1986 PLP 740 (CLC)

12. Is there any liability on the part of the defendant No. 3?

13. To what reliefs, if any, the plaintiff is entitled to an against whom ?"

2. Mr. Raza Hussain Haidri, learned counsel for the plaintiffs submitted that defendant No. 3 who issued the policy is liable to pay for the loss and damage caused to 118 bales of the consignment due to having come in contact with sline/rain water and dust and mud and mixed with foreign matters, subsequent to the miscreants' action resulting in damage to the vessel. In this respect, he referred to the survey report of Messrs Republican Surveyors who were appointed by defendant No. 3 on application of plaintiffs' agent for survey of the said consignment. Alternatively, he submitted that in case it is found the that risk is not covered by the said Insurance Policy and defendant No.3 is not liable thereunder, defendants Nos. 1 & 2 are liable to pay for the loss and damage to the plaintiffs under the Civil Commotion Compensation Funds Ordinance, 1971 which was promulgated by the President of Pakistan on 17‑8‑1971 as defendant No. 2, in terms of the said Ordinance, is liable to pay, out of Civil Commotion Compensation Funds established thereunder, compensation for any loss suffered in respect of any insured property during the said period commencing from 1st March, 1971 due to fire, caused by, or any destructive or malicious activities of, persons taking part in civil commotion.

3. Mr. Abdul Rauf, learned counsel for all the three defendants, on the other hand, submitted that defendant No. 3, the Insurance Company is liable only if the goods suffered from ordinary maritime peril. It was contended by him that as the goods did not suffer damage from ordinary maritime peril, defendant No. 3 is not liable. The policy covered the risk of theft, pilferage and non‑delivery including the risk of loss and/or damage by fresh and/or rain and/or river water, hooks, oil, mud, acid and other extraneous substances, heating and sweating. The policy, however, as provided in clause 12 of the above said Institute Cargo clause," warranted free of capture, seizure, arrest, restrain or detainment, and the consequences thereof or of any attempt threat; also from the consequences of hostilities or warlike operations, whether there be a declaration of war or not".

4. War, riots and civil commotion are not ordinary maritime peril and the damage to the goods was caused as a result of the miscreants' action resulting in the damage to the vessel. As admitted by P.W. 1 in cross‑examination, there was a bomb explosion on the vessel and on account of explosion the cotton bales were damaged by sea water. After reading the evidence of the plaintiff Exh.5 and looking to the Insurance Policy Exh. 5/1 and the Survey Report, I agree with the contention of the learned counsel for the defendants that defendant No. 3 is not liable under the policy.

5. As regards the liability of defendant No. 1 or No. 2, Mr. Abdul Rauf submitted that from March, 1971 upto 16th December, 1971, it was not a state of riot and civil commotion in the then East Pakistan but it was the state of an open war between Central Government of Pakistan and the East Pakistan Population. Since the Civil Commotion Compensation Funds Ordinance, XXI of 1971, provides for awarding of compensation for loss in respect of an insured property caused by fire, or by any destructive or malacious activities of, persons taking part in civil commotion, which, according to him, does not mean and include an open war. The provisions of section 8 of the Ordinance are not, therefore, attracted to the present case. He further submitted that since the said Ordinance XXI of 1971 has been repealed on 5th August, 1972 by Ordinance XXXII of 1972, defendants Nos. 1 and 2 are not liable to pay the compensation.

6. In support of his first submission Mr. A. Rauf has relied upon the decision of a learned Single Judge of this Court in the suit reported as Messrs Rauf and Co. v. Alfa Insurance Co. Ltd., and two others P L D 1981 Kar.

457. He has also placed reliance on certain passages appearing in the books written by several Pakistani and foreign authors, as under:‑

(i) Pakistan's Crisis in Leadership by Maj. ‑Gen. (Retd.) Fazal Muqeem Khan, Lahore, 1972. (ii) Blood and Tears, by Qutubuddin Aziz, Karachi, 1974. (iii) The Last Days of United Pakistan, by G.W. Chowdhry, London, 1974. (iv) Witness to Surrender, by Siddiq Salik, Karachi, 1977. (v) Keesing's Research Report 9, Newyork, 1973 on Pakistan from 1947 to the Creation of Bangladesh. Finally he placed his reliance on "White Paper on the Crisis in East Pakistan issued by the Government of Pakistan on 5‑8‑1971.

7. The case P L D 1981 Kar. 457 cited by Mr. Abdul Rauf learned counsel for the defendants supports his contention. The learned Single Judge has already referred to the above books including the White Paper issued by the Government of Pakistan on 5‑8‑1971, and I have no reason to take a different view on the point that the conditions prevailing in the then East Pakistan were not those of riot or civil commotion. It was a state of civil war waged by the people of the then East Pakistan against the established Government of Pakistan for seeking Independence of the Province of East Pakistan, which ended successfully in creating a separate State as Bangla Desh on or about 16th December 1971, when Pakistan army surrendered and taken as war prisoner.

8. I would, however, like to add that the "War" in the context of present case is not to be used in a political sense. It may be a war for purposes of insurance risk and at the same time it might not be war in the political sense of the term. It may still be a war under the principle of insurance though it may not have been recognised as war by the respective political power. It is of no significance if the war is declared or not. So the Irish rebellion was held to amount to "War" within the meaning of insurance policies in Curis v. Matews (1919) I.K.B. 544, and revolutionaries were held to be "king's enemies "in Secretary of State for War v. Midland Great Western Railway of Ireland (1923) 2LI.L.R.

