P L D 1986 Karachi 489 (PLP)
QAISER ALI AND 2 OTHERS‑Plaintiffs Versus KARACHI ROAD TRANSPORT CORPORATION‑Defendant
| Citation | P L D 1986 Karachi 489 (PLP) |
| Forum / Court | ‑‑ S. 1‑Death through rash and negligent driving‑Suit for damages Locus standi to sue‑Bus through which death was caused was admittedly owned by defendant and driver of bus being employee of defendant, suit filed by wife, husband, parents and children for whose benefits such suit was filed, held, would have locus standi to file suit.‑Locus standi. |
| Bench Members | Tanzil‑ur‑Rehman, J |
| Parties | QAISER ALI AND 2 OTHERS‑Plaintiffs Versus KARACHI ROAD TRANSPORT CORPORATION‑Defendant |
| Primary Law | (k) Fatal Accidents Act (XIII of 1855), (l) Fatal Accidents Act (XIII of 1855), (j) Islamic Jurisprudence |
Q1: What are the key laws and sections cited in P L D 1986 Karachi 489 (PLP)?
This judgment primarily cites: (k) Fatal Accidents Act (XIII of 1855), (l) Fatal Accidents Act (XIII of 1855), (j) Islamic Jurisprudence as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1986 Karachi 489 (PLP)?
The case was heard and decided by the ‑‑ S. 1‑Death through rash and negligent driving‑Suit for damages Locus standi to sue‑Bus through which death was caused was admittedly owned by defendant and driver of bus being employee of defendant, suit filed by wife, husband, parents and children for whose benefits such suit was filed, held, would have locus standi to file suit.‑Locus standi. bench comprising: Tanzil‑ur‑Rehman, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1986 Karachi 489 (PLP) (QAISER ALI AND 2 OTHERS‑Plaintiffs Versus KARACHI ROAD TRANSPORT CORPORATION‑Defendant). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Dates of hearing : 18th, 27th, February; 21st and 8th April, 1986.
Headnotes / Summary
(a) Fatal Accidents Act (XIII of 1855)‑ ‑ S. 1‑Limitation Act (IX of 1908), S. 12 & Art. 21 ‑ Suit for recovery of damages under Fatal Accidents Act ‑ Death of a person through rash and negligent driving ‑ Period of limitation‑Computation of period ‑Periad of limitation for a suit under Fatal Accidents Act, would be one year‑‑Such period, held, would run from date of death of person killed‑Date of death would be excluded for computing period of one year ‑ Last day of limitation being holiday, suit could be filed on following day. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑
0. XXXII, Rr. 1 & 3‑Suits by or against minors‑Requirements -Suit by minors is to be bled by next friend‑Suit against minor defendant is to be filed through a guardian ad /item‑Suits by minors filed through mother, father or grandfather, held, would be proper and competent. (c) Fatal Accidents Act (XIII of 1855)‑ ‑‑ S. 1‑Death through rash and negligent driving‑Suit for damages Locus standi to sue‑Bus through which death was caused was admittedly owned by defendant and driver of bus being employee of defendant, suit filed by wife, husband, parents and children for whose benefits such suit was filed, held, would have locus standi to file suit.‑[Locus standi]. (d) Fatal Accidents Act (XIII of 1855)‑ ‑‑ S. 1‑ Qanun‑e‑Shahadat Order (10 of 1984), Art. 118‑Death by rash and negligent driving‑Onus of proof‑Onus of proof, held, would lie on a person who asserts a claim and wants Court to believe same‑Hadith of Prophet (s. a. w.) would enjoin proof on person who is claimant and oath on person who repudiates such claim. Seethamma and others v. Benedict D'sa and others A I R 1967 Mys. 11; Mariambai and others v. M. M. Isphani Ltd. and another P L D 1965 (W. P.) Kar. 59 and Ghulam Muhammad v. The Crown P L D 1953 Lah. 260 ref. (e) Fatal Accidents Act (XIII of 1855)‑ ‑ S. 1‑Qanun‑e‑Shaha4at Order (10 of 1984), Art. 118‑Rash and negligent driving‑Plea of bursting of tyre repelled‑Fact of such bursting of tyre, held, was to be proved by defendant‑Non‑produc tion of report of Motor Vehicle Inspector as well as witness from Police Department by defendant, about cause of accident, held, would negative plea of bursting of tyre‑Investigation by Police about cause of death of deceased having not been challenged and fact of such death by rash and negligent driving of bus owned by defendant's driver, having been proved by plaintiffs and not con troverted by cogent evidence by such defendant would prove such death having been caused by rash and negligent driving of bus. (f ) West Pakistan Motor Vehicles Ordinance (XIX of 1965)‑ ‑‑ S. 