2010 M L D 134 6/7/20, 2:09 AM

2010 M L D 134

[Supreme Appellant Court Gilgit]

Before Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASE RCC CHINA BRIDGE: In re

S.M.Case No. 1 of 2009, heard on 7th July, 2009.

(a) Northern Areas Governance Order, 1994---

----Arts.19-A, 27 & 45(2)---Fatal Accidents Act (XIII of 1855), S.1---Fatal accident---Suo motu notice---
Payment of compensation---Four innocent young persons were travelling in a car on road during the night
and while crossing the bridge when reached in the centre of bridge, their car due to the breakage in the bridge
fell in the river, three of them lost their lives; whereas fourth one sustained serious injuries---Said accident
was not due to fault of the victims, but they lost their lives due to negligence of public functionaries who
were responsible to maintain the road and bridge---Degree of carelessness about the life of people was cruel
and criminal---Matter relating to the right of life of the people in terms of Art.9 of Constitution of Pakistan read
with Art.19-A of the Northern Areas Governance Order, 1994, was of public importance and Supreme
Appellate Court exercising the power under Art.45(2) of Northern Areas Governance Order, 1994 was
concerned to take cognizance of the matter---Careful examination of the statements of the witnesses had
shown that on the day of incident, neither the road leading through bridge was closed for traffic nor any sign
board that bridge was out of order, was put on the road---General Manager of National High Way Authority
had not been able to bring on record any evidence in support of version that necessary precautions were taken
to close the road for traffic to avoid any incident---Clipping of newspaper and statements of the witnesses, had
clearly shown that the damage caused to the bridge concerned due to the breakage of its pillars, was well
within the knowledge of National High Way Authority, but said Authority knowingly had omitted to block the
road and close it for traffic, so much so that no sign board indicating "danger" was installed on the road on
either side of the bridge to warn the public---Failure of Authority to take the precautionary measures for the
safe journey on the road was a gross negligence for the purpose of civil as well as criminal liability and
aggrieved persons at their choice could surely avail the appropriate remedy provided under the law--Suo
motu notice was disposed of with direction that National Highway Authority would pay compensation in the
sum of Rs. five lac for each deceased to his legal heirs and same amount to the injured and Authority would
bear the expenses to the treatment of injured.

(b) Words and phrases---

----`Negligence' defined and explained.

Advocate-General Northern Areas.

Muhammad Issa, Advocate.

Abdullah Jan, General Manager, NHA.

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Date of hearing: 7th July, 2009.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, C.J.---This matter pertains to an incident taken place on 2-5-2009 at
about 9-00 p.m. on RCC Bridge which was build on River Gilgit near Danyore by a China Construction
company on the High Way leading to Hunza. The four innocent young persons were travelling in a car on
Hunza road during the night and while crossing the bridge when reached in the centre of bridge, their car due
to the breakage in the bridge fell in the river and three of them lost their lives, whereas forth sustained serious
injuries. The fact regarding broken pillars of bridge was neither in the knowledge of victims nor warning sign
board was installed on the road which was also not closed or blocked for traffic from the side of Gilgit of
which victims were travelling on the road and consequently they were not on guard to avoid the unforeseen
incident.

The sad episode was reported in the press on 2-5-2009 and this Court while taking notice of the matter vide
order, dated 6-5-2009 in exercise of powers under Article 27 read Article 19-A of the Northern Areas
Governance Order, 1994, called report from the Chief Secretary and the Secretary PWD Northern Areas. The
News item published in the newspapers on 2-5-2009 and order passed by this Court on 6-5-2009 are
reproduced herewith:--

ORDER OF COURT:--

"The daily News Nawa-e-Waqat and K-2 of 2nd May, 2009 have published the sad news regarding
the incident taken place on RCC China Bridge on river Gilgit, on the road leading to Danyore from
Gilgit, in the night of 2nd May, 2009 in which three young persons have lost their lives, and one
sustained serious injuries."

The young boys were proceeding towards Hunza on an Alto Car on a pleasure trip through the bridge which
was not usable due to breakage of pillars and had also a big hole which was not as such visible. The poor
boys having no knowledge or information about the situation to face the unforeseen incident, while crossing
the bridge in the dark, fell in the river and lost their lives.

According to the news item the road leading to the Hunza through this bridge was not closed for traffic and
so much so, no sign of danger was placed on the road near the bridge to warn the travellers about the
condition of bridge.

In Northern areas the tourist from all over the world travelled and this is the responsibility of the concerned
authorities to be vigilant about their security and safety. The perusal of News item would show that the
relevant authorities were least bothered to take any preventive measure to avoid such incident.

This was not as such a road accident or an incident due to fault of the victim, rather the poor boys lost their
lives due to negligence of the public functionaries who are responsible to maintain the road and bridge. The
degree of carelessness about the life of people is cruel and criminal.

