ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Ist. Crl. Bail Appln. No. S-208 of 2015
&
Ist Crl. Bail Appln. No.S-222 of 2015.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
For Hearing.
Date of hearing. 16.9.2015.
Date of order. 30.9.2015.
Mr. Habibullah G. Ghouri, advocate for applicants.
Complainant is present in person.
Mr. Shahzado Saleem Nahiyoon, A.P.G.
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SALAHUDDIN PANHWAR, J- The above two bail applications, having arisen out of one and same FIR, are being disposed of by this single order, as the facts in both the matters are one and same.
2. Applicant Ghulam Shabir Chandio and Baqar Ali Soomro seek post arrest bail in Crime No.88 of 2015 registered at Police Station K.N. Shah for offence punishable under sections 318, 319, 337-G, 337-H, 320, PPC.
3. Succinctly, the case of prosecution is that on 05.5.2015 at 1730 hours complainant Muhammad Rafique Babar lodged FIR stating therein that on 03.5.2015 there had been marriage of his brother Ghulam Shabir; they hired a Coaster No.JE 1484 and early in the morning he, his family members, relatives and co-villagers including male, female and children, came at Dadu. After completing marriage ceremony they were returning to their village on the said Coaster. At that time he, Zulifqar Babar, Ashique Babar aged about 19 years and Sikandar Babar were sitting on the roof of Coaster as well as dowry box was also on the roof, while groom, bride and others were sitting into the Coaster. The Coaster was driven by owner Mehboob Ali Khoso. It is further alleged that when at 9:00 a.m they reached near Sim Culvert where saw electric wires of 11000, crossing the road from northern – southern side, was hanging at very low height. As soon as coaster reached near to the wires, they made ‘hakals’ to driver to stop the Coaster, as the wires would touch with box but the driver did not pay heed and showing carelessness drove the Coaster rashly resultantly wires hit to the iron box. Seeing this, complainant, P.Ws Zulifqar and Sikandar jumped down while Ashique Ali could not succeed to jump, meanwhile front tyre of driver side of Coaster burst and caught fire so also whole the Coaster was covered by electricity current. Ashique Ali due to electric shock fell down and was died as well as Sarfraz aged about 10/11 years, complainant’s mother Suhbat Khatoon aged about 50 years, Mst. Jeeand aged about 45 years, Mst. Amina aged about 40 years, Miss Gulstan aged about 22 years, Miss Khalida aged about 23 years, Mst. Zahida aged about 32 years were died and their bodies were burnt, while Farhan aged about 9/10 years, Ghulam Qadir aged about 50 years, Muharram, Waseem aged about 8/9 years, Kaloo aged about 13 years, Ali Sher aged about 5 years, Hussain aged about 8/9 years, Wajid aged about 11/12 years, Zameer aged about 20/21 years, Shahzaib aged about 5 years, Mst. Karima aged about 30/31 years, Sumear aged about 12/13 years, Parveen, Mst. Khatoon aged about 30 years, Miss Khalida aged about 14/15 years, Mst. Nusrat aged about 23 years, Mst. Bibi aged about 23 years, Mst. Sakina aged about 17 years, Mst. Reshma aged about 34 years, Mst. Nasiban aged about 14 years, Miss Wasai aged about 6 years, Miss Salma aged about 18 years, Mst. Fatima aged about 45 years, Mst. Shabnam aged about 30 years, Miss. Tasleem aged about 17 years, Miss Najma aged about 15/16 years and Muhammad aged about 19 years all by caste Babar became injured due to burning. Complainant party saw that driver made his escape good and light was off as such remaining persons (Baarati) including groom and bride remained safe. Such information was given to Police and police referred the injured to the Hospital. After necessary proceedings corpses were sent to K.N. Shah Hospital for post mortem and rescued persons were sent to Village. Complainant then came at K.N.Shah Hospital and came to know that injured have been referred to CMC Larkana, Dadu, Hyderabad and Karachi and on the way Miss Tasleem, Miss Najma, Farhan and Kouro were died. Corpse of the deceased were brought at K.N.Shah where after postmortem handed over to the complainant party. Complainant has alleged in the FIR that he along with notables had met with Farzand Ali Shah, S.E, WAPDA, Dadu, Chief Engineer Executive, Sukkur SEPCO, Abdul Hafeez Bhatti, Engineer WAPDA Mehar Circle, Irfan Shaikh SDO WAPDA K.N. Shah and Baqar Ali Soomro, Line Superintendent WAPDA, K.N. Shah with regard to the height of 11000 Voltage wires, but they did not pay heed, hence this incident occurred due to their negligence and due to rash driving of accused Mehboob Ali Khoso.