67(2)‑Fatal Accidents Act (XIII of 1855), S. 1‑Entitlement to compensation‑Compensation payable for death of, or injury to, a passenger, held, would be 1n addition to any sum which a person was entitled to receive as compensation under policy of insurance in accordance with provisions of S. 67 of Motor Vehicles Ordinance, 1965 ‑ Claimants having already received compensation under Ordinance 1965 would not be barred from "pursuing their remedy under Fatal Accidents Act as well although compensation received by plaintiffs under Ordinance 1965 would have bearing on the quantum of compensation to be awarded to them under Act XIII of 1855. Muhammad Younus Khan and 3 others v. Karachi Road Transport Corporation and another 1984 C L C 2830 ref. (g) Fatal Accidents Act (XIII of 1855)‑ ‑‑ S. 1‑Normal expectancy of life, determination of‑Determination of expectancy of life, held, would largely depend on life conditions of deceased and his family background ‑Factors of general physique and ratio of death in pedigree of deceased and ages of persons alive in family would be a guiding factor for determining life expectancy Evidence for determination thereof being scanty Court fixed such expectancy to be sixty years. Abdul Kadir v. Mir Ashraf Ali Khan and 2 others 1982 C L C 110; Miss Shamsun Nissa and another v. Karachi Road Transport Corporation and 3 others P L D 1975 Kar. 913; Mt. Koshalia and another v. Riaz‑ud‑din and others A I R 1936 Lah. 362; Iftiqar Hussain and another v. Karachi Electric Supply Corporation P L D 1959 Kar. 550; Ursulna v. Orient Airways Limited and others P L D 1960 Kar. 712; Bashir Begum and others v. Muhammad Ali Premjee P L D 1960 Kar. 785; Manmatha Nath Kuri v. Mokhlesurehman P L 1963 Kar. 90; Nusrat Ali v. U. K. Construction Company and others P L D 1963 Kar. 844; Kulsoom v. Jalil Ahmed Khan and others P L D 1964 Kar. 72; Muhammad Raza Khan v. Pakistan P L D 1965 Kar. 244; Din Muhammad and 3 others v. Faqir Muhammad and 2 others P L D 1970 Lah. 442; Miss Shamsunnka and others v. Karachi Road Transport Corporation P L D 1975 Kar. 914; Mr. Gohar v: Muhammad Hanif and others P L D 1975 Kar. 432; Rickaya Bai and S others v. Secretary of Defence, Government of Pakistan, Islamabad and 4 others P L D 1976 Kar. 139; Nusrat Jehan v. Karachi Metropolitan Corporation and 1 others P L D 1980 Kar. 158; Muhammad Siddique and others v. Gul Majeed and 2 others P L D 1980 Kar. 78; Mrs. Dianat Fatima and another v. Mir Abbas Khan and 2 others P L D 1980 Kar. 271; .41st. Warkherna and 4 others v. Abdul Ra.he.‑d and 2 others 1981 C L C 944 ; Jaffar All and another v. Sind Road Transport Corporation and another 1981 C L C 1106; Gul . Bano and 4 others v. Muhammad Ramzan and others 1982 C L C 1 120 ; Mrs. Asnra Ibrahim and 2 others v. S. R. T. C. and another P L D 1932 Kar. 236; Adam Hussain and others v. Muhammad Ayub 1983 C L C 2054; Mst. Zainab Bibi and others v. Muhammad Saeed and others 1983 C L C 1321 ; Barkat Ali Khan and others v. Karachi Electric Supply Corporation Limited P L D 1983 Kar. 453 and Nimmi Francis (Mrs ) and others v. Muhammad Saeed Qureshi and another 1982 C L C 1703 ref. (h) Fatal Accidents Act (XIII of 1855)‑ ‑-S. 1‑Dependency of claimants on deceased‑Minor's dependency as well dependancy of wife and parents of deceased was worked out by Court with reference to their respective ages and expectancy of life of deceased with reference to amount which deceased would have been able to spend on such dependants after deduction of his personal expenses. Malik Raza Khan v. Pakistan P L D 1965 Kar. 244; Manmatha Nath Kuri v. Muhammad Mokhlesur Rahman and another P L D 1963 Dacca 290; Muhammad Nawaz and 4 others v. Altaf Rasul and 2 others P L D 1985 Kar. 353; P L D 1969 S C 565; Mst. Zebunnisa and others v. Sind Road Transport Corporation and another 1982 C L C 1228 and Mst. Qudsia Begam v. Younus and 4 others P L D 1973 Kar. 636 ref. (i) Islamic Jurisprudence‑ ‑‑‑Transfer of property in Islam through 'sale' and `gift' elaborated‑West Pakistan Muslim Personal Law (Shariat Applica tion) Act (V of 1962)‑Succession‑"Estate of deceased" defined Damages to be awarded under Fatal Accidents Act, not estate of deceased‑Islamic Law of inheritance in all its details not applicable to compensation cases arising from accidental death‑Distinction between Diyat and Fatal Accidents Act highlighted. Transfer of property under Islamic Law is of two kinds or forms : One is voluntary 