On 13.7.1999 deceased Mian Gul, a Lineman in the WAPDA Department while working on an Electric Pole to remove an electric fault, received electric shock, fell on the ground and died.
2. Dead body of the deceased Lineman was taken to the WAPDA Office wherefrom on the written report of Asmatullah Line Superintendent, a case was registered at Police Station Daudzai.
According to the written report of Asmatullah PW, there was some electric fault in the Gulbela Sub Division on the high transmission line and that electric supply was off.
3. Rafiullah appellant who was Line Superintendent and Incharge of the area, had taken staff named in the report including Mian Gul deceased. The deceased when claimed over the High Transmission Pole, received electric shock.
4. Being incharge of the team and officially responsible to supervise the work and in the capacity of Line Superintendent, Rafiullah has been arrayed as accused for offence under Section 319 PPC.
5. He was tried by the learned trial Judge who vide his judgment dated 20.6.2005, the appellant was convicted under Section 319 PPC and sentenced to three years R.I. and to pay Rs, 3,50,000/- as diyat to the legal heirs of the deceased Mian Gul in four equal instalments within the period of two years, also extending him benefit of Section 382-B Cr.P.C. He has challenged his conviction and sentence through instant appeal.
6. It is argued on behalf of the appellant that he is innocent and cannot be attributed any ulterior motive nor malice nor criminal intention. It is further argued that it has been admitted by the prosecution witnesses that the death of the deceased has occurred because of his own negligence by not taking precautions i,e, by wearing rubber gloves and also by not fastening waist belt which could have protected him not only from electric shock but also falling to the ground. It is argued that it is admitted by the prosecution that the Pole where electric shock was received was third in number and earlier too on two Poles on the same line, the deceased had worked where there was no electric supply.
7. Counsel for the complainant stresses on over all responsibility of the accused/appellant and states that it was his duty to obtain permit from the Grid Station in writing to dis-connect the electric supply on the defaulted line. He argued that no permit was obtained and therefore, it was negligent act for which poor Lineman has lost his life.
8. Learned counsel for the State supports the conviction and sentence.
9. Since the procedure for commencing the work on the defaulted High Transmission line was not highlighted by the prosecution, therefore, this Court deemed it proper in the interest of justice to examine Asmatullah, Line Superintendent as CW.
Asmatullah also appeared as prosecution witness as PW-5 but while appearing for prosecution, he only testified about the fact that he has sent the written report for lodging of the FIR.
10. Prosecution has examined in all 12 witnesses whereafter accused was examined under Section 342 Cr.P.C. and he opted to appear as his own witness under Section 340(2) Cr.P.C.
11. After hearing the learned counsel for the appellant, the complainant and the State, I have gone through the evidence minutely.
12. I may make only a brief reference to relevant prosecution witnesses,- therefore, Tasleem Shah PW-3 who worked on the same electric line but on the preceding night, would not be relevant.
Bakhtiar PW.4 who was Assistant Lineman PESCO was present with the accused and the deceased and other employees and stated that in his presence, the deceased was asked by the appellant to climb over the pole and connect the jumper. However, in the cross-examination, he admitted that prior to the present occurrence, the deceased had worked on two electric poles. He further admits that at the time when the deceased climbed over the pole, he was holding the belt around his body but not around the pole.
13. Parvez PW.6 was Driver who admitted that he is in the knowledge that standing trees had fallen on the electric lines and, therefore, electricity was off in the locality. He also admits that he has taken the deceased and the other staff to the third role where the electric supply was off. He further admits that it is duty of the lineman to keep in his possession the rubber gloves and waist belt which are insulators. He has shown his inability if Mian Gil was told that electric supply was off or on.
He further states that on touching the electric cable, the deceased fell to the ground because he had not fastened the belt and also that Mian Gul deceased was not wearing rubber gloves.
Next witness is Meraj ul Haq PW.7 who has also admitted that before working on the Pole in question, they had carried out work on two Poles and at that time the electricity was off and on those two poles Mian Gul had climbed. He further admits that the electric supply was off because the jumper was cut. Last relevant witness would be Taj Muhammad PW.8 who is also Lineman who admits that the deceased was not having rubber gloves with him, though was having waist belt but the same was not fastened with the pole.
14. Asmatullah PW.5 was examined as CW who admits that it is the duty of the Lineman who despite issuance of permits but to take precautions and before working on the pole, shall install ground line earth and if such precautions are taken, then besides re-activation of electric supply, the current would not flow in the line.
15. To constitute a criminal offence, two ingredients are necessary, mens rea and actus rea. In the present case, there is absolute absence of either of the two.
16. Admittedly, the deceased has died an unfortunate death while working on electric pole. He had already worked on two poles immediately before working on the third electric pole and there was no electric supply in the earlier two poles.
It is admitted by all the prosecution witnesses that Rafiullah appellant remained present on the spot throughout. It is not known how the third pole got electric supply when the two earlier poles did not have it.
17. Whether any permit was obtained or not, it could have been proved by examining incharge of the Grid Station concerned but none was examined.
18. Even if it is admitted that it was the appellant who directed the deceased to climb over the pole, it was within his power and since already on two poles, the deceased had worked when there was no electric supply, inference should be that there should be no electric supply in the third pole as well.
19. In view of statement of CW Asma tullah. It was the duty of the. Lineman as well to have taken precautions by installation of ground earth which was not done.
20. As mentioned above, almost all the prosecution witnesses have admitted that the deceased when climbed over the Pole, he was not wearing rubber gloves. Had he worn rubber gloves and even if there was electric supply, the rubber gloves are insulators.
21. No negligence on the part of Rafiullah could be established on record and if any was because of the deceased himself.
22. In absence of any ill-will, motive or malice and when no criminal act is attributed to the appellant, his conviction and sentence recorded are not maintainable. The result would be that this appeal is allowed and the conviction and sentence recorded by the trial Court stand set aside. The appellant Rafiullah is acquitted of the charge. He be set at liberty forthwith, if not required in any other case.