2026 PLP 568 (MLD)

Syed Fiaz-ul-Hassan Shah, J.

This Criminal Acquittal Appeal is directed against the Judgment dated 11.11.2021 passed by the District and Sessions Judge Karachi [South] in Sessions Case No. 1011 of 2016, re-The State v. Khursheed Ahmed son of Abdul Hameed, for offence under Section 15 of Gas [Theft Control and Recovery] Act, 2016, 34, P.P.C. registered at Police Station SSGC, Karachi, whereby, Respondent No.2-Khursheed Ahmed son of Abdul Hameed has been acquitted of the charge, extending him benefit of doubt.

2. Brief facts of the prosecution case are that on 26th July 2016 at about 1405 hours, Complainant Mubeen Ahmed Niazi. Assistant Engineer, SSGC, Karachi along with Technical Team and Police Party of PS SSGC Karachi conducted raid at Plot No.G-786, Punjab Road, Manzoor Colony Karachi where one private school "Hira Secondary Public School" was situated. On checking it found that a fake sui gas meter (not working) vide No. A-3429115 was installed on such plot and sui gas was stealing from by using such fake meter through a "U" Shape 9/10" iron pipe which was supplied to 05 KVA Generator (JASCO 5000 U-B-1 green) for supplying of electricity to such school. The complainant party disconnected such said illegal Sui Gas Connection with the assistance of technical staff and recovered articles viz. fake meter, "U" Shape 09/10 iron pipe and one 5 KVA Generator JASCO 5000-UB-I). On inquiry, from the people at spot, it found that the said school was operated by Khursheed Son of unknown, who was not present on spot. The Sui Gas Team obtained photographs of the place of occurrence and prepared memo. of recovery, inspection note at spot so also ASI Abdul Rehman recorded statement under section 154, Cr.P.C of complainant. Later on such FIR was registered on 26.01.2016 at 1730 hours.

3. After completing the formalities, an amended formal charge was framed against the respondent at Ex.3, to which he pleaded 'not guilty and claimed to be tried at Ex.3/A.

4. At the trial, the prosecution examined PW-01 Asad Ghouri Executive Officer, SSGC (Mashir/Eye-Witness) at Ex.04, who produced photographs of place of incident Ex.4/A, 4-A(1) to Ex.04/A-8, memo. of recovery of articles at Ex. 04/B and memo. of inspection of place of incident at Ex.04/C. PW-02 ASI Abdul Rehman (Mashir/Eye-Witness) at Ex.05, who produced statement under section 154 Cr.P.C., FIR Ex.05/A to Ex.05/B respectively. PW-3 Abdul Wahid Lakhiar, Senior Engineer SSGC (mashir/eye-witness) at Ex.06, who produced letter to CM I/C Security Services photographs, inspection note and CC&B report at Ex.06/A to Ex.06/H, respectively. PW-04 Complainant Assistant Engineer Mobeen Ahmed Ansari at Ex.07. PW-05-ASI Abid Shah (Investigation Officer) at Ex.8, who produced station diaries, letter to SHO regarding quantum of loss and other information, letter to SSGC regarding provision of information and records, provisionally quantum of loss, attested copy of undertaking of accused Khursheed Ahmed at Ex.8/A to Ex.8/F respectively; and, the learned Prosecutor for SSGC closed the side of prosecution vide his statement at Ex.09. After closure of the prosecution side, the statement of the Respondent was recorded under Section 342, Cr.P.C, wherein, he denying the allegations, professed his innocence and his false implication in this case and prayed for justice. The Respondent had neither examined himself on oath under Section 340(2), Cr.P.C., nor did he examine any person in his defence witnesses.

5. At the conclusion of trial and after hearing the parties' Counsel, the learned trial Court acquitted the Respondent of the charge, extending him benefit of doubt vide impugned Judgment dated 11.11.2021, as discussed in paragraph-1 [supra].