The matter certainly relating to the right of life of the people in terms of Article 9 of the Constitution of
Pakistan, 1973 read with Article 19-A of the Northern Areas Governance Order 1994 is of public importance

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and this Court exercising the power under Article 45(2) of Governance Order, 1994 is concerned to take
cognizance of the matter.

The head of concerned department will submit detail report in the matter through Chief Secretary Northen
Areas, within ten (10) days, showing the circumstances under which this terrible incident happened and
reason for keeping the road with broken bridge open for traffic.

The Chief Secretary Northern Areas by holding an independent inquiry will fix the responsibility of the
concerned official in the matter. The Secretary of the concerned department will apprise the Court about the
matter on the next date to be fixed for hearing by the office within a fortnight.

This order shall be conveyed through special messenger.

Subsequently it transpired that RCC Bridge on Hunza road was built by a Construction Company of China
and the contract of the construction of bridge was awarded by NHA as the Hunza road was in the control of
NHA and provincial Government of Northern Areas was not responsible for its maintenance. The notice was
accordingly issued to the NHA Authorities at Islamabad and in response there to Mr. Abdullah Jan, General
Manager, NHA Gilgit, while appearing in person on 28-5-2009 submitted report in the matter in Court. The
Chief Secretary Northern Areas also informed the Court that he has ordered for an inquiry in the matter and
on receipt of inquiry report the same will be placed before the Court. Consequently, the following order was
passed on 28-5-2009.

"General Manager Mr. Abdullah Jan, National Highway Authority Northern Areas, having submitted report
has stated that Danyore Bridge on the road leading to Hunza was closed for traffic and public in general was
duly warned about the situation. Mr. Abdullah Jan with reference to the photographs of the site asserted that
proper precautionary measures were taken to avoid any unforeseen incident.

The Chief Secretary Northern Areas present in Court in connection with another case stated that a judicial
inquiry into the matter was ordered by him which has been held and report will be submitted before this
Court, on the next date. The President Bar Association has pointed out that no such precautionary measures
were at all taken to warn the people about the position of Bridge and sad incident was the result of gross
negligence of the concerned authorities. The matter involves factual inquiry, therefore, the parties may
produce their evidence on 2-6-2009.

Mr. Aftab Haider, MNA Member Northern Areas Legislative Assembly concerned, Lumbardar of the Area,
and one notable of the local area will also appear as witness. The S.H.O. concerned along with the officials
who were on duty at the bridge shall also appear as witness."

In the light of the incident narrated in the news item published in the Newspaper and explanation offered
by NHA in its report submitted in the Court on 2-6-2009, we proceeded to record the statement of witnesses
reproduced hereunder to ascertain the correct factual position.

Statement of Muhammad Alam: Member Legislative Assembly on Oath: -

The road leading to Danyore Bridge on which incident happened is under the control of NHA, Islamabad,
through General Manager of NHA at Gilgit. The damage was caused to the RCC Bridge on 15th August,
2008 and I having visited the site on the next day found that the road was blocked with stone and mud and a

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police party was also present on the spot. Thereafter, about six months ago I having gone to village Jagot at a
short distance from Danyore Bridge saw that the sign Board of danger at broken bridge were installed and
police post was also in existence near the Bridge. However, I do not know what was the position on the
day when fateful incident happened.

Statement of Muhammad Javed: Member of the District Council on Oath: --

I visited the spot on the next day of the damage caused to the Bridge and saw that the road from Danyore side
was blocked and police was also present at the Bridge. The police post installed near the Bridge existed for
about two three months and then it was abandoned. The incident in which three young persons have lost heir
lives happened, during the night on the broken bridge and I do not know as to whether the police or any other
official was or was not present at the Bridge to inform the strangers that bridge being broken. was closed for
traffic.

Aftab Haider (MNA) on oath:--

On the day when the Bridge was broken the police and other officials of the concerned department were
present at the spot and road on both side of the Bridge was blocked with Mud. There was no sign board on
either side of the Bridge and I do not know about the position at the spot on the day of incident which took
place during the night as I did not visit the place of incident during the days of incident rather have seen the
road blocked with Mud about six months ago.

