2024 PLP 276 (MLD)

AALIA NEELUM, J.

The appellant-Ghulam Jaffar, son of Muhammad Khan, Caste Malah resident of Purana Imam Kot Jalalpur Bhattian, District Hafizaqbad, has faced trial case FIR No.195-2019, dated 26.03.2019, registered at Police Station Jalalpur Bhattian, District Hafizabad, under section 462-J, Electricity Act. Vide judgment dated 14.05.2022, the learned ASJ/Electricity Utility Court, Pindi Bhattian, convicted the appellant for an offence punishable under section 462-1, P.P.C. and sentenced him to undergo 01 year and 03 months rigorous imprisonment with the direction to pay a fine of Rs.1,00,000/- and in case of default in payment thereof to undergo simple imprisonment for two months further.

2. Feeling aggrieved by the judgment of the learned trial court, Ghulam Jaffar, the appellant has assailed his conviction by filing an instant Criminal Appeal.

3. The brief facts of the case as narrated in the FIR (Ex.PE/1) lodged on the written complaint (Exh. PE) of Zafar Iqbal, Assistant Manager Operation GEPCO (PW-3), are that on 23.03.2019, his staff comprising of Tahir Rehman LS-I (PW-4), Saqib Ali ALM (PW-5) and Rasheed Ahmad ALM (given up PW) went to Mouza Purana Imam Kot Jalalpur Bhattian in connection with a general checking. While checking, Ghulam Jaffar, the appellant, was found involved in committing theft of household electricity by connecting his wires directly to the main line of GEPCO. He (PW-3), along with other employees, removed the meter of the appellant from the place of occurrence, which was taken into possession vide recovery memo (Ex. PA). Hence, this case.

4. After the registration of the case, the investigation of this case was conducted by Amjad Hussain Shah, S.I (PW-2), who, having found the accused/appellant guilty, prepared a report under section 173, Cr.P.C. and sent the accused to Jail by order of learned Area Magistrate. After that, the learned trial court formally charged the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as six (06) witnesses.

5. The learned trial court, after recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the aforestated terms.

6. Arguments heard and record perused.

7. Based on the above-said evidence, it is to be considered if the prosecution has succeeded to prove or not the case against the appellant beyond all reasonable doubt. Per the prosecution, the alleged theft occurred on 23.03.2019, whereas the matter was reported on 26.03.2019. There is almost three days delay in lodging the complaint, which needs to be explained by the prosecution. In the prosecution's case, during the checking of electricity theft on 23.3.2019, the complainant's team removed the meter from the alleged premises. During cross-examination, Zafar Iqbal (PW-3)-Assistant Manager Operations GEPCO, admitted that he had not proceeded to the place of occurrence. However, during his examination-in-chief, he (PW-3) stated that his staff removed the meter of the accused from the site of occurrence. After returning to the office, they reported the matter to him. They produced the meter before him, which he took into possession through a recovery memo (inch. PD), which was attested by officials named above as recovery witnesses. If so, what prevented him (PW-3) from lodging the complaint (Exh. PE) immediately after preparing the recovery memo undated (Exh. PD)? There is absolutely no evidence on the prosecution's side to show the reason for three days delay in lodging the complaint (Exh. PE). Zafar Iqbal (PW-3)-the complainant reported the incident based on hearsay evidence from the surveillance team. He has not witnessed that the appellant was committing theft of the electricity by connecting wires with a direct line of GEPCO. Even the recovery memo (Ex. PD) was prepared by him in the office. Tahir Rehman LS-I (PW.4) deposed that after returning to the office, they reported the matter to the SDO. However, he has not mentioned the name of the SDO.

8. According to the prosecution case, the allegation against the appellant was that he was committing theft of electricity by connecting his wire directly from the main cable/line of GEPCO. Tahir Rehman (PW.4) and Saqib Ali ALM (PW-5) have clearly stated that they have removed only a meter of the accused from the place of the occurrence. However, the wire, connected directly with the main cable/line of GEPCO, was not taken into possession. Amjad Hussain Shah S.I. (PW-2) deposed during examination-in-chief, "On 11.4.2019, I received cable from Moharrar, two meters, which was attached to the meter and took into possession through separate recovery memo Exh.PC in presence of recovery witness who attested the recovery memo." Whereas, Muhammad Nawaz, ASI (PW-l), the then Head Constable, Moharar, deposed during examination-in-chief, "On 26.03.2019 I was performing duties as Moharrar Head Constable at P.S Jalalpur Bhattian. On the same day, Amjad Hussain, SI handed over to me electricity meter (case property) for safe custody. I kept the same in Malkhana. IO recorded my statement under section 161, Cr.P.C." Exh. PC, recovery memo of 2-meter wire is not made known to this court. Muhammad Nawaz, ASI (PW-1), the then Head Constable, Moharar, did not depose a single word that he produced cable attached from the meter before the investigating officer on 11.4.2019, and he (PW-2) detached the same from the meter and secured through recovery memo (Exh. PC). The recovery memo (Exh. PC) was attested by Muhammad Arshad 8/C and Azher Abbas 661/C. Both these witnesses were not examined, nor were they cited as prosecution witnesses.

