessness and harsh treatment of the deceased by the police officials, which fact was duly reported in the Newspapers. To support the above averments copies of the Newspapers clippings as Exh.P/1 to Exh.P/16, copy of death certificate issued by the Medical Officer of JPMC as Exh.P/17 were produced in Court. According to the deposition of the above witness, the police officials, in order to justify the wrongful and illegal arrest and confinement of the deceased in CIA lockup lodged an FIR No.149/1990 at about 2340 hours under section 13-D of Arms Ordinance at Mithadar Police Station, whereas, the police officials, defendants in the suit, instead of taking the deceased Muhammad Shakeel to the hospital, and informing his family started tempering with the entry and exit records and ultimately the deceased was taken to JPMC where he was finally pronounced dead. Inquest report was manipulated in collusion with SIP Fakharuddin of Saddar Police Station, which was produced as Exh.P/19, wherein, injury column was silent about any injury upon the deceased, which ultimately resulted in his death. The above witness further deposed that thereafter, on the protest of respondent No.1 and his relatives, inquest report was again prepared under the supervision of Magistrate Jethannand in presence of SIP Fakhruddin, which proved that death of Muhammad Shakeel was caused by torture and harsh beating, detail of which is reproduced hereunder: - I. There was contusions on back at gluteal region. II. Bluish in colour 2 x 1 inches on each side extending right side towards the back at illicient. III. There was abrasion on right side elbow 1-1/2" IV. There was contusion at both right and left feet. V. There was abrasion on back of neck 4-1/2" x 4-1/2". VI. There were also abrasions on right and left knee each about 3/4% x 1/2" The deposition of the above witness further reveals that postmortem was also conducted, whereafter, Chemical Examiner and Pathological reports were also taken, which corroborated the factum of the death of the deceased on account of injuries by torture and beating at the hands of the police officials during police custody. The final revised inquest report dated 26.04.1990 was also produced as Exh.P/22. Since, no FIR of the incident was registered, however, a Criminal Complaint No.607/1990 was filed before the District Magistrate, South, whereas, the letters were also written to the high officials of police as well as to the Prime Minister to look into the matter and to take legal action against the culprits in accordance with law. In support of all such assertions, original tele- printer message dated 02.05.1990, letter dated 14.5.1990, reply from Prime Minister Secretariat dated 7.5.1990 and reply from President Secretariat dated 6.5.1990 and memo of Criminal Complaint No.607/90, were produced as Exh. P/23, P/23A to P/23D before the learned Single Judge in the above suit. Since the police was not cooperating, therefore, order for judicial inquiry was passed by the defendant No.1 in the suit in order to ascertain the cause of death of deceased Muhammad Shakeel and to fix the responsibility on the culprits. The judicial inquiry was conducted by ADM
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South Muhammad Naseer Jamali, who submitted report to the defendant No.1 i.e. Secretary, Home Department, Government of Sindh, in the suit on 20.06.1990, wherein, it was reported that the injuries inflicted upon the deceased at CIA Centre led to his death, however, such report was not intimated to the family members of the deceased, therefore, respondent No.1 moved an application under section 151, C.P.C. bearing C.M.A. No.447/1997, seeking direction…
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