IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
Present: 
Mr. Justice Nasir-ul-Mulk, HCJ 
Mr. Justice Gulzar Ahmed 
Mr. Justice Mushir Alam 
 
 
Civil Appeal No.1000 of 2006 
Against judgments dated 26.04.2006 of High 
Court of Sindh at Karachi, passed in HCA 
No.329, of 2005. 
 
 
National Logistic Cell 
 
 
 
 
Appellant(s)  
 
VERSUS 
Irfan Khan & others 
 
 
 
 
Respondent(s)  
 
 
For the Appellant(s): 
 
Mr. Anis-ud-Din, ASC  
 
 
 
 
 
Mr. Rifaqat Hussain Shah, AOR 
 
For Respondents#1-3: 
 
Mr. Nasir Maqsood, ASC  
 
For Respondents#4-6: 
 
Ex-parte 
 
Date of Hearing:  
 
30.01.2015  
 
JUDGMENT  
 
 
 
Mushir Alam, J-. This appeal is directed against 
judgment dated 26.04.2006, whereby a learned Division Bench of 
High Court of Sindh at Karachi dismissed the appeal (HCA No.329 
of 2005), filed by the appellant-NLC, with slight modification in the 
judgment & decree of 16.05.2005 passed in Suit No.612 of 1994. 
 
2. 
 
Facts of the case appear to be that the deceased Sher 
Azam Khan, a driver on PIA Van on the fateful day i.e. 11.04.1993 
was on his way from Karachi Airport towards City to drop the crew 
members to their homes, when he reached near Muhammad Ali 
Housing Society, at about 5.30 A.M early in the morning, all of a 
sudden one NLC Trailer, appeared in a rash and negligent manner 
from the opposite side, in a bid to overtake other vehicles, dashed 
into the PIA van causing severe accident that took the life not only of 
the driver Sher Azam Khan but, of the three air hostesses as well.  
 
Civil Appeal No.1000 of 2006 
                                                           
2
3. 
 
Respondents No. 1 to 3, all minors of 2 to 6 years at that 
time, through their mother being legal heirs of the deceased driver 
on 09.08.1994 filed a suit bearing No.612/1994 under the Fatal 
Accident Act, 1855 for the recovery of compensation in the sum of 
Rs.35,00,000/- 
against 
the 
appellant-NLC, 
its 
driver 
Naik 
Muhammad Arif, (driver of offending NLC-trailer), Respondent No.5 
herein, and Karachi Development Authority (succeeded by City 
District Government (CDGK/KDA)), Respondent No.6 herein, and 
another. It was the case of Respondents No.1 to 3 that the road 
repairing work of one track of Shahrah-i-Faisal was being carried out 
by the KDA; on the track meant for vehicular traffic flowing from 
Karachi Airport towards the City, which was closed for vehicular 
traffic. Other track was being used by the traffic of both ways. Case 
against the CDGK/KDA as pleaded in the plaint was that as an 
executing agency for the road repair, the KDA neglected to take due 
care to install any caution signs, nor they installed any bifurcating 
device, as is required of an ordinary prudent person, thus defaulted 
in performance of their duty that also contributed in the unfortunate 
accident that took lives of four persons. 
 
4. 
 
Suit 
was 
contested 
by 
the 
defendants, 
written 
statements were filed.  Out of the pleadings of the parties, following 
issues were framed:- 
“1. Whether the death of the deceased Sher Azam Khan 
was caused by the composite negligence and 
wrongful act of the defendants, if so, its effect? 
 
2. Whether the defendants are liable to pay the 
compensation to the plaintiffs and other legal heirs, 
if so, to what extent?” 
 
5. 
 
To substantiate the claim in the suit, Mst. Naseem 
Akhtar, widow of the deceased driver and, mother of the minor 
plaintiffs, examined herself as EX.P/1, and produced various 
documents to prove the accident. She also examined an eyewitness 
of the accident namely Muhammad Ihsanul Haq EX.2/1, 
Muhammad Iqbal, ASI of Police Station Bahadurabad, as EX.P/3, 
who produced inspection report, site sketch of the place of incident, 
etc and Abdul Razzak Shaikh, Accountant of PIA to prove 
employment of the deceased with PIA and his emoluments. All the 
witnesses corroborated the plea of the Plaintiff, as to the factum of 
accident, negligence of the NLC driver and non provision of warning 
Civil Appeal No.1000 of 2006 
                                                           
3
and cautionary measures by the CDGK/KDA and quantum of 
damages and liability of the defendants. 
 
