2020 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Applicant, Muhammad Akram is an accused of the offences under sections 15/17/24 of Gas (Theft, Control and Recovery) Act, 2016 (Act, XI of 2016), and has been booked under FIR No.59 of 2017 registered with P.S. Sui Southern Gas Company, Karachi, and is facing trial before the Court of learned Sessions Judge, Karachi (Central). The applicant preferred his bail plea through Bail Application No.1068 of 2017 before trial Court and by order dated 24.11.2017, the same was declined. Therefore, he has approached this Court through instant application, which is fixed today for confirmation or otherwise.

2. The crux of prosecution case, as unfolded in the FIR lodged by complainant Mohammad Arif, Deputy Manager, Sui Southern Gas Company, are that on 26.9.2017 at about 1100 hours he along with Abdul Rasheed Kalwar, Deputy Manager SSGC, other technical staff of SSGC and police party of PS SSGC reached at Plot No.A-49, Mujahid Colony, Nazimabad No.4, Karachi and found that on said plot there was one Karkhana (Factory) of Dyeing and one Sui Gas meter bearing No.0721692 was installed wherefrom a sui gas line was taken into karkhana (Factory) and 2 stoves of 24 nozzles were working. It was further alleged that due to suspicion the said meter was checked from SSGC Head Office, no record of such meter was available with the SSGC. Therefore, said meter, being fake, was removed by the technical staff and Sui Gas Supply was disconnected. From the spot two stoves of 24 nozzles and one fake meter bearing No.0721692 were taken into custody. The complainant, being Operation Incharge, made enquiry on the spot and came to know that the name of the owner of the said Dyeing was Mohammad Akram son of Saeed Ahmed i.e. present applicant. Despite efforts he could not be traced out from the spot. Accordingly, FIR was lodged and investigation was carried out.

3. Learned counsel for the applicant/accused contended that the applicant is innocent and has been involved falsely in the instant case. He contended that the applicant is a domestic consumer and not commercial consumer, therefore, his case does not fall within the ambit of section 24 of the Act, 2016, the alleged offences are non-cognizable. He further contended that there is gross violation of the provisions of section 6 of the Act, 2016 which provides remedy to the SSGC to file a complaint before the Gas Utility Court. He further contended that there is inordinate delay of one day in lodging of FIR. He next contended that the applicant has neither been nominated in the FIR nor any role has been assigned to him. According to him, alleged offences do not fall within the prohibitory clause of section 497, Cr.P.C. as such the applicant is entitled to the concession of bail. He further contended that no private witness was associated in the case which creates doubts in the prosecution story. According to him, in the circumstances, involvement of present applicant is highly doubtful and the case requires further enquiry. He has placed reliance upon the case of Muhammad Arsalan v. the State 2017 PCr.LJ 434 (Sindh). He prayed for confirmation of interim pre-arrest bail already granted to the applicant.

4. Conversely, learned Special Prosecutor, SSGC, Counsel for complainant and D.P.G. appearing for the State have opposed the confirmation of interim pre-arrest bail contending that the applicant is involved in the offence of theft of gas, fake meter and two stoves, which were taken into custody by the complainant at the spot. He negated the submission of the applicant's counsel that it is a non-cognizable offence. According to him, as per his own admission, the applicant/accused is a commercial consumer and not domestic consumer as such section 24 of the Act, 2016 does apply to his case. However, he could not controvert the fact regarding two punishments provided by the Act itself under section 14 and that the applicant has paid up all dues outstanding against him.

