SHAHNAWAZ TARIQ, J.---Through the captioned criminal miscellaneous application, applicant Tabish Gauhar has approached this Court to quash the proceedings emanating from FIR No,163/2010, pending in Sessions Case No,756/2010, under section 319, P.P.C. Before the Court of learned Sessions Judge, Malir Karachi.
2. The relevant facts narrated in the FIR are that on 28.07.2010, at 0330 hours, the complainant received phone call from one Ahsan who told him that his son Fahad Rehman was critically injured after receiving electric shocks from the broken electric wires lying on the road, near bungalow No,147/148, Phase-2, Malir Cantt., and he brought him to Combined Military Hospital (CMH), Malir Cantt., to seek medical assistance. The complainant reached CMH instantly, where doctors had provided first aid to his son but informed him that his condition was critical because of severe burn injuries and advised him to shift the injured to burns hospital. Therefore, he shifted his son to Patel Hospital, Gulshan-e-Iqbal, Karachi, but due to .Serious burns his son could not survive and died on 27.07.2010. He buried his son at Army Graveyard, Malir Cantt. The complainant was in shock and was unable to think clearly, because of which he could not instantly report the incident to police. He claimed that his 24 years old son died due to the negligence of the staff of KESC/KE. It is further averred that Manager, Zameer Shaikh; General Manager, Liaquat Khuja; General Manager Operation, Abdul Majeed and Chief Executive Officer (CEO), Tabish Gauhar of KESC/KE were responsible for acting negligently, and prayed to initiate action against them in accordance with law.
3. Learned counsel for the applicant contended that applicant is innocent and has been falsely implicated in the instant FIR. He submitted that FIR was belatedly registered by the complainant, which is false, motivated and based on mala fide intention to harass and humiliate the applicant.
He further contended that no specific role has been assigned to the applicant in the commission of the alleged offence. He also submitted that there is no admissible evidence available against the applicant to show that he was responsible for the alleged offence or the incident took place at the behest of the employees of KESC/KE. He further contended that the applicant is CEO of KESC/KE and was implicated deliberately to defame him and damage his reputation.
4. Learned counsel for the applicant further submitted that on the day of the alleged incident, there were heavy rains in Karachi which had paralyzed the life of city and caused major damage to the infrastructure of KESC/KE which was an act of God and beyond the control of the employees of KESC/KE. He submitted that the details of damages were reported through print as well as electronic media. The employees of KESC/KE made serious efforts to repair the damages caused to the infrastructure as well as to restore the supply of electricity to the affected areas of Karachi. The alleged incident occurred on 28.07.2010, at 0330 hours, while the complainant lodged the FIR on 09.09.2010, at 1600 hours, without furnishing plausible explanation for the delay in this regard. He further submitted that during the period of the incident, applicant was out of country on an official assignment as such he was not directly responsible for any kind of negligence. He submitted that complainant and PWs are not eye-witnesses of the incident and the entire evidence is based on hearsay which is not admissible under the law. He contended that post-mortem of the deceased was not conducted and death certificate was issued by Patel Hospital which is not admissible. He also submitted that the contents of FIR are self-contradictory and in the interest of justice FIR may be quashed.
5. Learned counsel for the complainant contended that there was rain on the day of the incident but due to non-maintenance, there were broken electric wires at the place of incident. He submitted that due to the gross negligence of the employees of the KESC/KE, the fallen wires were not repaired for hours. He submitted that each and every case has to be decided on its own merits.
The applicant is responsible for the alleged offence of Qatl-e-Khata, as the young son of the complainant was electrocuted due to the broken wires of the electric pole. He further submitted that the plea of alibi is not maintainable at this stage and he may file the photocopies of passport before the trial Court during the trial. The section 319, P.P.C. Makes the applicant liable for payment of .Diyat and he has to pay Diyat amount as per notification of the Government. He also contended that Challan has been submitted before the competent Court, therefore, applicant may face the trial and the application for the quashment of FIR is liable to be dismissed.
6. Learned APG supported the contention raised by the learned counsel for the complainant and submitted that instant application is liable to be dismissed.