6. 
 
The appellant-NLC and Respondent No.5 cross-
examined the plaintiff’s witnesses but were unable to shatter the case 
of Respondents No.1 to 3 on any count. They chose not to lead any 
evidence in rebuttal and or in support of their defense plea of 
contributory negligence on the part of deceased driver or sole 
responsibility of the KDA/Respondent No.6 for failing to perform 
public duty. Likewise, KDA/Respondent No.6 neither cross-
examined the Plaintiff, her witnesses nor led any evidence in rebuttal 
that they had not taken any precautionary measures to warn public 
of any road diversion and or repair, etc nor did they advance any 
argument either before the Courts below or before this Court. 
 
7. 
 
On preponderance of the evidence, issue No.1 was 
decided in favour of the Respondents No.1 to 3 and against the 
Appellant-NLC, as well as rest of the respondents. Finding against 
the CDGK/KDA, is contained in paragraph 13 of the judgment dated 
16.05.2005 of the learned Single Judge, who in Chambers after in-
depth examination of evidence on issue No.1 concluded as follows:-  
““13. 
from the above evidence it is clear that one side 
of Shahra-i-Faisal road was being repaired by the 
defendants No.4 through contractor therefore it was 
closed for traffic. The traffic was diverted to the other 
side of the road. Under the circumstances the 
defendants No.4 were required to make proper 
arrangements for the smooth flow of the traffic and to 
make adequate arrangements to caution the traffic 
flow by affixing barricades, flicker lights with standby 
generators, diversion signboards fixed on either end of 
the intersections of the road, also barricades and flicker 
lights in the middle of the road for smooth flow of the 
traffic on the road and for the guidance of the dual 
traffic on one side of the road and should have also 
deployed traffic constables on the road. The eyewitness 
Muhammad Ihsanul Haq clearly admitted that no such 
signs or lights were available on the road for the 
guidance of the traffic. The evidence of the witness went 
unchallenged as the defendants No.4 did not cross-
examine him on the above points of his evidence nor the 
defendants No.4 that defendants Nos.4 and 2 are also 
liable to pay compensation.” 
 
8. 
 
As regards the factum of accident, negligence, liability of 
the Driver/Respondent No.5 and vicarious liability of the Appellant-
NLC., there was no serious contest nor, any evidence was led in 
rebuttal to the case of Respondents No.1 to 3. Evidence of the star 
eyewitness of the accident Muhammad Ihsanul Haq EX.2/1, who 
Civil Appeal No.1000 of 2006 
                                                           
4
was driving another PIA van just behind the ill-fated van and had 
witnessed the accident within his sight had not only gone 
unchallenged but, the Appellant-NLC, as noted above, also failed to 
adduce or lead any evidence in rebuttal even the driver of the of 
offending NLC Trailer was also not produced. 
 
9. 
 
On the strength of evidence on record, the Appellant-
NLC, the Respondent No.4, Respondent No.5 (Driver of offending 
vehicle) and the Respondent No. 6 CDGK/KDA, were held jointly 
liable for the accident. The learned Single Judge in paragraph 15 of 
his judgment dated 16.05.2005, found them liable in the following 
terms:- 
“15. 
From the above position it is clear that the 
defendants No.4 and defendants Nos. 2 and 3 were 
negligent and the accident took place due to their 
negligence therefore it is a case of normally styled in 
the legal parlance as composite negligence. The 
principles of composite negligence are that the victim 
has a choice of proceeding against all or any one or 
more than one of the wrong doers and every wrong 
doer are liable for the whole damages if it is otherwise 
made out. Reliance is placed on Andhora Marine 
Exports {P} Ltd. V. P. Radhakirshina. AIR 1984 Madras 
358 and Vanguard F. & G.I. Co. V. Sarla Devi, AIR 1959 
Punjab 297.”  
 
10. 
 