9. As per the recovery memo undated (Ex. PD), prepared by Zafar Iqbal (PW-3)-Assistant Manager Operations, it was only mentioned "181232 , and nothing way mentioned reflecting from the recovery memo (Ex. PD) that where "single phase Meter No.181232" was installed. It was also not mentioned by whom and when the said meter was removed or whether the same was sealed after removal from the premises. A perusal of the recovery memo (Ex. PD) reveals that the consumer's name and the meter number were changed from the one written earlier after putting "whitener". The seizer. memo (Exh.PD) shows that the connection was in the name of Shahid. Imran, son of Ghulam Jaffer, the appellant's son. Amjad Hussain Shah R.I. (PW-2) deposed during cross-examination, "It is correct that as per record the connection was in the name of Shahid Imran. It is correct that detection bill of same connection was issued and that is part of the police file. I had not investigated to verify residence of the accused." However, no documentary evidence is produced by the prosecution to establish that the appellant is the owner of the house. Tahir Rehman LS-I (PW-4) has deposed during the examination-in-chief that they removed the meter from the accused premises. In the prosecution case, the premises' where stolen electricity was run belong to the appellant. For obvious reasons best known to Zafar Iqbal (PW-3) the complainant, Tahir Rehman LS-I (PW.4), and Saqib Ali ALM (PW-5) have not produced any proof that the premises belonged to the appellant.

10. Tahir Rehman LS-I (PW.4) 51.30 stated in his examination-in-chief that on payment of the detection bill, the electricity meter was received by the appellant on superdari. After that; the meter was installed on his premises. Later due to non-payment of dues, the meter was again removed from the premises of the accused. Ihsan Ullah (LS Retired) (not cited as a witness) removed the meter, and now they cannot trace it. The prosecution witnesses deposed that the appellant received the meter on superdari, which was removed from the premises due to non-payment of dues. The meter was not produced before the Court. Tahir Rehman LS-I (PW-4) and Saqib Ali-ALM (PW-5) have not deposed that, any wire was taken into possession through which the appellant committed electricity theft by connecting the same with the main cable/line of GEPCO. The main allegation against the appellant was that he was committing electricity theft by connecting his wire correctly to the main cable/line of GEPCO. The surveillance team of GEPCO has not secured this piece of evidence nor produced it before the complainant. The prosecution has withheld the best piece of evidence. It is, undoubtedly, the prosecution's duty to lay before the Court all material witnesses and case properties secured during the investigation available to it to unfold its case. Non-production of necessary witnesses or material before the court could be said that the prosecution withheld the best evidence.

11. From the facts and circumstances narrated above, I am confident that the prosecution could not prove its case against the accused beyond a shadow of a doubt, as there were many dents in the prosecution story. In the present case, the possibility of the occurrence is not witnessed by both prosecution witnesses that cannot be ruled out; as such; the conviction and sentence recorded by the learned trial court cannot be sustained. There is insufficient material to conclude that the appellant was guilty of committing the offence he was charged with. Therefore, the findings recorded by the learned trial court must be set aside.

12. Consequently, the appeal bearing Criminal Appeal No.29417 of 2022 (Ghulam Jaffar v. The State and others) is allowed, and conviction and sentence imposed upon the appellant-Ghulam Jaffar is hereby set aside. The appellant is acquitted of the charge by extending him the benefit of the doubt in case FIR No.195 of 2019, dated 26.03.2019, under section 462-j, Electricity Act, registered at Police Station Jalalpur Bhattian, District Hafizabad. The appellant-Ghulam Jaffar, who is in custody, is ordered to be released forthwith, if not required in any other case. JK/G-6/L Appeal allowed.