MUHAMMAD QASIM KHAN, J.---The petitioner (Sub-Divisional Officer, Civil Lines Division, Sheikhupura) has assailed the order dated 25.06.2019 passed by learned Ex-of ficio Justice of Peace, whereby , on an application filed by Ghulam Rabbani-respondent No.4 under sections 22-A/22-B Cr.P.C., against Lineman, Line Superintendent/SDO, the respondent SHO Police Station Saddar , Sheikhupura, has been directed to record his version and proceed in accordance with law .
2. The facts in brief are that responden t No.4 earlier filed a complaint before the SHO Police Station Saddar , Sheikhupura, precisely with the allegation that he (the complainant) has established haveli for cattle, nearby has made a pond for them and at about 50/60 feet away transformer of a tube-well of Haji Fazal Ahmad has been installed on a pole, the earth-pole whereof was planted by concerned WAPDA officials inside the watercourse and supporting wires of the said pole had also been fixed right in the same watercourse. On 04.06.2019 at 12.30 noon, two buffaloes of the complainant were sitting inside the pond, when due to negligence of WAPDA employees current of electricity passed through the watercourse thereby both animals were inflicted severe electronic shock, and resultantly both were hindquarters paralyzed and became unable to walk. According to the complainant this was due to negligence of LESCO officials, as such, a direction for registration of a criminal case was sought, and said direction was ultimately issued by learned Ex-of ficio Justice of Peace through the order , impugned herein.
3. I have considered the respective arguments of learned counsel for the parties and examined the file.
4. It is matter of record that the learned Ex-of ficio Justice of Peace/ Additional Sessions Judge, Sheikhupura had requisitioned a report from the police and said report is part of instant file, wherein, the S.P (Investigation) had observed that previous year four buffalos and recent year two buffalos of the complainant had been injured causing colossal loss to him, as such, he request ed the court to issue a direction to WAPDA to constitute a technical team for site inspection to know whether the electricity had passed through 11000-KV pole or damage had been caused because of water motor and if the electric shock had resulted because of elect ricity pole then complainant be compensated.
5. There is no second opinion on the point that to constitute a criminal offence, existence of mens rea and actus reus are two essentials, as most crimes consi st of two broad elements mens rea and actus reus. Menu rea means to have "a guilty mind." The rationale behind the rule is that it is wrong for society to punish those who innocently cause harm. Actus reus literally means "guilty act," and generally refers to an overt act in furtherance of a crime.
Requiring an overt act as part of a crime means that society has chosen to punish only bad deeds, not bad thoughts. Specific intent and general intent are other terms used to describe a person's state of mind. General intent means the intent to do something that the law prohibits; the prosecution does not need to establish that the accused actually intended the precise result. Specific intent designates a special element above and beyond the actus reus, of the crime, and generally signifies an intentional or knowing state of mind. For example, in the case of theft, the prosecution must establish the accused's intent to steal the property .
6. Keeping the above background of the events as well as legal position in mind, I have perused Section 42 of the Electricity Act, 1910 and observe that normally a company may be liable for a wrong attributed to it, but once an act is committed which constitutes an offence which is punishable then individuals may be held responsible and not the company . This provision of law came under discussion before this Court in the case "Chiragh Ali Chishti v.
Abdul Ghaf far" (PLD 1961 (W.P) Lahore 875), wherein, three complaints were filed against individuals and not the licensee. The said ratio decidendi is not applicable to the facts and circumstances of the instant case, for the reason that in the cited judgment complaint had been filed specifically under section 42 of the Electricity Act 1910 and in that specific perspective it was held that "it will be seen that as a legal proposition it is well established that a company or corporation may be prosecut ed and held criminally liable, except in the case of those offences which cannot be committed vicariously or for which the punishment must of necessity be imprisonment, transportation or death ........" Therefore, in my view the above cited judgment is of no benefit to the petitioner . However , by careful perusal of impugned order it remains admitted position that before issuing the direction for registration of case the petitioner (proposed accused) was not heard and this practice is against the decision rendered by learned Division Bench of Peshawar High Court in Syed ABDUL HAMEED v. Mian IZHAR AHMAD (PLD 2019 Peshawar 154), wherein, with specific reference to the case "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" (PLD 2016 SC 581), held that "It is therefore, observed that the Justice of Peace before passing any order for the registration of the FIR shall put the other party on notice against whom registration of FIR is asked for." Similarly , a learned Division Bench of this Court in the case "Mian Touseef v. District Police Officer" (2017 PCr.LJ 1140), held that"... the concerned Justice of Peace, must provide an opportunity of hearing to the proposed accused before giving a direction for registration of the FIR." The impugned order , therefore, does not fulfill the above requirements settled by this court.
7. In addition to the above, as discussed above in detail, against a wrong, if any, committed by an employee during the performance of his official duties, unless mens rea and actus rea is established, launching criminal proceeding against him for such a wrong, is least permissible exercise, and in such circumstances the course available to an aggrieved may be to file a suit for damages. Reference is made to the case "Rafiullah v. The State" (2006 YLR 1345 Pesh) and "Tabish Gauhar v. The State" (2016 PCr.LJ 1398-Sindh). The later judgment has been rendered in a case under section 309 P.P.C., where a person died after receiving electric shocks from the broken electric wires lying on the road and CEO of KESC was implicated and the Hon'ble Sindh High Court, quashed the proceedings while holding that: "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."
8. ##TS ## For what has been discussed above, the impugned order passed by learned Ex-of ficio Justice of Peace is not sustainable and is set-aside. However , as held in the case "Tabish Gauhar v. The State" (2016 PCr.LJ 1398-Sindh), the complainant will still be at liberty to file appropriate proceedings for recovery of damages against WAPDA/LESCO for the alleged negligence committed by its officers and officials, which allegedly caused physical damage to the buffaloes of the complainant and establish his claim before the relevant forums, and the barrier of limitation, if any, shall not come in his way, if such proceedings are instituted by the complainant within ninety days, from passing of this order . Disposed of.