6. Having felt aggrieved by the said acquittal Judgment, complainant Khursheed Ahmed ('the Appellant') has preferred this Criminal Acquittal Appeal.

7. Learned counsel for the Appellant states that on 26th July, 2016 at about 1405 hours, Complainant/ representative of SSGC along with Technical Team raided at Plot No.G-786, Punjab Raod, Manzoor Colony Karachi where a private school, namely, Hira Public School was running by Respondent/ accused Khrsheed Ahmed son of Abdul Hameed. It was found that a fake sui gas meter bearing No. A-3429115 was installed and natural gas was stealing from the main line. For further confirmation, it was found that such meter number was fake and it has not been issued by the Sui Southern Gas Company Limited and thus a 5 KVA Generator was already misusing the gas; therefore, an FIR was registered under section 15 of Gas Theft Control and Recovery Act, 2016. However, the learned Trial Court through Judgment impugned before me has committed illegality while acquitting Respondent No.2 from the charge, despite the factum that all the prosecution witnesses have deposed that it was Respondent No.2 and none-else who is full control on the premises and misusing the natural gas by impersonation and fraud with a fake meter. He further submits that Investigating Officer during his evidence has produced at Exhibit-8/F, which is an affidavit of Respondent No.2, wherein, Respondent No.2 has categorically given undertaking that he will bear all the losses.

8. On the other hand, learned Counsel for Respondent No.2 has stated that no illegality or material irregularities have been committed by the learned Trial Court while passing the impugned Judgment. Learned Additional Prosecutor General, Sindh has supported the impugned Judgment.

9. I have heard learned Counsel for the parties and perused the material available on record with their able assistance.

10. From a perusal of record, it would be seen that PW-2 Abdul Rehman in his evidence has deposed that "on enquiry the said chowkidar informed that the said school was being run by Khursheed Sahab, who was not available there at that time" while PW-3 Abdul Wahid, Senior Engineer at SSGC has deposed that "the male administrator of the said school available there was enquired about paid sui gas bill who could not produce the same. He disclosed the name of owner as Khursheed Ahmed son of Abdul Hameed and disclosed his cell number 0333......" It has been observed that PW-1 Complainant has already been declared hostile by the prosecution and he has been subjected to lengthy cross-examination, but no fruitful result has been achieved while evidence of PW-1, 2 and 3 has confirmed that gas was theft by misusing through a generator that has been recovered, but none of the prosecution witnesses have been deposed directly against Respondent No.2 that he was the owner, occupier or user of the premises, namely, Hira Public School Consequently, PW-1 in his cross-examination has admitted that "it is correct to suggest that accused Khursheed Ahmed is not the owner of recovered Generator. I cannot disclose the name of the person who had disclosed the name of the Khursheed Ahmed. It is correct to suggest that accused Khursheed Ahmed was not present in the building at the time of raid. We had not verified regarding the ownership of the building, nor we had called any verification from the accused. It is correct to suggest that it is not mentioned in the seizure memo. that the recovered case property was sealed at spot" The deposition of PWs, is at variance and material contradiction found between the evidence of PW-1, PW-2 and PW-3. The former have categorically deposed that Respondent No.2 was not present at the site at the time of recovery and seizure of the fake meter and generator while PW-3 has deposed that male administrator was available at site, on demand Respondent No.2 could not produce monthly bill of the said meter and he has also disclosed his cell number 0333

. Such material contradictions created lost the credibility of the prosecution story and three official witnesses have not confirmed that Respondent No.2 was owner of premises and he was available at site; rather their evidence at all variance and therefore the learned Trial Court has rightly held that it has not been proved that who was the owner/ beneficiary of the premises where the sui gas meter was installed or generator was found rather PW-1 has admitted that Respondent No.2 is not owner of the generator, which has been recovered from the crime scene.

