Tariq Saleem Sheikh, J. Respondent No.4 moved an application under section 22-A Cr.P.C. before the Ex-officio Justice of Peace, Shorkot, stating that he was a resident of Mauza Kakki Nau, Teshil Shorkot, District Jhang. On 16.05.2021 at about 06:00 p.m. his 6-year-old son Muhammad Muneeb hit a high tension live wire of WAPDA lying on the public road for many days which caused him grievous hurt. He alleged that the Petitioners and Respondent No.5, who are the officials of Faisalabad Electric Supply Company, Shorkot City (FESCO), were responsible for that incident and liable to be persecuted under section 337-H(1) PPC. He prayed that the Respondent SHO be directed to register FIR against them as it is a cognizable offence. The Ex-officio Justice of Peace accepted the said application vide order dated 30.06.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioners lay challenge to that order (hereinafter referred to as the "Impugned Order").
2. The Petitioners contend that on 16.05.2021 a thunderstorm hit the Shorkot City which caused extensive damage. It skewed an electricity pole near the house of Respondent No.4 owing to which the high tension wire crossing over it dropped on the ground and resulted in the accident. The Petitioners submit that they shut down the electricity feeder as soon as they received the complaint regarding damage to the aforesaid pole. They deny that the live wires lay unattended on the road for a week posing threat to the public. According to them, they have not committed any negligence for which they can be held liable and argue that the Impugned Order is perverse.
3. Respondent No.4 has vehemently opposed this petition and contends that the Impugned Order is based on correct appreciation of law and facts and does not call for interference by this Court.
He maintains that the Petitioners and Respondent No.5 are guilty of gross criminal negligence.
4. The police report requisitioned by the Ex-officio Justice of Peace during the proceedings before him supports the Petitioners.
Opinion
5. Negligence describes conduct that falls below the standard that is expected of a reasonable person in the relevant circumstances.1 According to Michael Allen, it is a form of legal fault.2
6. Negligence is of two types, namely, civil negligence (tort) and criminal negligence. According to Ratanlal & Dhirajlal, negligence as a tort is "the breach of a duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property ... The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty;
(2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs because damage is a necessary ingredient of this tort."3 On the other hand, criminal negligence is an act where a person ignores an obvious risk or disregards the life and safety of those around him. The common law did not impose liability for negligence with the exception of manslaughter. Today there are a number of statutory offences where negligence is the sole basis of liability.
7. The courts have dilated on the concept of criminal negligence in almost all the jurisdictions. In People v. Wells, 186 Misc. 979, 66 N.Y.S.2d 161 (1946), the Supreme Court of Warren County ruled that ordinary negligence does not entail criminal liability. It said: "... the defendant can be held criminally responsible only, if his acts under the circumstances constituted a reckless disregard of the consequences of his act, and an indifference as to the rights of others. Mere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be, do not constitute culpable negligence.
There must exist in the mind of the accused at the time of the act or omission, a consciousness of the probable consequences of the act, and a wanton disregard of them."
8. In R. v. Bateman, [1925] All ER 45, the Court of Appeal explained that a person commits criminal negligence when his conduct amounts to crime against the State and calls for punishment and compensation to the victim (or his legal representatives) is insufficient to meet the ends of justice.
It said: "In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, the judges have used many epithets, such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment."
9. In Andrews v. Director of Public Prosecutions, [1937] AC 576, Lord Atkin observed that "simple lack of care such as will constitute civil liability is not enough. For purposes of criminal law, there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case ... but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction."
In Riddell v. Reid, [1942] 2 All ER 161, Lord Porter said: "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability."
10. Lord Diplock formulated his well-known definition of recklessness in R. v. Caldwell, [1981] 1 All ER 961, and R. v. Lawrence, [1981] 1 All ER 974, which postulated that actus reus consisted of the defendant creating an obvious and serious risk and mens rea meant "without having given any thought to the possibility of there being any such risk or, having recognized that there is some risk involved, has nonetheless gone on to take it."4 This formulation caused problems when applied to involuntary manslaughter involving breach of duty. Hence, in R. v. Prentice and another, [1993] 4 All ER 935 (CA), their Lordships explained that it is based on the premise that the defendant himself created the obvious and serious risk. This is entirely appropriate in a case of driving or setting a hotel ablaze because there is no risk unless and until the defendant drives or strikes a match.
However, breach of duty cases such as those involving doctors are different in character. Often the risk to the deceased is not created by the defendant. It is pre-existing which causes the defendant to assume the duty of care with consent. Their Lordships, therefore, held that the proper test in manslaughter cases based on breach of duty is the gross negligence test established in Andrews v. DPP and the Lawrence/Caldwell recklessness approach is inappropriate. They added that in view of the fact that different tests and meanings which have been attached to "reckless" and "recklessness" these words should be avoided when directing juries as to involuntary manslaughter by breach of duty. They ruled that any of the following states of mind of the defendant might constitute gross negligence:
(a) indifference to an obvious risk of injury to health;
(b) actual foresight of the risk coupled with the determination nevertheless to run it;
(c) an appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction;
(d) inattention or failure to avert to a serious risk which goes beyond 'mere inadvertence' in respect of an obvious and important matter which the defendant's duty demanded he should address.
11. R. v. Adomako, [1995] 1 AC 171, again discussed the ingredients of gross negligence. Lord Mackay of Clashfern LC affirmed the continuing authority of Andrews and said: "The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal ...The essence of the matter ... is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."
12. In Jacob Mathew v. State of Punjab and another (AIR 2005 SC 3180) the Supreme Court of India also held that the "factor of grossness" is of vital importance for drawing distinction between the negligence actionable in tort and the criminal negligence. It said: "To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell, 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being 'subjective' or 'objective'."