'and . the other is involuntary Transfer of property that takes place voluntarily is either with or without consideration. Transfer of property with consideration is generally called "sale", and without consideration in one's own lifetime is called Hiba (gift) and if it is made effective after one's death it is called Wassiryat (will). The other kind or form of transfer, being the involuntary devolution of property by which the estate of a deceased person gets automatically transferred to his heirs, is called "inheritance". "Estate of the deceased" may, thus, be defined as anything that belongs to a man or woman in his or her lifetime and what he or she leaves behind on his or her death, whether it be the movable or immovable properties or rights pecuniary in nature. Thus, the estate of deceased is that property or proprietary rights, which the deceased leaves behind after him. That is why it is called Wirtha, or Tarika, which literally means 'balance' or `left over'. If a person dies, during the course of his employment and his heirs are paid a compensation by his employer or a person dies of an accident during his journey by rail or air due to negligence of the air company or the railways and his heirs are compensated under law of the land, or an innocent person is killed in riot the Government pays some compensation to tile heirs, or a person is killed on account of rash and negligent driving of a motor vehicle the owner/driver is required to pay damages to the legal representatives of the deceased. In all these cases the amount received by the heirs may not be regarded as the estate of the deceased, in its strict sense, in the eye of Shari'ah. Thus, the Islamic Law 6f inheritance, in all its details, is not to be applied. It may further be stated that, the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) provides that notwithstanding any custom or usage, in all questions regarding succession whether testate or intestate the rule of decision subject to the provisions of any enactment for the time being in force; shall be the Muslim Personal (Shariat) in cases where the parties are Muslims". The damages to be awarded under the Fatal Accidents Act, 1855, cannot be held to be the estate of the deceased as the same cannot be said to have been left behind by the deceased. Apparently it was non-existent at the time of his death. The provisions of Islamic Law of Succession cannot, therefore, be made applicable to it: At page 96 of Khutbat-i-Bahawalpur by a renowned and pious Muslim Scholar, Dr. Muhammad Hameed-Ullah, wherein the learned author has quoted a directive of the Holy Prophet Muhammad (Sallalaho Alaihi Wasallam). In a matter of blood money the Qazi, following the custom prevailing in the Arab Society, had awarded the blood money of the deceased to male heirs (Asbat) only i.e. son, father, etc. On coming to know of this, the Holy Prophet (Sallalaho Alaihi WaSallam) wrote to Hazrat Zahak (bin Sufyan), the then Governor of Yaman that the widow of the deceased should also be paid in accordance with her share in the inheritance. The tradition also finds place on Sunan Abu Da'ud, as Tradition No. 1163 wherein it is narrated by Said that Umar bin Khattab used to say that the Diyat is for Aqilah and widow will not inherit anything from the Diyat of her husband. Then, Zahbak bin Sufyan told him (Umar) that the Prophet of Allah (Sallalaho-Alehay Wasallam) wrote to him that widow of Ashyam al Zubabi, be paid Diyat of her husband 'according to her share from the inheritance'. Then, 'Umar resiled from his earlier statement. It shows that after Umar bin Khattab came to know of the said tradition that the Diyat is to be paid to heirs of the deceased, whether males or females, including widows, 'Umar resiled from his earlier statement as it had no binding force in presence of the tradition of the Holy Prophet (Sallalaho-Allehay Wassallam). It is also stated in Fatawa Hindiyyah (Urdu translation of Fatawa Alamgiriyya) Lucknow, 1932 Kitab-al-Jinayat, Vol. IX, Chapter 111, p. 303 that to claim the Qisas is the right of all heirs of the deceased and so is the rights of all the heirs to receive the Diyat. Legal position that Islamic law of Qisas and Diyat, in the matter of compensation, in several respects, is distinguishable from the Fatal Accidents Act, 1855. Firstly, section 1 of the Fatal Accidents Act restricts that a suit for damages shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death