2025 PLP (C (PLC(CS))

SULTAN TANVIR AHMAD, J.

This Intra Court Appeal, filed under section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance"), is directed against order dated 26.10.2022 passed by the learned Judge-in-Chamber, whereby, Writ Petition No. 55075 of 2021 filed by the respondent has been allowed.

2. The facts, necessary to reach the conclusion of this appeal, are that on 15.02.2009 upon receiving a wireless message regarding incident of robbery, police officials including Muhammad Saif Ullah, husband of the respondent, reached at the place of occurrence. During cross-firing Muhammad Saif Ullah sustained bullet injuries and he was shifted to hospital due to his serious condition. His one kidney was badly damaged and removed. Three of the robbers were also killed. As per police report, Muhammad Saif Ullah remained admitted in various hospitals and then passed away on 08.05.2017 at District Headquarter Hospital, Okara. The respondent-widow filed an application before the police-department to declare Muhammad Saif Ullah as Shaheed. Upon failure to do the needful, she approached this Court through Constitution Petition No. 55075 of 2021. The learned Judge-in-Chamber while allowing the petition confirmed / granted the status of Shaheed to Muhammad Saif Ullah vide order dated 26.10.2022. Being dissatisfied from the same, the present Intra Court Appeal has been filed.

3. Mr. Muhammad Nasim Kashmiri, learned Additional Advocate General has submitted that while passing the impugned order, the learned Judge-in-Chamber has not appreciated that the competent authority to grant the status of Shaheed is the relevant Award Committee and in absence of declaration by the said committee, which bear mandate to declare any one as Shaheed, the assailed decision is not justifiable; that after scrutiny of the whole matter, it has been revealed that the death of the respondent's husband was not caused by injuries sustained in the incident but due to cardiac arrest and after eight (8) years of the incident, therefore, he cannot be declared as Shaheed. He has further contended that while passing the impugned order, the learned Judge-in-Chamber has not appreciated that the claim of the respondent for Shaheed package is an afterthought. Mr. Kashmiri strongly emphasized that opinion of the medical board is not definite and unambiguous as to the cause, therefore, burden shifted to the respondent-side, who failed to discharge it up to the required standard. He has stressed that the aspect of causation is not taken into account by the learned Judge-in-Chamber.

4. Mr. Amjad Hussain, learned counsel for the respondent has supported the order under challenge and he has relied upon cases titled "Ghous Bakhsh v. Government of Punjab and others" (2022 LHC 3163), "Mst. Nusrata v. Government of Pakistan through Secretary Defence, Islamabad and 8 others" (2020 PLC (C.S.) 1046) and "Firdous Shafiq v. Inspector General of Police and others" (2020 PLC (C.S.) 505).

5. We have heard the arguments and perused the record with able assistance of learned advocates of the two-sides.

6. The main reasons stated before us by the appellants for denying the claim of the respondent-widow are that (i) the report as well as opinion of medical board lack certainty as to the aspect if the death is direct result of injuries caused in the above discussed incident and (ii) the difference of period between the death and sustained injuries.

7. The record reflects that on reference dated 24.05.2018 by police-department to office of Medical Superintendent District Headquarter Hospital Okara, a medical board was constituted. The relevant part of report dated 21.06.2018 given by the medical board reads as under:- " .The record examination confirms that single kidney left was also affected and patient might have gone in ARF that was partially recovered or might not have recovered as creatinine was persistently raised and patient went into chronic renal failure and ended-up in primary dialysis and died of the disease that could have been sequelae off the primary injury." Admittedly, one kidney of Muhammad Saif Ullah was removed that was directly damaged due to firearm injuries. The above medical report does not preclude that Muhammad Saif Ullah went to acute renal failure from which he could not recover. His creatinine was persistently raised and this ended-up in dialysis. On the previous date of hearing, at the request of appellants, we allowed to have some time and to consult the high-ups. Today we have been informed that some high powered committee is required to make deliberation, which could be constituted. District Police Officer of District Okara, instead of giving any cogent answer for the delay and at his own sent the matter to another medical board. He has filed a report with following concluding part:- " .However, the requisite report of medical board has been sent to the Compensation Award Committee CPO Lahore for further proceedings. It is, therefore, requested that any kind directions passed by this Hon'ble Court will be complied with in its true letter and spirit, please."

8. We have noticed that newly constituted medical board could not reach to any different conclusion and referred to the opinion dated 24.05.2018. The said report does not preclude high probability that Muhammad Saif Ullah died of the disease that could have been sequelae of the primary injury. It is no one's case that Muhammad Saif Ullah had completely recovered. The report of DPO Okara filed before the learned Judge-in-Chamber confirms that after the incident he remained under treatment in various hospitals. Here, we would like to reproduce the relevant extract from the said report:- "Constable Muhammad Saif Ullah No. 1214 (husband of petitioner) received firearm injuries on his body by the firing of accused persons during police encounter. The injured constable was shifted to DHQ Hospital Okara and further referred to Jinnah Hospital Lahore due to his serious condition. At that time one kidney of the injured Constable was badly damaged and removed after operation. After that the injured Constable remained under treatment at various hospitals and at last he died on 08.05.2017 at about 08:30 PM in DHQ Hospital Okara ."