11. Moving towards the evidence of PW-4 Mobeen Ahmed/Investigating Officer, he has deposed that "on 26.07.2016, I along with raiding party comprising upon Abdul Wahid Lahaiar, Asad Ghouri, police party headed by ASI Abdul Rehman and Technical Team left our head office and reached at Plot No.G-786, Manzoor Colony, Punjab Road, Karachi where we found Hira Public School comprising upon ground + two story building. There on backside of the said school building, a gas meter G4 [used for domestic purpose] was installed there where In charge Abdul Wahid Lakhair noted its number and verified from Head office and found that there was no billing against the said meter". Careful examination of the evidence of Investigating Officer as well the Exhibit-8/F, which was the affidavit allegedly sworn by Respondent No.2, I have noted that Investigating Officer has produced an attested copy in respect of said affidavit and not the original and same has been though marked as Exhibit-8/F, which is still inadmissible evidence in view of requirement of Article 76 of the Qanun-e-Shahadat Order, 1984, as the prosecution was under burden to produce the primary evidence and in case of loss or misplace of the primary evidence, an application to seek permission must be filed during evidence which was mandatory under Article 76 of Qanun-e-Shahadat Order, 1984. It has not been complied with by the prosecution, therefore such Exhibit-8/F cannot be held admissible document and cannot be read into evidence while passing impugned Judgment as it has rightly done by the learned Trial Court. Even such factum has not been attributed to Respondent No.2 during recording his statement under section 342, Cr.P.C., therefore, it is settled criminal jurisprudence that when a material has not been attributed to an accused present while facing trial, such material would not be considered. The admission of Investigating Officer during his cross-examination that "wall" at crime scene does not show that it was a Hira Public School, created further dent in the case of prosecution. He admitted such averments and deposed. "It is correct to suggest that the photographs produced at Ex.6/B showing the line was being disconnected by a person on a wall does not show that it was of Hira Public School. It is correct to suggest that according to two pictures produced at Ex.6/C, the picture of gas pipe line wall is seems to be separate from the school building picture. It is fact that memo. of inspection of place of incident was written by me".

12. It is well established law that in the absence of direct evidence, a witness failing to meet the requirements of Article 71 of the Qanun-e-Shahadat Order, 1984 cannot qualify as a direct witness. In cases where the crime or offense is unseen, unwitnessed, or based on hearsay evidence, the prosecution must rely on strong circumstantial evidence to establish guilt. Reliance can be placed on the case report as "Aseem Khan and another v. Mujahid Khan and others", (2016 SCMR 274). It was held that:

31. As discussed earlier, the entire case of the prosecution is based on circumstantial evidence. The principal of law, consistently laid down by this Court is that different pieces of such evidence has to make on chain, an unbroken on where one end of it touches the dead body and the other the neck of the accused. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorded in crimes entailing capital punishment. However, the prosecution failed to substantiate these essential ingredients through credible and convincing evidence and the prosecution did not satisfactorily demonstrate the existence of a subsisting liability or the requisite mens rea on the part of the respondent by developing link of said Respondent with the crime scene "Hira Secondary School". This failure has materially eroded the evidentiary value of the prosecution's case and vitiated the trust of this Court in the complainant's version. In this regard, reliance is placed on the authoritative pronouncements of the Hon'ble Supreme Court in Muhammad Rafiq v. State (2014 SCMR 1698), Usman alias Kaloo v. State (2017 SCMR 622), and Nasrullah alias Nasro v. The State (2017 SCMR 724). Besides, the doctrine of double innocence is fully applicable in the case of respondent. Accordingly, the trial Court has rightly appreciated the evidence and record.

13. In view of above, the prosecution has proved the case for recovery of fake meter and generator from the crime scene that the theft was done through a fake meter, but it has not been proved that it was in fact Respondent No.2. The relationship of the Respondent No.2 with the crime scene "Hira Secondary School" on both account be it may owner/ occupier of building "Hira Public School" or Administrator/ Principal of said school is missing due to lacking of documentary evidence or oral evidence of prosecution. Consequently, no ground is made out; the instant Criminal Acquittal Appeal is dismissed. JK/S-76/Sindh Appeal dismissed.