5. Mr. Sadaqat Awan SPP, SSGC and Mr. Habib Ahmed, Advocate for complainant have further contended that case of Muhammad Arsalan (supra) relied upon by the counsel for applicant is not applicable in this case, as in aforesaid case section 24 of the Act was not discussed, besides the facts and circumstances of present case are different from the case of Muhammad Arsalan (Supra). They further submitted that the applicant is a commercial consumer and therefore the offence is punishable under sections 15, 17 read with section 24 of the Act which are not only cognizable but non-bailable too carrying maximum punishment which exceeds the limits of Prohibition clause of section 497(1), Cr.P.C. Mr. Habib Ahmed has further contended that Section 6 of the Act does not attract to the present case as the applicant, being a commercial consumer, the offence committed by him is cognizable and non-bailable. Learned SPP has further argued that the Act is special Law and purpose behind enactment of the Act is to curb the theft and misuse of natural resources, as such this/these crime(s) has/have been increasing day by day causing scarcity of natural resources, besides heavy loss to the National Exchequer. They have also focused upon section 23 of the Act, submitting that applicability of section 103, Cr.P.C. is ousted. They, accordingly, opposed the grant of bail to the applicant.

6. I have considered the arguments advanced by the learned counsel for the parties and perused the material available on the record.

7. In the first instance, I would like to deal with the contention of the learned counsel for the applicant that the alleged offences are non-cognizable as the applicant is domestic consumer and not a commercial consumer. According to him, as per section 24 of the Act, 2016, all offences under the Act if committed by any person other than a domestic consumer shall be cognizable and non-bailable. His contention is that since the applicant is a domestic consumer, therefore, the exception provided in section 24 would apply to his case as such the offences allegedly committed by him would be non-cognizable and bailable. Learned counsel for the applicant has also relied upon subsection (2) of section 5 of the Act, 2016 in support of his contention.

8. In order to properly evaluate the contentions of the learned counsel for the applicant, it would be advantageous to reproduce hereunder the contents of section of the Act, 2016 and subsection (2) to section 5 of the Act, 2016: "

24. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) all offences under this Act if committed by any person other than a domestic consumer shall be cognizable and non-bailable."

9. From a bare perusal of section 24 of the Act, 2016 it is clear that by use of phrase 'all the offences committed under the Act, 2016' except those committed by a domestic consumer the legislature left nothing to debate that all the offence(s) of this Act are cognizable and non-bailable but those where the offence, alleged to have been committed, is in respect of domestic consumer would be "non-cognizable and bailable".

10. The term 'domestic consumer' has been defined by the Act itself as:- "Section 2(d).--"Domestic consumer" means a consumer who receives a supply of gas for domestic purposes" Therefore, to bring a case within exception, provided by the section 24 of the Act the touch-stone would be nothing but whether the alleged offence is against or in relation to a 'domestic consumer' or otherwise?.

11. Now, I would examine the plea, raised by the applicant's counsel, in the light of above touch-stone. Normally, it is not the defence which would control the proceedings under sections 497/498, Cr.P.C. but the case of prosecution or complainant, as the case may be. In the instant matter the allegation was with categorical reference to "Karkhana (Factory) of Dyeing" which (a kharkhana/factory) does not fit into definition of domestic consumer hence such plea, stoutly argued, was entirely misconceived. Even otherwise, as per his own admission, the applicant is a commercial consumer and not domestic consumer. In this respect, reference may be made to the application dated 16.03.2018, addressed by the applicant to the General Manager Commercial, SSGC, Karachi, whereby he had paid the balance amount of Rs.120,000/- towards alleged outstanding/penalty amount imposed upon the applicant by the SSGC. In the said application he stated as under: "

1. A Commercial Gas Meter under Customer No.2675627262(2) already installed at Plot No.A-49 Mujahid Colony, Nazimabad No.4, Karachi."

12. Besides above clear admission, the applicant has also not denied that the gas supply through the said meter was connected to a Karkhana (Factory) situated at the said plot of the applicant which fact itself establishes that the said gas supply was being used for commercial purpose and not for domestic use. In this view of the matter, the exception provided in Section 24 of the Act, 2016 is not applicable to the case of present applicant and instant offence is purely covered by sections 15, 17 and 24 of the Act, 2016 which are cognizable as well as non-bailable.