13. The act causing the injury must be causa causans. In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra (AIR 1965 SC 1616) the Indian Supreme Court approvingly cited the following observations of Sir Lawrence Jenkins which he made in Emperor v. Omkar Rampratap [(1902) IV Bom LR 679] while interpreting section 304-A of the Indian Penal Code: "To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
14. In Attorney General's Reference No.2 of 1999, [2000] 3 All ER 182, the prosecution arose from a disastrous collision between a passenger and a freight train in which seven persons were killed and 151 injured. The Court of Appeal was called upon to consider the following two questions which arose from the ruling of the Central Criminal Court: i) Can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to the defendant's state of mind? ii) Can a non-human defendant be convicted of the crime of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime?
15. On the first question the Court of Appeal said that there may be cases where the defendant's state of mind is relevant to the jury's consideration when assessing the grossness and criminality of his conduct but it is not a pre-requisite to a conviction for manslaughter by gross negligence. On the other hand, the Court answered the second question in negative.
16. Some scholars argue that when we penalize negligence we violate the fundamental moral principle of criminal law that one should not be punished unless one has consciously chosen to do something wrong. Dennis F. Thompson responds: "The moral principle that underlies criminal liability does not imply that persons must have had in their mind at the time of the act the desire for, or awareness of, the harm prohibited by the law.
Rather, as H.L.A. Hart has shown, the principle requires that the act must have been voluntary in the sense that the person could have done otherwise. What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities. We may punish negligence if we can show that a reasonable person would have taken the precautions that the accused failed to take, and that the accused had the capacities to take those precautions."5
17. Negligence has to be proved in respect of one or more elements of the actus reus of an offence.
However, the legislature may create an offence of strict liability.
18. Let's now turn to the case at hand. The Complainant alleges that his son Muhammad Muneeb has been injured due to the negligence of the Petitioners and Respondent No.5 so they are liable to be prosecuted under section 337-H(1) PPC which reads as under: 337-H. Punishment of hurt by rash or negligent act.- (1) Whoever causes hurt by rash or negligent act, other than rash or negligent driving, shall be liable to arsh or daman specified for the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to three years as ta'zir.
19. Admittedly, the Petitioners and Respondent No.5 are officials of FESCO and the allegation against them pertains to discharge of official duty. We have to see whether section 337-H(1) PPC can be invoked against them in this scenario.
20. An illegal conduct that is plainly beyond the scope of a person's duties does not pose serious problem for his prosecution. A person is personally liable when the unlawful act is relatable to his own weaknesses, passions and imprudence whereas the "official crime is better conceived as conduct authorized or supported by the organization, either formally through instructions and procedures or informally through the norms and practices of the organization."6 It is, however, pertinent to point out that even in the so-called official crimes a person may incur personal liability.
He cannot take the plea that he was acting on the orders of his superiors. In Standard Chartered Bank and others v. S. Directorate of Enforcement and others (AIR 2005 SC 2622) the Indian Supreme Court by a majority of 3:2 held that the companies cannot claim immunity from prosecution merely because it is in respect of offences for which punishment of imprisonment is mandatory. In such cases fine can be imposed in lieu of imprisonment.
21. Insofar criminal liability for negligence is concerned, a public functionary or an employee of an organization would incur it subject to two conditions: (i) where he is grossly negligent and his conduct was so bad as to amount to a criminal act or omission in the court's judgment; (ii) the act occasioning the injury must be causa causans. Indeed, the legislature always has the power to enact a law prescribing other conditions.
22. Muhammad Muneeb was injured when he hit high tension wires on 16.5.2021. According to the Petitioners, it was an accident which occurred when a thunderstorm struck the Shorkot City and damaged the electricity pole near his house. The police report fully supports their version and adds that they shut down the feeder as soon as they learnt about the damage to the pole. It specifically negates the allegation of Respondent No.4 that they were negligent in discharging their duties. The Ex-officio Justice of Peace has passed the Impugned Order without considering the said report. In Mureed Hussain v. Additional Sessions Judge and 3 others (2014 PCr.LJ 1146) this Court held that an Ex-officio Justice of Peace is not bound to seek report from the police when an application under section 22-A Cr.P.C. is presented to him but when he does he must give reasons if he is not inclined to rely on it.
23. In my opinion, section 337-H(1) PPC is not attracted to the facts and circumstances of the instant cases. Hence, this petition is accepted and the Impugned Order is set aside.
24. Electricity is very dangerous so the law requires that the organizations/agencies engaged in its generation, transmission and supply should take appropriate measures to protect human life against all eventualities. Any default on their part would make them liable to pay damages to those who suffer loss or injury. The courts invoke the rule laid down in Rylands v. Fletcher, [1868] UKHL 1,7 and the doctrine of res ipsa loquitur to compensate the victims. In the present case, subject to limitation, Muhammad Muneeb may seek that remedy against FESCO.
1 Smith, Hogan, and Ormerod's Criminal Law, 15th Edition, p. 133.
2 Michael Allen, Textbook on Criminal Law, 7th Edition, p. 96 3 Ratanlal & Dhirajlal, Law of Torts, 24th Edition (2002), edited by Justice G.P. Singh, p. 441-442. Also see: Blyth v. The Company of Proprietors of the Birmingham Waterworks, [1856] EWHC Exch J65.
4 Lord Taylor of Gosforth, CJ. in R v. Prentice and another, [1993] 4 All ER 935 5 Thompson, D.F. (1985), Criminal Responsibility in Government. Nomos, 27, 201-240. Available at: https://www.jstor.org/stable/24219389.
6 ibid. 7 The House of Lords laid the rule in this case that "the person who for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."