has been so caused. It implies that in case there is no wife, husband, parent or child of the deceased, no suit for damages under Fatal Accidents Act will be maintainable even if the other heirs of the deceased, for example brother and sister or distant kindred (Zawil Arham) are living, who may otherwise be entitled to inherit the estate of the deceased under Islamic Law. Secondly the' Diyat in the case of Qatl-i-Khata (causing death by mistake or negligence), according to the traditions of the Holy Prophet (s. a. w.) and his reverend Companions, is fixed as 100 camels, or 1000 dinars (of gold) or 10.000 dirhams (of silver) or value thereof, whereas in a case under the Fatal Accidents Act the damages are determined by the Court that have accrued to the bereaved legal representatives of the deceased for his sudden death, which are generally determined on the basis of proof of earning and future prospect of the deceased and dependency s' the legal representatives. Thirdly, in a case of Diyat, Aqilah ('Asbat) certain circumstances, may be made liable to pay the amount of Diyat, whereas under the Fatal Accidents Act, liability is restricted, and fourthly, the State is liable to pay the Diyat in case the offender is not known. So long as the Islamic Law of Qisas and Diyat is not in force, and the Fatal Accidents Act, 1855, continues to hold the field, the case will be governed by the provisions of Fatal Accidents Act, 1855. Sri Manmatha Nath Kuri v. Moulvi Muhammad Moklesur Rehman P L D 1969 S C 565; Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Limited P L D 1959 Kar. 550; Syed Nusrat Ali v. Messrs U. .K. Construction Co. and another P L D 1963 Kar. 841; Malik Raza Khan v. Pakistan P L D 1965 Kar. 244; Din Muhammad and 3 others v. Faqir Muhammad and 2 others P L D 1970 Lah. 442; Mst. Warkhema and 4 others v. Abdul Rashid and 2 others v. Muhammad ,aged and another 1983 C L C 1321; 1981 C L C944 and The Quantum of Damages-Fatal- Injury Claims by Kemp & Kemp, published by Sweet & Marwell Limited, London 1962, 2nd Edn., Vol. 2, p. 25 ref.
Administration of justice -Guiding principles for Courts-For Islamization of Statute Law mechanism, held, has been provided in Constitution of Pakistan (197 ,)-Courts of Pakistan could seek guidance from Holy Qur'an and Sunnah and apply Islamic principles as applicable in a particular case. Haji Nizam's case P L D 1976 Lah. 930; Hameeda Begum's case P L D 1975 S C 624; Muhammad Bashir's case P L D 1982 S C 139 and A. M. Qureshi's case P L D 1981 S C 377 ref. -- S. I-Apportionment of shares among claimant-Principles of Islamic Law urged to be followed instead of applying English principles for apportionment of respective shares among legal heirs of deceased-Court ordered that amount awarded was to be divided in accordance with shares fixed under Islamic Law of inheritance. Preamble-Fatal Accidents Act desired to be replaced by new enactment in accordance with Islamic jurisprudence. Muhammad Maqsood for Plaintiffs. Mir Raza Hussain Hyderi for Defendant.
Judgment & Decree
"That under section 1, the pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of the death. The Act itself does not, however, lay down any principle for calculating the measure of such loss but an estimate has still to be made by the Court, which has also been apportioned the sum so determined between the beneficiaries and proportionately according to the nearness of their relationship and the interest which of them had in the life of the deceased. But even the reasonable expectation of pecuniary advantage which might have been derived from the deceased had he remained alive, may be taken into account, and damages given in respect of that expectation. Assessment of damages in such a case must, therefore, necessarily to be same extent a rough and approximate in nature based more or less on guesswork, for it may well be impossible to accurately determine the loss."
52. Mr. Muhammad Maqsood submitted that on apportionment the widow should get the major share of the compensation as compared to her children, because she maintains them also. In support, he referred to the cases of Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd., Syed Nusrat Ali v. Messrs U. K. Construction Co. and anther, Malik Raza Khan v. Pakistan, Din Muhammad and others v. Faqir Muhammad and 1 others and Mst. Warkhema and 4 others v. Abdul Rashid and 1 others v. Muhammad Saeed and another.