Consequently, issue No.2 as to quantum of liability was 
also decided in favour of the Plaintiffs/Respondents No.1 to 3 and 
against the Appellant, and rest of the Respondents. They were jointly 
and severally held liable to the Respondents No.1 to 3 in the sum of 
Rs.27,o97,43.62/- with profit/mark up at rate of 15% per annum 
from the date of judgment till recovery of the amount with costs. The 
amount of compensation so decreed also included compensation of 
Rs.300,000/- for each of the minor plaintiff. 
 
11. 
 
This judgment was challenged by the Appellant-NLC 
only, through High Court Appeal No.329 of 2005 and a learned 
Division Bench of the High Court maintained the judgment and 
decree with modification and the additional compensation awarded 
to the minor children of the deceased at Rs.300,000/- per child, 
which was considered to be on higher side, was revised to 
Rs.100,000/- per child. Hence, this appeal. 
 
12. 
 
Learned ASC for the appellant took serious exceptions 
to the impugned judgment passed in the High Court Appeal. It was 
Civil Appeal No.1000 of 2006 
                                                           
5
contended that the accident occurred due to sheer negligence of 
Respondent No.6 KDA/CDGK, who failed to perform its public duty, 
in as much as, it failed to install dividers as ought to have been done, 
they failed to take due care as an ordinary prudent person would 
have taken. It was urged that death of the deceased was caused by 
actionable negligence, default and wrongful act of the KDA/CDGK. It 
was urged that if at all, the suit should have been decreed against the 
respondent No.6 KDA/CDGK which was mainly responsible for the 
accident and not against the Appellant-NLC. According to the 
learned ASC, the Appellant cannot be saddled with the liability for 
the neglect in performance of duties by the CDGK/KDA, which was 
responsible to carry out repair and maintenance of the road, and 
while repairing work was underway, it was their duty to take all 
precautionary measures for the diversion of the traffic, putting 
dividers and installing warning lights, signs and other safety 
measures as a person of an ordinary prudence would have taken, had 
such measure been taken accident could be averted.  
 
13. 
 
Mr. Nasir Maqsood, learned counsel for the respondents 
No.1 to 3 contended that there is no denial of the unfortunate 
accident that took the life of sole bread earner of Respondents No.1 
to 3. He has drawn our attention to the evidence of Mst. Naseem 
Akhtar, EX.P/1 widow of the deceased driver, who in response to a 
suggestion in cross examination stated that “As matter of fact the 
accident took place on account of negligence on the part of 
defendant No.4 (CDGK/KDA), as well as defendant No.2 i.e. the 
appellant herein (NLC). He also drew attention of the Court to the 
deposition of eyewitness of the incident, Muhammad Ihsanul Haq 
(Ex 2/1), who was driving another PIA Van and was just behind the 
ill-fated Van of the Sher Azam Khan since deceased, had 
categorically stated “that the vehicle driven by the defendant of the 
NLC emerged from the wrong side in a high speed and collided with 
Van of deceased and hit him resulting into the death of driver and 
three Airhostesses as well”. His testimony on such a vital aspect 
proving negligence of the Driver of the Appellant had gone rebutted.  
 
14. 
 
Mr. Nasir Maqsood, learned ASC contended that the 
Appellant cannot shift its burden on the shoulder of other 
wrongdoer/tortfeasor. It was urged that it is a case of joint or 
Civil Appeal No.1000 of 2006 
                                                           
6
composite negligence, Appellant is vicariously liable for the wrongful 
act of its driver; they cannot be totally absolved of their liability, 
which is joint and several with driver/Respondent No.5 and the Civic 
Agency namely CDGK (KDA)/Respondent No. 6 herein who were 
also negligent and failed to take due care and caution as is expected 
from a person of an ordinary prudence. He further urged that the 
driver of the offending vehicle was not produced by the Appellant, 
withholding such an important witness and wrongdoer by the 
Appellant, negative inference is to be drawn. It was, therefore, 
contended that the Appellant and Respondents No.4 to 6 are jointly 
and severally liable for the composite negligence, which resulted in 
loss of valuable life of the deceased driver. He relied on a large 
number of cases from Pakistan and Foreign jurisdiction, including 
the one reported as Karachi Transport Corporation v. Latif-Ur-
Rehman and others (1993 SCMR 1149) to urge that Courts have 
invariably deprecated the trend prevailing with the public 
functionaries, of contesting and prolonging the fatal accident cases, 
denying the bereaved families of their due rights and compensation, 
by raising frivolous pleas and dragging the citizens to highest Courts 
in appeals on frivolous and untenable grounds, thus  adding salt to 
the injury of such persons. 
 