Aqil (S.H.O.) concerned on Oath:--

I was S.H.O. of the area when the incident of felling the Car into river Gilgit on Danyore Bridge happened on
1-5-2009. I have registered the case regarding the incident under section 322, P.P.C. against N.H.A. (Copy of
F.I.R. is placed on record). The victims of the incident were strangers who were travelling by a Car on the
road leading to Hunza through Danyore Bridge which was broken. There was no police post and police
Contingent was also not deployed on either side of the bridge on the day of happening the incident. However,
before the bridge was broken Army post was near the bridge but after breaking of the bridge neither Army
nor police installed any such post. There was no sign board of danger on the road or near the bridge to
indicate that the bridge being broken was not operational, except a small sign board which was installed at a
distance of half a kilometer from bridge on the side of road which was not visible in the night. The NHA
authorities have neither requested for deputing police officials on, the bridge, nor any official of the
department present at the bridge to warn people at the spot that bridge was broken. Two dead bodies were
recovered from the river whereas the dead body of third victim has not yet been recovered. Syed Umar Tariq
Shah who was also travelling in the car was injured and survived. I have recorded the statement of Syed
Umar Tariq Shah. (Copy of the statement is placed on record)

Muhammad Rafiq, Lumbardar on Oath:--

I am resident of Danyore the bridge on river Gilgit near Danyore was broken about five to six months before
the incident. After the bridge was broken it .was closed for traffic from both sides and the road leading to
bridge from Danyore was blocked with mud and stone. The sign board of danger was also installed on both
side of the bridge, but on the day of sad incident there was no mud or stone on the road or the sign board. The
incident took place during the night and I reached at the scene on the next morning. The people of the area
also gathered at the spot. The victims were travelling from Gilgit to Hunza and were strangers. I have not

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seen any sign board of danger at the bridge on the road when I visited spot on the next day of incident.

Order passed by the Court on 2-6-2009.

General Manager NHA states that he has not been able to contact the legal heirs of the victims or Syed Umar
Tariq Shah, injured and has been requested for a short time to enable him to contact the legal heirs of the
victims and Syed Umar Tariq Shah. He states that if Umar Tariq Shah wants to appear before this Court,
NHA will bear his travelling expenses of both sides from Lahore to Gilgit. The matter is adjourned to 08-6-
2009 on the request of GM and no further adjournment will be granted.

The Advocate, General is directed to contact the legal heirs and injured and make arrangements for their
representation in Court, on the next day.

The General Manager NHA sought time for negotiation with the legal heirs of the deceased and case was
accordingly adjourned to 8-6-2009 and then to 15-6-2009 to enable NHA to settle the matter relating to
the payment of compensation to the legal heirs of the deceased and injured victim: The order, dated 8-6-
2009 and 15-6-2009 respectively are reproduced herein under:--

"The General Manager, NHA Northern Areas, Gilgit has submitted report regarding the
negotiation for the payment of compensation to the legal heirs of the deceased and injured. He has
submitted that since a committee has been constituted for negotiation and settlement of the issue
out of Court, therefore, further time is required to finalize the matter. Adjourned to 15-6-2009.

Order dated 15-6-2009 is read as under:--

"General Manager NHA Northern Areas, states that negotiation with the legal heirs of victims is
in progress and expectedly the matter will be finalized within a week. This case is accordingly
adjourned with the observation that if no settlement between the parties is arrived by the above
date, the Court will proceed to decide the question relating to the payment of compensation
without further delay."

The parties as stated have not been able to settle the matter out of the Court and consequently, we in the
light of the statements of witnesses referred above and having heard the General Manager NHA Gilgit,
the learned Advocate General and Mr. Muhammad Issa, Senior Advocate, and President Supreme
Appellate Court Bar Association at length have come to the conclusion that the fateful incident was the
result of negligence of NHA which could be avoided if proper care would have been taken by closing the
road from both ends of bridge and by installation of sign board to warn the public that the bridge was not
serviceable.

The careful examination of the statement of witnesses would unambiguously show that on the day of
incident neither the road leading to Hunza through the bridge in question was closed for traffic nor any
sign board indicating that bridge was out of order, was put on the road. Mr. Abdullah Jan, General
Manager, NHA has not been, able to bring on record any evidence in support of the version that
necessary precaution were taken to close the road for traffic to avoid such an incident rather having not
been able to contradict the factual position narrated by the witnesses has impliedly conceded the
negligence of NHA in the matter.

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The negligence may be simple or gross for the purpose of civil and criminal liability and is defined in
general terms as under:--

"Omission to do something which ordinarily regulates the conduct of human affairs, a reasonable
man would not omit to do in normal circumstances and non-performance of an act by a person to
which he is obliged to perform as positive duty is called negligence. The neglect of use of
ordinary care or skill in respect of an act to be performed as duty with ordinary care, in
consequence to which another person may suffer injury to his person or loss is caused to his
property is a negligence in civil and criminal law."

The perusal of the clipping of the newspaper, the statement of witnesses particularly the then S.H.O. of
the concerned Police Station and report submitted by General Manager, NHA would clearly show that the
damage caused to the RRC Bridge built on River Gilgit near Danyore due to the breakage of its pillars
was well within the knowledge of NHA authorities but these authorities knowingly omitted to block the
road and close it for traffic, so much so no sign board indicating "danager" was installed on the road on
either side of the bridge to warn the public.