53. In all these cases, I find, the widow has been awarded bigger share than the other heirs including parents of the deceased. On rough calculation of the percentage in the above‑cited cases, it seems that in the first‑named case (P L D 1959 Kar. 550) widow was awarded at the rate of 45 % approximate, whereas the younger son was awarded 33 % and the elder son was awarded 22 %. In the second‑named case (P L D 1963 Kar. 841) the widow was awarded 48 %, the son was awarded at the rate of 9% and the father was awarded at the rate of 13 %. In the third‑named case (P L D 1965 Kar. 244). the widow was awarded 25 % and the father and mother of the deceased were awarded 25 % each and the remaining 25 % was awarded. to two sons jointly. In the fourth‑named case (P L D 1970 Lah. 442) the widow was awarded about 50%, the father was awarded 12 % and the two children were apportioned the remaining 38 %, the younger son to get more and the elder to get less at the rate of 23 % and 15 % respectively. In the fifth‑named case (1531 C L C 944) the widow was awarded about 51 %, whereas the balance 49 % was apportioned bet ween three sons and one daughter. In the last mentioned case (1983 C L C 1321) the widow was awarded 45 % and the balance was to go to the rest of the heirs, who, besides father, were 10 sons and daughters,
54. I may also refer "The Quantum of Damages‑Fatal Injury Claims" by Kemp & Kemp, published by Sweet & Mawell Limited, London (1962, 2nd Edn., Vol. 2, page 25) wherein it has been stated by the learned authors that :‑ "Apportionment is normally made by the jury's verdict or in the course of judgment. Where there is apportionment between widow and children, "the practice is to award the greater part of the total to the widow, on the reasonable assumption that she will maintain the children sc long as they are dependent, and to award comparatively small sum to the children. Usually, though not always, a younger child i awarded more than an older child because the period of expected dependency is greater." The learned authors have also mentioned a number of cases, showing the amounts apportioned between members of the family and summarised on the point as under :‑ Names Award Apportionment Zinovieff v. British Transport 33,000 Widow ............... 21,000 Commission Parents 7,000 Two chil dren aged 19 and 16 each 2,500 Sainsbury v. Wakeman Bros The8,000 Widow ................ 7,000 Times, 20th October, 1959. Two children aged 6 and 2 1/2 ‑each 500 O'Neill v. Smith & Co. (Bride‑6,998 Widow ................ 6,618 ford) Ltd. Two children each.. 175 Eifert v. Holt's Co. Ltd. 6,400 Widow aged......... 2,000 23 Son aged 1................ 4,400 Causer v. Erlth do Co. 6,000 Widow aged 4,500 Two children aged 11 and 7‑each.................... 750 Heatley v. Steel Companyof 6,000 Widow................. 5,000 Wales Ltd. Son aged 17 150 Daughter 200 Two youngest children Total...................... 650 Donlon v. Clarke, Chapman & 5,600 Widow aged Co. (195.1) C L Y 962. 24 2, 600 Three child ren aged 5, 4, 3‑each 1,000 Holtum v. W. J. Cearns (1953) 4,000 Widow 3,000 C L Y 962 Eight children aged under 16 between them 500 Lwwin v. Ribble Motor Services 3,750 Widow aged Ltd. 46 3,300 Son aged 11 200 Daughter aged 10 250 Bain v.Moss Hutchison Line 3,500 Widow aged Ltd. 45 2,900 Son aged 16 200 Daughter aged 12 400 Swift v. Reardon Smith Line 3,160 Widow aged Ltd. 37 2.750 Daughter aged 22 10 Daughter aged 20 50 Daughter aged 13 150 Grandson aged 1 200 Grij,'iths %. J. Arthur Rank 2,750 Widow............... 1,750 Productions (1954) C L Y Son aged 885 14 500 Daughter aged 12 500 Woods v. W: H. Rhodes 8 2,558 Widow aged .Sons Ltd. 40 2,058 Four children ages not stated 75 75 150 200 Walshe v. arc. Alpine & Sons 2,500 Widow.............. 1,750 Ltd. The Times, Julv ‑
8. Girl 1959. aged 9 200 Boy aged 7 250 Boy aged 5 800 Rohdes v. War Office (1954) 2,000 Widow C L Y 885. aged 27 1,850 Son aged 8 15,150 Son aged 5 200 Son aged 4 200 Daughter aged 3 200."