15. 
 
We have heard the arguments and perused the record. 
We have noted that the accident that took life of the driver of PIA 
Van was caused due to the negligence of the Respondent No.5/driver 
of the appellant-NLC coupled with negligence of CDGK/KDA for 
failure to take precautionary and preventive measures to avert any 
untoward happening. In fact, the appellant on one hand not only 
failed to cross examine any of the Plaintiff’s witness on material 
aspect of the case and secondly failed to lead any evidence to rebut 
the claim in suit and lastly, in the instant Appeal the Appellant-NLC 
have tried to shift the entire blame of the accident and of the liability 
to compensate on Respondent No.6 CDGK (KDA) alone. Both the 
learned Single Judge in Chambers and the learned Division Bench 
have appreciated the evidence. Suit was decreed in the sum of 
Rs.27,09,743.62/- jointly and severally with profit/markup at the 
rate of 15% per annum from the date of judgment till the recovery. 
The compensation included Rs.300,000/- for each of the three 
minors. In Appeal, however, the learned Division Bench on proper 
Civil Appeal No.1000 of 2006 
                                                           
7
consideration modified the judgment and decree to the extent of 
revising the compensation from Rs. 300,000/- to Rs. 100,000/- for 
each of the three then minor plaintiffs and such finding of fact is 
based on proper appraisal of the evidence on record. No error of 
misreading or non reading of the evidence has been pointed out by 
the learned counsel for the appellant. 
 
16. 
 
Now adverting to the contentious assertion of the 
learned ASC for the Appellant that the Respondent No.6 CDGK 
(KDA) is solely responsible for the unfortunate incident, therefore, 
suit should have been decreed against such Respondent alone. 
Arguments were considered. As regards joint and several liabilities 
of two wrongdoers namely the NLC/Appellant and the driver of NLC 
offending trailer and KDA/CDGK, the Civic Agency responsible for 
the repair work, they were held liable by the learned Single Judge, 
who aptly dealt with the contention as raised before us thoroughly in 
paragraph 15 of the impugned judgment, reproduced hereinabove.  
 
17. 
 
Finding against the CDGK (KDA), Respondent No.6, the 
agency for executing road repairs is as follows; 
““13. 
from the above evidence it is clear that one side 
of Shahra-i-Faisal road was being repaired by the 
defendants No.4 through contractor therefore it was 
closed for traffic. The traffic was diverted to the other 
side of the road. Under the circumstances the 
defendants No.4 were required to make proper 
arrangements for the smooth flow of the traffic and to 
make adequate arrangements to caution the traffic 
flow by affixing barricades, flicker lights with standby 
generators, diversion signboards fixed on either end of 
the intersections of the road, also barricades and flicker 
lights in the middle of the road for smooth flow of the 
traffic on the road and for the guidance of the dual 
traffic on one side of the road and should have also 
deployed traffic constables on the road. The eyewitness 
Muhammad Ihsanul Haq clearly admitted that no such 
signs or lights were available on the road for the 
guidance of the traffic. The evidence of the witness went 
unchallenged as the defendants No.4 did not cross-
examine him on the above points of his evidence nor the 
defendants No.4 that defendants Nos.4 and 2 are also 
liable to pay compensation.” 
 
18. 
 
There 
is 
no 
statutory 
definition 
of 
the 
word 
“negligence”. However, in Oxford Dictionary (Volume-VII of 
1933), it is defined to mean “(1) want of attention to what ought to be 
done or looked after; carelessness with regard to one’s duty or 
business; lack of necessary or ordinary care in doing something; (2) 
an instance of inattention  or carelessness; a negligent act, omission, 
Civil Appeal No.1000 of 2006 
                                                           