7. At this juncture, to determine the question of quashment of criminal proceedings, I would like to refer the following case law:-
(a) In the case of Moula Bux and other v. State, PLD 2010 Karachi 204, it was observed as follows:- "Grounds usually available under S. 56I-A, Cr.P.C. For quashing criminal proceedings, were (a) jurisdiction defect; (b) patent violation of some provision of law; (c) the allegation as contained in the complainant or FIR even if believed, no case was made out and the continuation of the proceedings would amount to sheer abuse of process of the Court; (d) when an endeavor was made to enforce civil liability through the machinery of criminal court and (e) in certain cases, inordinate delay amounted to abuse of process of court. Determination of the guilt or innocence of accused depended upon the totality of facts and circumstances revealed during the trial.
Exercise of power under S. 561-A, Cr.P.C. By High Court at pre-trial stage, could not further the ends of justice, if undertaken to determine whether the prosecution evidence likely to come on record was true or false. Inherent jurisdiction as conferred upon High Court pursuant to the provisions as enumerated in S. 561-A, Cr.P.C. Was neither alternative nor additional in its character and was 40 be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure was available. Provisions under S. 561-A, Cr.P.C. Should not be used to obstruct or divert the ordinary course of criminal proceedings. "
(b) In case of Abdul Razzak Lashari and three other v. Government of Sindh and others 2015 YLR 1082, the learned D.B has observed as follows:- "We are also fully conscious of the fact that the inherent powers of this Court to quash proceedings are exercised rarely, however, as laid down by the Apex Court in the case of State v.
Asif Ali Zardari referred to by Mr. Zuberi that in exceptional cases such jurisdiction can be exercised without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrants to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
(c) In case of Maqbool Rehman v. The State, 2002 SCMR 1076, the Hon'ble Supreme Court has observed as follows:- "9. In law, there is no warrant for the argument that since the charge had been framed by the trial Court, proceeding should not be buried by way of quashment. The petitioner appears to be laboring under a misconception of law that in all cases where the accused persons are summoned by a Court of law, it is incumbent upon the Court to record the evidence. There is no invariable rule of law and it will depend on the facts of each case whether to allow the prosecution to continue or to nip in the bud. In the case in hand, we think that the course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice. The grounds, which prevailed with the High Court for exercise of its inherent jurisdiction, are neither artificial nor perverse or shocking. Indeed in the circumstances of the case High Court was under a duty to ensure that the process of law was not allowed to be misused and indeed by passing the impugned judgment it has prevented the mischief and advanced the cause of justice. "
In the above referred case law, it was held that to meet the ends of justice, criminal proceedings can be quashed if it is apparent that it would not result in conviction or liabilities to be enforced are civil in nature.
8. The second plea raised by the learned counsel for applicant regarding the broken electric wires as result of heavy rains being an act of God needs further understanding. Act of God defined in Black's Law Dictionary, eight edition, page 37, is reproduced as under:- "Act of God. An overwhelming, unpreventable event caused exclusively by forces of nature, such as earthquake, flood, or tornado. "
9. In case of M/s. Jahangir Services v. Mst. Bibi Rukhsana Begum, PLD 1995 Karachi 329, it was observed that the words "Act of God" embody a very wide range in different senses such as literal sense, judicial sense and religious sense. In case of Fatal Accidents, the Courts have to deal with such contention in its judicial sense. Any party who claims that any act was the "Act of God" then onus would be on the same party to prove that it was innocent and the incident was the "Act of God."
10. In case of Transco plc v. Stockport Metropolitan Borough Council, 2003 UKHL 61, His Lordship Hobhouse has explained an act of God as follows:- "59. Secondly, arguments have been advanced relating to the defences recognised in Rylands v.
Fletcher as well as in cases following it. These defences were the same as those used elsewhere in the common law in relation to strict liabilities and related to the causal connection between the relevant damage and conduct of the defendant. Thus 'act of God' was always a common law exception. It was metaphorical phrase (like "fate") with a religious origin used to describe those events which involved no human agency and which it was not realistically possible for a human to guard against: an accident which the defendant can show is due to natural causes, directly and exclusively, without human intervention and could not have been prevented by any amount of foresight, pains and care, reasonably to be expected of him. "
11. If the above verdict of Lord Hobhouse is broken down, the act of God is one:
(i) which involves no human agency,
(ii) which is not realistically possible for a human to guard against,
(iii) which is due to natural causes and
(iv) which could not have been prevented by any amount of foresight.