55. As a result of the above discussion and particularly in the light of the observation of the honourable Supreme Court (P L D 1969 S C 565) already quoted. the apportionment of the amount of compensation among the several plaintiffs in the suit appears to have been left by the statute to the discretion of the Court. The discretion is, however, to be exercised S in a ,judicious manner, which is different from case to case.
56. In some of the cases, however, as would appear from the above chart, one fails to understand the propriety of apportionment from Islamic point of view for the reason that the widely received English principles of inheritance and will, working as background. It is not only true to the English decisions but also some of the Pakistani decisions, referred to above.
57. Generally speaking, the Courts of Pakistan, while interpreting certain principles in a given case including those which relate to the matter of discretion, adhered to the principles of English Common Law. The reason is obvious. It is due to the supremacy of Anglo‑Saxon law and its system, which is being practised in this sub‑continent for about one T and half century but, now, in the Islamic Society of Pakistan all such laws and principles, as are found repugnant to Islamic Law, have to vacate their place for the Islamic Common Law and its principles, so as to make room for their enforcement with the Constitutional backing for the Islamization of Law through Courts, for which reference may be made to the judgment of Mr. Justice Muhammad Afzal Zullah of the then Lahore High Court (now Judge. Supreme Court of Pakistan) in Haji Nizam's case (P L D 1976 Lah. 930) relevant paragraph whereof is reproduced as under: "All doubts in interpretation of law and appreciation of evidence would be resolved in manner consistent with Islamic principles and jurisprudence in preference to any contrary norm. Courts for which law declared by a superior Court is binding as law, when faced with any of the above situation qua precedent binding law, would treat it as if written law but, in order to assist and act in aid of the superior Courts which laid down the precedent might, with respect, deliberate Islamic point of view which would in turn help reappraisal and reinterpretation on Islamic lines. Such points would ordinarily have to be raised and canvassed formally so as to take advantage of. The controversy in each case would have to be specified after due study with the help of the bar. This would help the entire judicial system to develop on the pattern envisaged in the Constitution." For further support of this view, though indirect, reference may also be made to the Supreme Court case of Hameeda Begum (P L D 1975 S C 624) Muhammad Bashir (PLD 1982SC 139) and A. M. Qureshi (PLD 1981 SC377).
58. According to me, in so far as the Islamization of the enacted laws] is concerned, a mechanism has been provided in the Constitution itself, but in so far as the field presently unoccupied by legislature is concerned U td‑r. the judicial norms, practice and principles, Courts of Pakistan can certainly seek guidance from the Holy Qur'an and Sunnah and apply the Islamic principles, as applicable in a given case. 59. 1, therefore, consider it proper that in the natter of apportion ment of the shares among the various plaintiffs/illegal heirs in the above suits, the principle of Islamic law be followed, instead of applying, the English principles which are influenced by different considerations, for example, the English law of inheritance provides for widow a large share than it is provided in Islamic Law, so much so that in English law even the entire property can be willed away in favour of the wife, which is not permissible under Islamic Law in the presence of other heirs. Furthermore, there are concepts different to each other, regarding the right of guardianship of minors as to their person and property in both the systems, and so are the dissimilarities on the question of the respon sibility of the heirs of the deceased for providing maintenance to orphan children. Although the compensation awarded under the Fatal Accidents Act is not, strictly speaking, a wirtha or tarika i. e. the property left by the deceased, but nevertheless it is the property which has accrued to the heirs of the deceased for their benefit on account of his death. The diyat in Islamic Law and the compensation under Fatal Accidents Act, in their nature, are the same a‑, both are blood money and ensue from the wrongful act of the killer. Islam in the matte of distribution of the property directs us to follow the principle of showing compensation to relation by womb. Allah the Almighty in Hi Wisdom has prescribed the shares of all the heirs of the deceased by way of inheritance, and His Prophet Muhammad (Sallalaho Alaihi Wasallam) has directed as that the blood money of man or woman killed by mistake, is to be distributed among the heirs of the deceased in accordance with y their shares in inheritance. If this principle is adopted it will, firstly, leave no room for subjective determination of appointment by a Judge; secondly, it will not vary from case to c se; thirdly, it will give uniformity and stability to the law, which is to be given due protection; fourthly, it will not create bad blood among the various legal heirs by increase or decrease of their shares, and lastly it will foster goodwill and strengthen human behaviour and social relationship towards each other among the legal heirs to the welfare of the family which is the cornerstone of develop ment and prosperity of society in general. Therefore. adhering to the said principle of Islamic Law, I am of the view that in the matter appor tionment of the amount of compensation among the various plaintiffs/ legal representatives of the deceased, the discretion of the Court must b guided by the principle of Islamic Shari'ah as embodied in the Holy Qur'an and Sunnah of the Holy Prophet and his reverend companions.