9. Learned Law Officer states that the opinion of medical board is not too certain and cause reflected in the death certificate dated 06.04.2018 is "cardiopulmonary arrest". He states that the respondent-widow should discharge the onus with more clarity that the death of Muhammad Saif Ullah is direct result of initial injuries. We disagree with this standpoint. Pursuer of such cause to seek declaration of Shaheed, as involved in the present case, cannot be burdened with any higher degree of proof, over and above already discharged by the respondent-widow in this case. It looks that police-department is expecting pursuer of declaration of Shaheed to discharge the burden up to the standard required in criminal cases. The approach is misplaced, therefore, repelled.

10. No one has denied before us that the case was referred to medical board being dissatisfied from initial death certificate. Making reference to the same death certificate, after the opinion of the medical board, is not justifiable. The reliance on the initial death certificate, therefore, is also unacceptable.

11. Next is the effort by appellants to have refuge of little uncertainty in the opinion of medical board. We would like to refer the approach adopted in McGhee v. National Coal Board [1972] 3 All ER. While dealing with a case of employer's liability, when honest medical evaluation could not segregate the causes to reach a definitive conclusion, Lord Wilberforce opined: " .Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers should suffer from this inherent evidential difficulty, the answer as a matter in policy or justice should be that it is the creator of the risk who, ex hypothesi, must be taken to have foreseen the possibility of damage, who should bear its consequences." (Underlining is added)

12. The learned Law Officer has also referred to Rule 12 of the Police (Award of Compensation) Rules, 1989 and argued that the present case does not fall within its scope due to the difference of time period between incident and the death of Muhammad Saif Ullah. The rule at the relevant time was as under:- Rule "Existing" Officers/officials killed in encounters including death in bomb blasts, riots, watch and ward duties or terrorist activities but not including death in accident, shall be awarded compensation as under: (12-a) of Rules (1989)/2004/2008/2015 Ranks of Shuhada Amount in rupees Price of house Total Constable-head constable Rs.04.00 Million Rs.01.00 million Rs.05.00 million ASI-SI Rs.05.00 million Rs.02.00 million Rs.07.00 million Inspector-DSP Rs.06.00 million Rs.03.00 million Rs.09.00 million SP-SSP Rs.08.00 million Rs.04.00 million Rs.12.00 million DIG and above Rs.10.00 million Rs.05.00 million Rs.15.00 Million (Emphasis Supplied)

13. We see no ambiguity in the above rule, which covers officers / officials killed in encounters and also includes the officials killed during watch and ward duties. Muhammad Saif Ullah received injuries during the cross-firing between the robbers and the police. As a result of the same his one kidney was removed and then he remained admitted in various hospitals for treatment. As per the above discussed medical report, his creatinine was persistently raised. He also underwent dialysis and thereafter, he could not survive. The act of bravery of Muhammad Saif Ullah is an admitted fact. He was buried with full honors by the appellant-department. No intervening cause has been highlighted by the learned Additional Advocate General or the representative of police department, to construe that the chain of causation is not intact. The above quoted rule does not make any distinction between a death on the day when the incident took place from death that has taken place after passage of some duration of the incident. In case titled "Asad Imran and another v. Inspector General of Police, Punjab Lahore and others" (2023 PLC (C.S.) 1013), when police-department denied Shaheed package to a pursuer, this Court held that if rules are capable of bearing a reasonable interpretation favourable to the employee then such interpretation should be preferred:- "

8. It is well-settled principle of law that if the rules are capable of bearing a reasonable interpretation, favorable to the employee, then that interpretation should be preferred. When a law requires a thing to be done in a particular manner, it must be done in that manner alone and not otherwise. Reference is made to Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086), Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another (2008 SCMR 1148) and Secretary Finance Division, Islamabad v. Muhammad Zaman, Ex-Inspector, I.B., Islamabad and others (2009 SCMR 769). In the case of Muhammad Zaman supra, the Hon'ble Supreme Court ruled as under:- "3 .In the case of Postmaster- General, Eastern Circle (E.P.) Dacca and another v. Muhammad Hashim PLD 1978 SC 61, it was held that if the Rules were capable of bearing a reasonable interpretation favourable to the employee then that interpretation should be preferred. We do not find any legal infirmity in the judgment of the Service Tribunal. This is not a fit case for grant of leave to appeal."

14. The learned Sindh High Court in C.P. No. D-570 of 2022 (2022 SHC 228) adopted liberal approach while construing legislation of the Province of Sindh vis- -vis Shaheed package or declaration of Shaheed, for the reason that the same is a beneficial legislation. Reference to this case is significant as in the said case death of Shaheed took place after some passage of time of sustaining injuries. It will also be beneficial to reproduce the following extract:- "

8. Above quoted rule has been couched in a simple and plain language and is free of any ambiguity and makes it clear that if the official / officer of police is killed in encounters including death in bomb blasts, riots, watch and ward duties or terrorist activities, he is entitled to be declared as 'Shaheed' with all the benefits attached to such status. In the instant case, the petitioner's husband was admittedly on watch and ward duty when badly injured, while being in uniform which fact has been admitted. It is well settled that if a police official dies during the performance of watch and ward duties, the said official is entitled to a grant of compensation in the category of "Shaheed" under the beneficial legislation. The denial of according the status of 'Shaheed' to the petitioner's Husband is not sustainable as the said order of early retirement, fails to take into account the spirit of the law, which is to confer such status on police officers/officials who are killed in the performance of their functions in such eventualities as envisaged by the aforesaid law that includes the loss of life during watch and ward duty." (Emphasis Supplied)

15. No case requiring any interference in the well-reasoned order of the learned Judge-in-Chamber is made out. The titled appeal is devoid of merits, therefore, dismissed. No order as to costs. UN/P-7/L Appeal dismissed.