13. Before attending another question, raised with reference to section 5(2) of the Act, it would be appropriate to first refer the section 6 of the Act which reads as:- SECTION 6: Procedure for complaints and suits for default before Gas Utility Courts.

(1) Where a person is involved in an offence under this Act or where there are sums due or recoverable from any person, or where a consumer has a dispute regarding billing or metering against a Gas Utility Company, a consumer or Gas Utility Company, as the case may be, may file a complaint or suit, as the case may be, before a Gas Utility Court as prescribed by the Code of Civil Procedure (1908 (Act V of 1908) or the Code of Criminal Procedure, 1898 (Act V of 1898)."

14. The criminal jurisdiction under section 6 of the Act (Theft, Control and Recovery) Act-XI of 2016 (hereinafter to be referred as the Act, of 2016) is an original jurisdiction vis-a-vis the offences falling under the Act, of 2016. Obviously, the Jurisdiction under section 6 of the Act provides procedure for filing complaint(s) as well as suit(s) hence prima facie vests both Civil as well as Criminal jurisdiction(s) to the 'Utility Court'. At the moment, I shall consider the nature of the proceedings arising out of the Act, of 2016 relating to civil as well as criminal, as in the instant case. The proceedings taken for the enforcement of the Act, of 2016, is a criminal proceeding whatever may be the source of the Courts Jurisdiction invoked for the enforcement of such a Law, the Act, 2016, is provided by the Criminal Procedure Code of 1898. The criminal proceeding in a criminal jurisdiction is governed by the Code of Criminal Procedure. (Vide Section (sic.) read with subsection (3) to section 5 of Gas (Theft, Control and Recovery) Act, 2016 (Act XI of 2016)."

15. Having said so, now I would revert to attend the question, raised with reference to section 5 of the Act. To properly attend the same, it would be appropriate to refer the same for ease and convenience which reads as: "

5. Powers of the Gas Utility Court,

(1) Subject to the provisions of this Act, a Gas Utility Court shall.-- (a) ...................... (b) ...................... (2) Notwithstanding anything to the contrary contained in this Act, a Gas Utility Court shall not take cognizance of any offence punishable under this Act except upon a complaint made in writing by a person authorized in this behalf by a Gas Utility Company in respect of which the offence was committed. (3) ...................... (4) ...................... (5) ...................... (6) ...................... (a) ...................... (b) ...................... (7) ...................... (8) ...................... (9) ...................... (10) ........................................." The deliberate use of the 'any offence punishable in this Act' in above provision is quite sufficient to conclude that legislatures have left no discretion with the 'Utility Court' to depart from the procedure, provided by section 6 of the Act, for taking cognizance even if the offence is one, committed by the domestic consumer. Worth to add here that the provision of section 31 of the Act has overriding effect as is evident from the language wherein it is formulated as: SECTION 31: "Act to override other laws.