8
or feature; and (3) a carless indifference, as in appearance or 
costume, or in literary or artistic style; in later use esp. with 
suggestion of an agreeable absence of artificiality or restraint” and in 
Black’s Law Dictionary (Ninth Edition), it is defined as “failure to 
exercise the standard of care that a reasonably prudent person would 
have exercised in a similar situation; any conduct that falls below the 
legal standard established to protect others against unreasonable 
risk of harm, except for conduct that is intentionally, wantonly or 
willfully disregardful of others’ rights”. In claims arising out of 
wrongful or tortuous act, most common defence taken by the 
tortfeasor or wrongdoer is against the injured or the victim of 
tortuous act, is contributory negligence on the part of such person 
who has suffered loss, injury or fatality has himself failed to take due 
care that has resulted and or contributed to the loss, injury or fatality 
to such person or his property (for further discussion on 
contributory negligence one may see Ena Pearl Nance v. British 
Columbia Railway  PLD 1951 PC 47) . In appeal in hand, the 
appellant has not blamed the deceased driver of the contributory 
negligence rather they have tried to shift the liability of negligence on 
the CDGK/KDA, which according to the learned ASC for the 
appellant, failed to perform its duty of care as is required to be taken 
by person of an ordinary prudence, in as much as, while undertaking 
road repair or maintenance work no precautionary measures were 
taken, no warning signs were affixed, at the site of work, to caution 
commuters that could have averted the unfortunate incident.  
 
19. 
 
Plaintiffs/Respondents No.1 to 3 have claimed damages 
from the Appellant being vicariously liable for the act of its driver 
and against the CDGK/KDA, jointly and severally and had built up a 
case of joint or composite negligence. By composite negligence, it 
means where the wrong, damage or injury is caused by two or more 
persons, in such cases each of the wrongdoer is jointly and severally 
liable to make good the loss to the claimant who suffered at the 
hands of such tortfeasors. It is the prerogative of the plaintiff to 
proceed against any or all such wrongdoers. It is not the plaintiff 
who is saddled with responsibility to establish separate liability 
against each of the tortfeasor nor is it considered the responsibility 
of the Court to ordinarily determine liability of each tortfeasor 
Civil Appeal No.1000 of 2006 
                                                           
9
separately, proportionately and or independently in absence of any 
such issue at the trial. The distinction between ‘composite 
negligence’ and contributory negligence’ was aptly noted in the case 
referred to as T.O. Anthony vs. Karvarnan & Ors (2008) 3 SCC 748 
as affirmed in the case of Pawan Kumar & Anr. v. Harkishan Dass 
Mohan Lal & Ors. [2014 (3) SCC 590]. It was laid down by the 
Indian Supreme Court that ‘composite negligence’ refers to the 
negligence on the part of two or more persons. Where a person is 
injured as a result of negligence on the part of two or more 
wrongdoers, it is said that the person was injured on account of the 
composite negligence of those wrongdoers. In such a case, each 
wrongdoer is jointly or severally liable to the injured for payment of 
the entire damages and the injured person has the choice of 
proceeding against all or any of them. On the other hand, where a 
person suffers injury, partly due to his own negligence, then the 
negligence on the part of the injured which contributed to the 
accident is referred to as his contributory negligence.  
 
20. 
 
Instant case is not a case of contributory negligence on 
the part of deceased driver but, of joint/composite negligence of two 
wrongdoers. In a case where plaintiff sues a civic agency or a person 
for its failure or neglect to perform its duty of care resulting any 
damage to his person and or property, initial burden is on the 
Plaintiff to plead and show such negligence and failure to perform 
duty of care by such person or agency. In the instant case, it is noted 
that Plaintiff herself and through her witnesses established that 
CDGK/KDA failed to perform its duty of care as there was no light 
and or cautionary signs forewarning or putting commuters on 
lookout of any potential hazard nor, any divider or fence was placed 
to make road travel safe for the commuters.  
 
21. 
In a case reported as Municipal Corporation of Delhi v. 
Sushila Devi (AIR 1999 SC 1929) a person passing by the road 
died because of a fall of branch of a tree standing on the road, on his 
head. The Municipal Corporation Delhi was held liable as its 
Horticultural Department failed to carry out periodical inspections 
of trees and to trim and or remove the out grown/dried branches of 
tree protruding or hanging out that could be dangerous for the 
passers-by, failure and or neglect to perform such duty was 
Civil Appeal No.1000 of 2006 
                                                           