This may be pointed out that a little degree of vigilance and care would have been sufficient to avoid the
said incident at the broken bridge on the Highway. The incident was not the result of natural calamity or
act of God rather it was due to the visible negligence of the authorities who were responsible for.
maintenance of the road leading to bridge and in such a situation were obliged to install sign boards on
the road on both sides of bridge to warn the travellers about the danger. The failure to take the
precautionary measures for the safe journey on the road was certainly a gross negligence for the purpose
of civil as well as criminal liability and aggrieved persons at their choice can surely avail the appropriate
remedy provided under the law.

The victims of the incident while innocently travelling on the road during the night with the presumption
that road was safe for travelling could not visualize the extra-ordinary situation leading to the fateful
incident. In the normal circumstances this is beyond expectation of a common man that there would no
barrier on road or high way with broken bridge and would be opened for traffic. The NHA being the
controlling authority of Hunza road for the purpose of its maintenance was required to close the road
from both ends of bridge to avoid any unforeseen incident but unfortunately nothing was done for the
safety of the travellers. The carelessness on the part of NHA not to close the road or take any other
precautionary measure to avoid such an incident by itself is sufficient evidence to constitute negligence
for the purpose of civil as well as criminal liability. The degree of carelessness may differ from case to
case and in the present case the carelessness would constitute gross negligence for the purpose of legal action.

The public functionaries dealing with such matters involving rights of people are required to be more vigilant
in performance of their duty because a sight omission or neglect on their part in discharge of their duty vis-a-
vis public rights may result in serious consequences and cause irreparable loss to the individuals as well as to
the public in general. The collective negligence of public functionaries or a Government department is
calculated in terms of far reaching effect on the public life and permanent loss caused to the national interest
whereas individual carelessness may not be treated at par to the institutional or collective omission in public
duty for the purpose of damages.

The General Manager NHA realizing the extraordinary situation and gross negligence on part of NHA,
voluntarily and unconditionally offered for payment of compensation of Rupees 400,000 (Four Lac) to the

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legal heir of each victim and injured. This amount was however enhanced by him to Rupees 500,000 (Five
Lac) on the suggestion of Mr. Muhammad Issa, Senior Advocate and President Supreme Appellate Court Bar
Association Gilgit, therefore the order was accordingly passed on 18-6-2009 with the direction for deposit of
Rupees 20,00,000 (Twenty Lac) with the Registrar of this Court for payment to the legal heirs of each
deceased as compensation of Rupees 500,000 five lac and also Rupees 500,000 to the injured with further
direction that NHA will also bear the expenses on the treatment of injured. The order, dated 18-6-2009 is
treated as part of this judgment and is reproduced hence under: -- .

"Mr. Abdullah Jan General Manger NHA Gilgit states that the settlement regarding the payment of
compensation to the legal heirs of victims and with injured could be made and Court may proceed to
decide the matter. The General Manager however, very frankly stated that NHA is prepared to pay an
amount of Rs. four lac (400,000) to each deceased and injured as compensation and in addition will
also pay the expenses on the treatment of injured. Mr. Muhammad Issa, Senior Advocate President of
Supreme Appellate Court Bar Association has stated that the compensation may be enhanced to five
lac for each victim and injured. Mr. Abdullah Jan General Manger has agreed to the proposed
quantum of compensation being reasonable and stated that the payment will be made within a month
through the Registrar of this Court.

For the detail reasons to be followed, we dispose of this Suo Motu notice with direction that NHA will
pay compensation in the sum of Rs. five lac (500,000) for each deceased to his legal heirs and same
amount to the injured, in addition the NHA will also bear the expenses on the treatment of injured.
The amount of compensation of the victims who are three in number and injured total Rs.20,00,000
(Twenty Lac) will be deposited with Registrar of this Court within one month and Registrar after
necessary verification will make the payment to legal heirs of the deceased and the injured.

The expenses of injured on his treatment will be paid to him directly. This Suo Motu notice stands
disposed of in the above manner."

In view of the importance of the case this Court took cognizance of the matter in Original Jurisdiction in
public interest, therefore, this judgment will not prejudice the right of legal heirs of the deceased and injured
to avail the civil or criminal remedy available to them under the ordinary law and if such a remedy is availed,
by the aggrieved person and Court concerned for civil liability grants compensation to them as damages, will
treat the amount of compensation to be paid by NHA in terms of this order as part of the damages. The
amount of compensation will be distributed amongst the aggrieved families after proper verification for their
antecedents as per direction given vide order, dated 18-9-2009.

In consequence to the above orders, this Suo Motu Case No.1 of 2009 stands disposed of accordingly.

H.B.T./21/Glt Order accordingly.

;

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