The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force." The status of the Act to be a special law legally cannot be disputed. The Act, being a Special Law, shall have preference over all the enactments and the Law therefore the Code of Criminal Procedure of 1898 and Civil Procedure Code of 1908 which are General Laws have no preference over the Act, which is special enactment. In the case reported as Gulistan Bank Ltd. and another v. Soneri Bank Ltd. and another (2018 CLC 203) honourable Supreme Court held as under: "This view is incorrect because according to the principle of harmonious interpretation the special law would take precedence over the general law (generalia specialibus non derogant). The Ordinance is a special law and therefore, its specific provision would displace the general law which shall be deemed to be inapplicable." Thus, a combined examination of the sections 5 and 6 and the overriding effect of section 31 of the Act help me in concluding that procedure, provided by section 6 of the Act, needs to be followed whenever the question of taking cognizance by a Utility Court arises. The reliance can safely be placed on the case of Javed Iqbal and others v. The State 2016 SCMR 787 wherein it is held as:- "6. ... Indeed, section 196 of Cr.P.C. bars the Court from taking cognizance of an offence under section 295-A of P.P.C., without requisite sanction/approval/permission and failure to obtain such mandatory permission renders the proceedings to that extent a nullity in law. However, we are not impressed by this submission of the learned Sr. ASC, as bar of taking cognizance provided under section 196, Cr.P.C. will not apply to the proceedings before the Anti-Terrorism Courts in view of the combined effect of sections 12, 19, 30 and the overriding effect of section 32 of the ATA, being proceedings under a special statute, which provides exclusion of those provisions of Cr.P.C. and other laws which are inconsistent with the provisions of ATA..." There seems to be deviation from procedure provided by section 6 of the Act. I, however, would say that the lodgment of FIR by the authority may not be declared as illegal or to have resulted into rendering the provision of section 5 of the Act as redundant. The expressions 'cognizance' and 'cognizable' are quite distinct from 'investigation' as mentioned in sections 154 to 157 of the Cr.P.C. Thus, FIR, if lodged by person, defined by section 6 of the Act and followed investigation would never be deemed to be prohibited as not specifically barred by the Act hence would be taken as permissible. This however would not prejudice the legality of section 5(2) of the Act. Guidance is taken from the case of Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892 wherein it is held as:- We may observe with respect that the learned Judge-in-Chamber of the Lahore High Court, Lahore seems to have confused the expression "cognizance" appearing in section 195, Cr.P.C., with the expression "cognizable" and "non-cognizable" finding mention in sections 154 to 157, Cr.P.C. and had also failed to appreciate that taking of cognizance of an offence by a court is a thing quite distinct from investigation of a reported offence by the police or any other investigation agency. The learned Judge-in-Chamber ought to have appreciated that the provisions of section 195(1)(c), Cr.P.C. deal only with taking of cognizance of an offence by a court and the same do not place any embargo upon reporting such an alleged forgery to the police, registration of an FIR in that regard or conducting of an investigation in respect of such an allegation. In same case at Rel. P-897 it has been concluded as:- "An analogy from the last mentioned precedent case could be drawn to conclude that if the provisions of section 195(i)(c), Cr.P.C. place a prohibition against taking of cognizance of an offence by a court except in the given manner then all prior steps taken before the stage of taking cognizance by a court could be deemed to be permissible."

16. After formulating and distinguishing the classification/category of the offences in this case to be domestic or commercial, it has been manifested from record that the applicant is a commercial consumer and not domestic consumer, therefore, his case is covered by sections 14, 15, and 16 of the Act and these Sections are to be read together/conjointly with subsection (2) to section 5 and section 24 of the Act, 2016 and, therefore, is cognizable and non-bailable.

17. Reverting back to the case of Muhammad Arsalan Ahmed (supra), while dealing with similar situation in respect of the alleged offences under the Act, 2016, bail was granted to the accused holding as under: "Perusal of above Section 6 of the Act, reveals that the applicability of Civil Procedure Code of 1908, Criminal Procedure Code of 1898 (Act V of 1898) and Pakistan Penal Code of 1860 (Act XLV of 1860) shall be applicable as mutatis mutandis. However, lodgment of FIR is violation of section 6 of the Act. Bare reading of section 6 further shows that the offence under section 15 of the Act is non-cognizable and proper course for complainant was to file direct complaint. Admittedly, the second part of section 15 of the Act (supra), provides five years punishment for the alleged offence which does not fall within section 497(i), Cr.P.C. Moreover, investigation has been completed and applicant is no more required for further investigation, hence further detention will not serve any useful purpose. There is no apprehension of tampering with prosecution evidence as PWs are officials. In view of above circumstances, case of the applicant/accused requires further enquiry as required by section 497(2), Cr.P.C. Consequently, application in hand is allowed."