60. In this view of the matter, it is, therefore, ordered that the amount awarded by me in the above suits will be divided among the various plaintiffs in accordance with their shares as fixed under the Islamic Law of inheritance, as detailed below:‑ (i) In Suit No. 492/84, the decretal amount of Rs. 32,000 will be divided equally between the two sons (Qaiser Ali and Zafar Ali). (ii) In Suit No. 547/84 the amount of Rs. 2,60,080 will be divided a 1/6 share to go to the father (Hashmat Ali), 1/6 to the mother (Sairah Bibi) and the balance will be distributed between the two sons of the deceased (Qaiser 'Ali and War Ali) in two equal shares. (iii) In Suit No. 539/84, the amount Rs. 2,01,600 will be divided as 116 to go to the father (Fazal Ilahi), 1 '8 to the widow (Salma Perveen), one‑half will go to the daughter (Tehsin Ulfat) and the balance shall revert to the father of the deceased. (iv) In Suit No. 541/84, the decretal amount of Rs. 64,500 will be distributed as I /8 to go to the widow (Sardar Bibi) and the balance to the son (Syed Nadim Hussain Shah) and the daughter Farzana in the manner that the son takes double the share of the daughter in proportion. (r) In Suit No. 54210 the amount of Rs. 27,733 will be distributed as I;8 to the widow (Ust. Bakht Zaiha) and the balance to the daughter (Mst. Perveen). (vi) In Suit No. 544/84 the amount of Rs. 1,35,000 will b distributed as 1/8 to the widow (Mst. Rashidan) and the balance among the 3 sons and 5 daughters in the proportion that the each son takes double the share of each daughter. (vii) In Suit No. 545/84 the amount of Rs. 1,80,000 will b distributed among the surviving 3 sons (Rizwan, Suleman and Zeshan) and one daughter (Tasleem) in the proportion that each so takes double the share of the daughter.
61. It .may, however, be stated that the defendant in a suit for damages under Fatal Accidents Act will have little concern with this aspect of the matter. Issue No. 7:
62. The suits were filed without any prior notice to the defendant Corporation. The damages have been decreed under no contractual obligation. There was no previously fixed or determined amount against the defendant. The liability of the defendant has been determined in tort. In the facts and circumstances of the cases. I, therefore, do not consider it proper to award any amount by way of interest to the plaintiffs. Finding in the negative. ‑ Issue No. 8:
63. To sum up, the above seven Suits are decreed to the extent of the various amounts awarded in the said paragraphs Nos. 39, 40, 41, 42, 43, 44 and 46 hereinabove. Issue No. 9:
64. There will be costs in the suits against the defendant which will be paid to plaintiff No. 1 in every suit.
65. Before parting with these cases, I would like to observe shat the Fatal Accidents Act, 1855, enacted some 130 years ago, has a limited scope which, in view of the society and Peoples of Islamic Republic of Pakistan needs to be amended so as to include all cases of deaths, caused by accident, negligence and mistake, of persons earning as well as non earning, ‑and the category of the beneficiaries may also be widened so as to include all the heirs of the deceased, whether dependents for their x livelihood on the deceased or not. The Fatal Accidents Act takes only a material view in the matter' of compensation, whereas Islam in such cases takes into account not only the material aspect but the whole social context which includes moral, spiritual, economic, and psychological support and backing which the legal heirs of the deceased have been depriv ed of. If, however, the Ordinance of Qisas and Diyat which, in the matter of Diyat, is applicable to Muslims and non‑Muslims alike, is enacted the Fatal Accidents Act, 1855 may be said a good‑bye. But till such time that the said law is not enacted, the Fatal Accidents Act may be modified a observed above. In this respect, assistance, may, perhaps, be had from the Draft Law of Qisas and Diyat, as approved by the Majlis‑i‑Shoora of Pakistan. Let the Registrar of this Court send a copy of this judgment to the Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad. A.A. Suits decreed.