10
considered sufficient to make them liable to compensate the family 
of bereaved passerby. In another case reported as Municipal 
Corporation of Delhi v. Subhagwanti (AIR 1966 SC 1750); a clock-
tower in the heart of Chandni Chowk, collapsed causing the death of 
a number of persons. The structure was 80 years old whereas its 
normal life was 40-50 years. The Municipal Corporation of Delhi 
having the control of the structure failed to take care and was 
therefore, held liable. In a case reported as Madhu Kaur Vs 
Government of N.C.T. of Delhi and another (AIR 2010 (NOC) 395 
Del (full text of judgment may be retrieved from link 
http://indiankanoon.org/doc/181916184/). In last cited case, it had 
come on record that tarcol and concerts on the road surface were 
badly eroded, which had created a pit (khadda) of about 3 to 4 inch 
deep and about one square foot in area on the road. The 
investigation revealed that the motorcyclist when struck the pit fell 
and succumbed to multiple skull injuries. It was held by the Court 
that failure on the part of the State authorities to maintain road & 
display caution notice in respect of a pit created on surface of road 
amounts to negligence. It is the duty of the State to see that 
contractor performs assigned work properly, and accordingly the 
State was held liable to pay compensation. In Paragraph 16 of the 
cited case, it was held as under:- 
“The respondent authorities should be conscious and 
aware of their duty to maintain roads and ensure that the 
road surface does not have any pits or khada so as to 
cause accidents, thus resulting in injuries and even loss of 
life. It is the obligation and responsibility of the road 
owning agencies to ensure that the roads are maintained 
properly and repairs undertaken. Even if they have 
entered into third party contracts for road maintenance, 
road users should not suffer injuries fatal or otherwise 
because of lack of maintenance, proper care and repairs. 
In case road is found to be damaged, necessary caution 
board/sign boards or barricades should be fixed. In case 
accidents take place as a result of negligence and failure 
to maintain roads, damages can always be awarded to 
persons who have suffered or lost a near and dear one. 
Loss of life because of negligence of state instrumentalities 
results in violation of right to life and liberty under Article 
21 of the Constitution”. 
 
22. 
 
In the instant case as well, the Plaintiff led evidence to 
establish that the accident was caused by the wrongful act of the 
Driver of Appellant-NLC, thus it was vicariously liable. Evidence was 
further led to show that the CDGK/KDA contributed in the 
unfortunate accident as they neglected in performance of their duty 
Civil Appeal No.1000 of 2006 
                                                           
11
of care to display any cautionary signs, warring lights cautioning 
commuter of the closure of one track and or divergence of traffic 
and, further failed to put fences, barricade or dividers making it safe 
for the two way traffic on the same track of the road, such evidence 
had gone unchallenged. As noted above, it is not the Plaintiff’s 
concern as to assess and seek inter-se proportionality of wrong and 
or liability of each of the tortfeasor, nor does the Court ordinarily 
enter into such controversy, in absence of any issue, necessitating 
such determination between the joint tortfeasors inter-se.  In case of 
composite negligence by two or more persons each of the tortfeasor 
is jointly and severally liable to make good the loss to the persons 
who have suffered loss of beloved one or suffered injury or damage 
to his person or property. It does not lie in the mouth of one of the 
joint tortfeasor to turn around and shun his liability and pass on the 
entire liability on the other joint tortfeasor/wrong doer (See Irfan 
Khan v Islamic Republic of Pakistan 2005 MLD 1409, Marine 
Exports (P) Ltd. V.P.Radhakrishan and others AIR 1984 Mad. 358). 
It is the prerogative of the Plaintiff, who has suffered loss or injury to 
recover the entire amount from either or any of the solvent 
tortfeasor, who may in turn seek recovery of proportionate or whole 
amount from the other tortfeasor in appropriate proceedings, after 
making good the compensation to the decree holder.  
 
23. 
 
For what has been discussed above, we do not find any 
substance in the contentions of the learned counsel for the appellant-
NLC to interfere in the well reasoned finding recorded by the learned 
Court of plenary jurisdiction and as maintained in the High Court 
Appeal through impugned judgment dated 26.4.2006.  
 
24. 
 
The appeal is accordingly dismissed with costs 
throughout.  
 
Chief Justice 
 
 
 
Judge 
 
 
 
Judge 
ISLAMABAD, THE 
30.01.2015 
Not Approved For Reporting