18. Although section 24 of the Act was not discussed in the case of Mohammad Arsalan Ahmed (supra) however, bail was granted to him on the basis of settled principle of Law that when the statute provides two punishments, the lesser punishment is to be considered at bail stage. Same position is prevailing in the instant case. Reliance in this respect can be placed on the case of Muhammad Amin v. The State (2017 YLR 609) wherein a learned Single Bench of this Court while granting bail to an accused in identical case observed as under: "

6. Per section 462(c), P.P.C. any person tampering with the distribution of pipe line shall be punished with sentence up to 10 years and not less than 5 years with fine to the extent of Rupees Three Million. It is well settled that while examining the question of bail, Court has to consider the minimum aspect of the sentence provided in schedule for alleged offence. All PWs cited in Challan are officers of SSGC, hence there is no apprehension of tampering with the prosecution evidence if applicant is enlarged on bail as entire material has already been collected by the Investigating Officer which is in safe custody of the prosecution. It is incumbent upon the Court to scan the material prudently while considering the question of bail, and Court should not deprive the accused being influenced from the sensitivity of offence or capital punishment provided for the alleged offence."

19. Yet there is another aspect of the case. Vide his Statement dated 19.03.2018, learned counsel for the applicant has filed/produced before this Court copies of an application dated 16.03.2018 and two pay orders dated 30.11.2017 and 16.03.2018 for the amount of Rs. 1,50,000/- and Rs.1,20,000/- respectively in favour of SSGC purported to be the payments towards outstanding amount/penalty imposed by SSGC against the applicant to the tune of Rs.2,70,000/-. In this way, the applicant has paid the entire outstanding/penalty amount imposed against him by SSGC which also tilts the case in favour of applicant/accused. Therefore, I find substance in the contention of the learned counsel for the applicant that as the entire outstanding amount has been paid by the applicant and there remains no amount to be paid by him, as such he is entitled to the confirmation of the interim pre-arrest bail granted earlier to him. In this context I am fortified with the dictum laid down by honourable apex Court in the case of Shamraiz Khan v. The State reported in 2000 SCMR

157. In the said case honourable Supreme Court confirmed the interim pre-arrest bail granted to the accused while holding as under: "According to prosecution, as contractor of Food Department, the petitioner, in conspiracy with the co-accused, who are all officials in the Food Department, short delivered wheat in bags owned by the government value whereof came to about Rs.15 crores. It is informed by the Advocate General that the major portion of the said amount has already been deposited by the petitioner and according to his instructions, about 525,00,000/- (Rupees five crore twenty five lacs) are yet to be recovered........... In this case where 17 co-accused who are government officials, have already been granted bail and more or less entire amount has been deposited or is going to be deposited, according to the learned counsel it is a good case where the interim bail is liable to be confirmed."

20. In the instant case too, the applicant/accused has already paid the entire outstanding/penalty amount, as such in view of the dictum laid down by the honourable Supreme Court in the case of Shamraiz Khan (supra), his case therefore is, purely covered by subsection (2) to section 497, Cr.P.C. and requires further inquiry. Accordingly, he is entitled to the confirmation of interim pre-arrest bail granted to him earlier. Further, there appears no legal justification to commit the applicant/accused to custody when he otherwise has made out a case for grant of bail because; in such a like cases bail becomes rule and refusal will be an exception. Moreover, all the counsel representing to SSGC, the State and Complainant; however, could not controvert the fact, the sections applied in the FIR carrying two different punishments. It is settled principle of criminal justice and its administration, the lesser punishment provided by the law is to be considered at bail stage and law cannot be stretched upon in favour of prosecution particularly at bail stage.

21. Consequently, instant application is allowed, the interim order granted earlier by this Court in terms of order dated 06.12.2017 is hereby confirmed on same terms and conditions. Above are the reasons for the short order dated 19.03.2018.

22. Before parting with the order, it may be observed that the observations made herein above are only tentative in nature and the same would not affect or prejudice the case of either party at trial. The trial Court shall not be influenced by these observations and would decide the main case on its own merits and upon the basis of the evidence ought to be adduced before it by either party. MH/M-193/Sind Pre-arrest bail confirmed.