12. It is significant to mention that the applicant cannot save himself under the garb of 'act of God' from his mandatory, and essential responsibilities for which he is bound to perform and ensure the level of repairing, overhauling and restoring of any possible damages to be caused to the infrastructure of KESC/KE. The object of it is to minimize the apprehension of the damage and ensure the safety of the lives of the general public. The responsibility for public safety which includes welfare and protection of general public is not only limited to governmental responsibility but also to any private company involved in work of public nature. In the present case KESC/KE is responsible, being the provider of electricity to the public, for the maintenance of its infrastructure for the sake of public safety and cannot be absolved from this responsibility under the guise of act of God.
13. It is essential to refer to Chapter 12, of Consumer Service Manual, titled as "Safety and Security" as follows:- "12.1. GENERAL:- In order to prevent accidents which may result in injury or death, or damage to public or DISCO/NTDC property, the consumers shall abide by general safety requirements of the "Safety Code".
DISCO/NTDC shall take all the safety and security measures to avoid fatal/non-fatal accidents.
The consumers shall be educated through all possible means to observe safety measure in order to avoid any casualty especially during the monsoon season. "
14. It is apparent from the use of phrase "monsoon season" in the above referred clause that the possibility of destruction to the infrastructure from the rains is very much present. Thus, making destruction to infrastructure due to rains foreseeable and would not constitute an act of God.
15. Act of God is an unavoidable and unpredictable event that results from the occurrence of natural causes or forces which is entirely irresistible, uncontrollable and could not have been prevented by the exercise of foresight or carefulness. In present incident of death, it is for the concerned Court to thoroughly adjudge and adjudicate the peculiar circumstances to surface the truth as to whether the electrocution of the son of the complainant was result of the breach of duty which resulted from the lack of required maintenance of electric wires and installed electric poles at the place of the incident or was it exclusively and entirely an act of God. For act of God to apply has to satisfy some basic conditions, which includes the destruction caused by natural forces without any human involvement, making such occurrence impossible to be foresee and prevented.
It is worthwhile to mention that the term act of God should be used in legal and judicial sense rather than literal and religious.
16. It is well settled that provisions of section 249-A, section 265-K and section 561-A of the Code of criminal Procedure should not normally be pressed into action for deciding the fate of a criminal case without conducting regular trial of the case. However, if from the facts and circumstances of the case, it is crystal clear that the trial will not be concluded in conviction of the accused or the complainant has initiated criminal proceedings to achieve the civil liabilities, the aggrieved person can invoke the jurisdiction of the Court for his acquittal at any stage of the proceedings irrespective of the charge has been framed or not. Moreover, the plea of the applicant that on the day of the incident there were heavy rains which caused serious damage to the infrastructure of KESC/KE and caused the death of deceased due to the falling of electric wires was an act of God, is not justifiable as the same is foreseeable, predictable and preventable. The applicant has failed to establish that the maintenance of the wires and electric poles at the place of alleged incident were up to the mark and did not produce any report of the Meteorological Department in support of his claim of rains strong to enough to cause structural damage on the day of incident. It is well settled that the onus to prove any version or claim lies upon the shoulders of the claimant by producing solid and confidence inspiring material and any claim based on surmises and conjunctures without sufficient proof would be contrary to the law and facts.
17. For the reasons discussed supra, I am of the considered view that there is no probability of the applicant being convicted for the alleged offence even if all PWs are examined during the trial, as the complainant under the ill-advice has lodged FIR against the applicant instead of filing a suit for damages, with regard to the act of negligence allegedly committed by the applicant or other officials of KESC/KE. Consequently, instant criminal miscellaneous application stands allowed and the proceedings emanated from FIR No,163 of 2010, under section 319, P.P.C. Are hereby quashed.
However, the complainant is at liberty to file appropriate proceedings for recovery of damages against KESC/KE for the alleged negligence committed by its officers and officials, which resulted into the death of the deceased, and the barrier of limitation shall not come in his way if such proceedings are instituted by the complainant within ninety days from passing of this order.