4. It is contended by the learned counsel for the applicants that all the Sections are bailable and in bailable offences bail of the accused is right; that name of the applicant Ghulam Shabir Chandio does not find place in the FIR, and he has been implicated by the witnesses in their statements recorded under section 161, Cr.P.C. It is further contended that applicant Ghulam Shabir Chandio is lower employee in WAPDA, therefore, he cannot be held responsible for any negligence. While other applicant Baqar Ali Soomro has been falsely implicated by the complainant with malafide intention and ulterior motives; that FIR is lodged with the delay of two days and no plausible explanation for such delay is mentioned by the complainant; that bare perusal of FIR clearly reveals that there was entire negligence on the part of complainant party and secondly on the part of the driver of the Coaster, who had placed the iron trunk over the roof of Coaster. It is further contended by the learned counsel that the applicants/accused are in custody and they are no more required for further investigation and if they are kept behind the bars, no useful purpose would be served. Lastly learned counsel in support of his contention has relied upon the cases of Manzoor v. The State 1992 P.Cr.L.J 1374, Ahmed Khan v. The State 1997 MLD 1591, Muhammad Nadeem v. The State 1998 MLD 1537, Muhammad Shakeel Ahmed v. The State 1999 YLR 1368, Yousuf Khan v. The State 2000 P.Cr.L.J 203 and Ilyas v. The State 2011 MLD 849.
5. Complainant is present in person, contends that he has no objection if the bail is granted to the applicants.
6. On the other hand, learned A.P.G has vehemently opposed the grant of bail to the applicants/accused adding that seventeen persons have lost their lives while more than twenty persons have become injured in this unfortunate incident; that applicant Ghulam Shabir Chandio being lineman was responsible for negligence. Learned A.P.G further contended that as far as applicant/accused Baqar Ali Soomro is concerned, he has been implicated by the witnesses in the statements recorded under section 161, Cr.P.C and at bail stage, it could not be thrashed out whether he is innocent or actual culprit; the required length of such 11000 watts was 21 feet but such high transmission of 11000 was at 11 feet; that fact is admitted by WAPDA.
7. I have heard learned counsel for the respective parties and perused the material available on record with their assistance.
8. Before going into merits of the case, I first would like to insist that an act of negligence is not always simple particularly when the negligence results into costing lives of innocent. The degree of negligence shall vary in its consequence from person to person. A negligence in maintaining record cannot be equated with that of negligence of an official resulting into death(s) because earlier can well be undone / corrected by making correction in record but the latter cannot. The term ‘negligence’ per Black’s Law Dictionary (Eight Edition) is:
‘1. The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ right.’
9. It needs not be saying that if the actor of the negligence is aware of consequence of his failure to discharge what a prudent person would have done then such negligence become ‘advertent negligence’ which per Black’s Law Dictionary is defined as:
‘Negligence in which the actor is aware of the unreasonable risk that he or she is creating; RECKLESSNESS. — Also termed willful negligence; supine negligence’
There can be no denial to the fact that all those whose negligence might result into casualty must show extra care and caution while discharging their official duties and they cannot avoid the consequences of their negligence by taking plea of negligence of others so as to hide their own negligence. A collateral negligence may lessen the gravity but cannot absolve one party from consequence of his negligence.
10. Reverting to the merits of the case, the perusal of the record no where shows that defence took a plea that high tension electricity line (11000 KV) was at its proper place. The present applicants / accused are undisputedly entrusted with field work hence at all material time it was their legal and bounden obligations to have a check of their entrusted field or least to have shown the existence of circumstance which could justifiably be believed as to have prevented them. This is not the case of the present applicants / accused but they have claimed their involvement malafide. The applicants however have not been able to show a single circumstance or consideration which could have justified their plea of being falsely or malafide involved. Using or uttering the words malafide or falsely are not sufficient to accept as gospel thereby releasing an accused, who, otherwise appears to be linked but these words must have substance therein. As far as no objection raised by the complainant for the grant bail to the applicants is concerned, in this regard it is worth to mention here that complainant himself is not alone victim of the incident. However, such aspect shall be considered by the trial Court while deciding fate of the case.
11. No doubt the name of applicant / accused Ghulam Shabir does not transpire in the FIR, but the P.Ws have fully implicated him in their statements recorded under section 161, Cr.P.C and he being lineman in WAPDA was responsible for gross negligence and due to his negligence seventeen persons have lost their lives and more than twenty persons have become seriously injured. As far as case for bail of accused/applicant Baqar Ali Soomro is concerned, he being Line Superintendent in WAPDA is supposed to keep vigil on the working performance of linemen, but he did not perform his duty as was required. As both the applicants being public servants were supposed to perform their duties diligently, honestly, sincerely and efficiently, but they did not care for that, which resulted in causing heavy loss of the lives number of people. So far contention of the learned counsel for the applicants/ accused that all the Sections are bailable is concerned, in this regard, it may be observed here that this is heinous offence involving height of dereliction in performance of duty on the part of applicants and in this unfortunate incident seventeen persons have lost their lives for no fault of them and more than twenty persons have become injured. A happy occasion turned into mourning because of negligent attitude of the applicants / accused towards their obligations and duties. Further, the applicants / accused being serving in the WAPDA must have been aware of the consequence of negligence in letting an electrifying wire hanging to catch the people, therefore, they prima facie appear to be guilty of advertent negligence which has been taken cognizance as cognizable offence therefore, the applicants / accused do not appear to be justified in claiming bail on mentioning of the offence without reference to consequences thereof. Accordingly, in such circumstances the order of the learned lower court declining the bail plea of the applicants / accused appears to be justified and same needs no interference. Accordingly, both the bail applications are rejected being devoid of merits. However, the trial Court is directed to proceed with the trial on day-to-day basis and conclude the same as early as possible preferably within a period of three months.
12. Needless to add that observation, if any, shall not prejudice the case of the present applicants / accused at the time of evaluating the evidence.
Judge
M.Y.Panhwar/**