By this consolidated order, Criminal Miscellaneous No.75736-B and 75066-B of 2024 are hereby disposed of as both the petitions are result of same F.I.R.
2. The petitioners (Muhammad Kabeer Tahir, L.S. and Kashif Tanveer, S.D.O.), being arrayed as an accused in case F.I.R. No. 2357 of 2024, dated 11.06.2024 registered with police station Batapur, District Lahore for offences under Sections 462-I and 322 PPC, seek their pre-arrest bail, after the same was refused by the court of learned Additional Sessions Judge, Lahore vide order dated 27.11.2024.
3. According to F.I.R. Kashif Tanveer, S.D.O. (complainant; later on treated as an accused) Sahafi Colony Sub-Division, LESCO, Lahore submitted an application against Kashif Butt and Majid alias Majhoo, "Star Cable Network" that his Line Superintendent Kabir Tahir reported that Kashif Butt and Majid alias Majhoo (Star Cable Network) are using LT and HT Poles illegally by attaching their cables on it. Several times they were restrained from doing so and their wires were cut down, but they again attached the same. The accused persons also get source of electricity for their Boosters from the LT Poles without any payment, which is causing loss of millions to the WAPDA/LESCO. Both the cable operators have used a lot on Canal Forts II Khaira Pind. On 05.06.2024 at about 09:30 P.M. due to storm the wires of cable network fallen on HT line of WAPDA/LESCO, due to which wiring of some houses in canal forts received current and in House No.120, Block-B one child who put the switch on, received electric shock and succumbed at the spot. It was prayed that against Kashif Butt and Majid alias Majhu strict action be taken for using pols of WAPDA/LESCO illegally and using LT line for said purpose, to avoid loss to WAPDA/LESCO exchequer.
4. After hearing learned counsel for the petitioner, learned law officer for LESCO, learned Deputy Prosecutor General and perusal of record it was observed by me that Kabir Tahir, Line Superintendent (petitioner) reported the matter to his S.D.O. Kashif Tanvir (petitioner) that cable operators were using the electricity poles of their department without any permission/license and they were also using the electricity for their Boosters without any permission and making payment, and due to the storm wire of the cable network fell on HT Line of WAPDA/LESCO and electricity current entered into the cable network system and one child, who was putting the switch on, received electric shock and succumbed at the spot.
5. Both the above petitioners, being LESCO officials, professed complete innocence claiming that they made a report against cable network operators that they were using electricity poles without any permission/license from LESCO and there was no "mense rea" on their part.
6. Cable Network Operators cannot use the electricity poles unless LESCO officials join hands with them. Both cable network operators and LESCO officials have full knowledge that any untoward incident may result whenever wire of cable network shall come into contact with HT wire of LESCO.
Both the above sets of the accused were fully aware that the above said lapse/mischief may cause the death of any person due to electrocution. Mischief of both the petitioners was squarely covered by the definition of "Qatl-bis-Sabab", which under Section 322 of PPC was although punishable with 'Diyat' only, but was shown to be non-bailable as per second schedule appended with Code of Criminal Procedure.
7. Main thrust of learned counsel for petitioners was on the point that deceased child was not subjected to postmortem examination. There was nothing to suggest that his death was a result electrocution, hence conviction for offence under Section 322 of PPC was not legally possible. The Honourable High Courts laid down in plethora of the judgments that post mortem examination of the deceased is not necessary in each and every case. Where prosecution is in a position to prove factum of the death by convincing material, non-conducting of post mortem report would not be fatal to the case of prosecution. If any reference in this regard was required that can be had from 'Abdul Rehman v. The State.' (1998 SCMR 1778), 'Muhammad Riaz v. The State' (1986 P.Cr.LJ 2233), 'Reheem Ullah v. The State' (1985 P.Cr.L.J 463).
Kashif Tanveer, S.D.O. (petitioner), who was complainant of the case and later on treated as an accused, himself mentioned in his application moved for the registration of criminal case that a child in House No.120 of B-Block putting the switch-on, met his death due to the said unlawful act of cable network operators. In our country cable network operators are using the electricity poles for the supply of their services. The said fact, being visible to whole of the public, is judicially noticeable by the Courts under Article 111 of Qanun-e-Shahadat Order and there is no need to prove the same independently. Moreover, when Kashif Tanveer, S.D.O. petitioner, who was complainant and later on treated as an accused, himself admitted in his own application for registration of the criminal case that one child met his death due to electric shock, has to be treated an admitted fact under Article 113 of Qanun-e-Shahadat Order and there shall be no need to prove the same.
8. In the light of said admission, non-conducting of post mortem examination of deceased child, was not fatal to the case of prosecution in any manner. There was nothing on record to suggest that death of the child occurred otherwise than of electric shock. I am of the confirmed view that no premium can be claimed by petitioners on account of said lapse on the part of prosecution.
9. In our country such like incidents resulting from the use of electricity poles by cable network operators are increasing day by day and there is a need to meet the same with an iron hand.
Courts should not have any sympathy for them.
10. Prima facie involvement of both the petitioners in the offence alleged against them could not be ruled out. They failed to establish any malafide on the part of Bilal Rasheed (father of deceased child) or Investigating Officer to falsely involve them. All the circumstances and material floating on the surface so far presented a dreadful picture.
11. In sequel to above discussion, both the petitions have no force and are dismissed. Pre-arrest bail already granted to petitioners is recalled.
12. Needless to mention that any observation made in the above order are tentative in nature and shall not influence the learned trial court in any manner.