102. The word "war" in a policy of insurance includes civil war unless the context makes it clear that a different meaning should be given to the word "Pesquerias v. Beer (1949) 82 LI.L.R.' 501, 514, per Lord Morton.

9. One of the cardinal principles of the insurance law for fixing the liability on the Insurance Company is whether the loss was caused by an insurance peril or whether it was the loss due to a cause which falls within the exceptions. The loss caused by a peril, in an ordinary maritime policy, should look to the immediate approximate cause of the, loss or damage, and nut to some remote cause. So, for ascertaining the rights of the parties a Court is not to trouble itself with distant causes. Applying this principle to the facts of the present case it is clear that the loss and damage to the ,goods was not caused by an ordinary maritime peril, but it was caused due to the bomb explosion at the vessel by the miscreants.

10. As for the second limb of the argument of Mr. Abdul Rauf, on the effect of repeal of the Ordinance XXI of 1971 reliance was placed by him on the following two passages by Crawford on Statutory Construction appearing at page 315 of 1940 Edition, which reads as under:‑

"In the first place, an outright repeal will destroy the effectiveness of repealed act in future, and operate to destroy inchoate rights dependent on it, as a general rule Hertz v. Woodman, 218 U.S. 205, 54 L. Ed. 1001, 30 S.Ct. 621." and at pages 645‑646:‑ "Although some of the cases go so far as to say that the unqualified repeal of a statute as effectfully destroys rights and liabilities depend upon it, not past and concluded, as if the statute had never existed, Blake v. State 178 Ala. 407, 59 So. 623 it is perhaps more accurate to say that "an unqualified repeal operates to destroy inchoate rights, as a release of obligations, and as a remission of penalties and forfeitures dependent upon it "Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001."

11. He also placed reliance on a passage from American Jurisprudence (Vol. 50, Statutes, p. 532 on the effect of repeal of a statute as quoted in Farani's Interpretation of Statutes, 1970 ed.p. 311, which reads as under:‑-- "Aside from matters and transactions past and closed, and aside from the use of repealed statutes as an aid in the interpretation of existing statutes, the general rule is that where a statute is repealed without a re‑enactment of the repealed law in substantially the same terms, and there is no saving clause or a general statute limiting the effect of the repeal, the repealed statute, in regard to its operative effect, is considered as if it has never existed. Of course, the Courts have no power to perpetuate a rule of law which the legislature has repealed."

12. Mr. Hyderi counsel for the plaintiff did not challenge the legal position and cited no law to the contrary.

13. Mr. Liaquat Merchant, learned Deputy Attorney‑General, on Court notice, submitted that the situation prevailing in the then East Pakistan in or about August, 1971 was not of a simple riot or civil commotion but of an open rebellion, a military insurrection and an apprising of the population against the established Government of Pakistan to challenge its authority to rule the country. For this submission, he placed his reliance on Martial Law Regulation No. 84 relating to the trial of Shaikh Mujeeb‑ur‑Rahman, who, then, became the first President of People Republic of Bangla Desh. A Special Military Court was constituted in August, 1971, at Lyallpur for the purpose of trying Shaikh Mujeebur Rehman on charges specified in the Schedule to the said Regulation. The 1st and the 11th charge denote the charge of "waging war against Pakistan of attempting to wage such war, or abetting the waging of such war, and "within or without Pakistan conspiring to wage or attempting to wage war against Pakistan." The learned Deputy Attorney General also made a reference to three cases reported as Emperor v. Savarkar. ILR 34 Bom.

394. In re: Umayyathantagath Puthen Veetil Kunhi Kadir v. Emperor A I 8,1922 Mad. 126 and Aung ilila v. Emperor A I R 1931 Rang. 235.

14. In the first case (ILR 34 Bom. 394) it was held that the term "wages war" must be taken to mean the taking part in the open and avowed hostilities of an invading army, or guerilla warfare or in an armed insurrection, revolution, or mutiny.

15. In the second case A I R 1922 Mad. 126 it was held that a person taking part in an organised armed attack on the constituted authorities, that attack having for its object the subversion of Government and the establishment of another in its place, would be guilty of the offence of waging war.

16. In the 3rd case (A I R 1931 Rang. 235) it was held that a deliberate and organised attack upon the Crown forces amounts to "waging war" if the object of the insurgents be to overcome the servants of the Crown by armed force and violence and thereby prevent the general collection of taxes.

17. It may be stated that all these three cases were decided under section 121 of the Pakistan Penal Code. The consideration for trial of an offence under section 121, P.P.C. may be somewhat different to the consideration of a liability under the Insurance Law. On the face of material placed before me, the condition in the then East Pakistan at the relevant time was not that of a civil commotion but a state of open war between the population of East Pakistan with military aid and assistance of a foreign power on the one hand and Pakistan, or, to be exact, West Pakistan on the other.

18. To sum up defendant No. 3, the Insurance Company, as already observed, is not liable as the loss occurred to the plaintiff was not a maritime peril covered by the policy. Defendants Nos. 1 and 2 are also not liable to pay compensation as, firstly the conditions prevailing in the then East Pakistan were not that of civil commotion but that of open war, which was beyond the scope of Ordinance XXI of 1971, and, secondly, the suit was filed on 20th October, 1973, whereas the said Ordinance was repealed on 5th August, 1972 with no saving clause. In the result, the suit is dismissed, but in the special circumstances of the case, there will be no order as to costs. A.A. Suit dismissed