IN THE HIGH COURT OF SINDH AT KARACHI
DATE ORDER WITH SIGNATURE OF JUDGE
Applicant : Abdul Majeed
through M/s Waheed Qazi & Shafqat Zaman, Advocates
Respondent : The State through Malik Sadaqat Ali Khan,
Special Prosecutor, SSGC
Date of hearing : 30.5.2019
Date of order : 30.5.2019
O R D E R
ABDUL MAALIK GADDI, J. Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.12/2019 registered under Sections 15/17/24 of the Gas (Theft Control and Recovery) Act, 2016 at P.S. Sui Southern Gas Company Limited (“SSGC”), Karachi. Now the applicant Abdul Majeed son of Allah Ditta is seeking his release on bail through instant bail application.
2. Concisely, facts segregated from the FIR lodged by one Abdul Rasheed Kalwar, Deputy Manager, SSGC Karachi on 08.3.2019 are that; on the eventful day, he along with Rahim Bux, Deputy Managers SSGC, other Technical Staff and police party of PS SSGC, proceeded to a shop situated at Jama Muhammad Goth, Deh, Manghopir, North Nazimabad, Karachi, found two stoves of 24 Nozzles, running by purloining sui gas through rubber pipe from auxiliary line. Such illegal gas connection was removed by the Suit Gas team. From the spot, two stoves of 24 nozzles and rubber pipe measuring 8/9 feet were taken into possession. At venue of occurrence, found a person on enquiry disclosed his identity as Abdul Majeed, he was arrested. Such memo of arrest and seizure was prepared at the spot. Consequent upon; the case was registered inter alia on the above facts.
3. After registration of FIR, the police concerned started investigation and submitted challan against the applicant before the trial Court.
4. It is inter alia contended by learned counsel for applicant that applicant is innocent and has been falsely implicated in this case by complainant with malafide intention, as he has no concern with stealing Gas from auxiliary line to run his business. Further the complainant party had violated the rules and regulations as provided by the Act and no recovery was effected from his possession, therefore, applicant/ accused could not be held responsible for the alleged theft, as such, sections 15, 17 & 24 of the Gas (Theft Control and Recovery) Act, 2016 are not attracted to the facts of the case. He stressed on the point that no private person from the locality was associated to witness the alleged occurrence, therefore, there is sheer violation of section 103 CrPC. Per learned counsel that the complainant has not complied with the provisions of Section 6 of the said Act, as according to the procedure laid down therein, the complainant has to file complaint under Section 200 CrPC, but same has not been followed, therefore, entire proceedings in terms of instant FIR are null and void and thus, the entire case is doubtful. Per learned counsel that the statute provides two alternate sentences in this case and in such circumstances, the lesser sentence should be considered by the court for the purpose of grant of bail, which according to him in this case is not more than five years, thus according to him he is entitled for bail.
5. On the other hand, learned Special Prosecutor, SSGC has opposed this bail application and contended that applicant was illegally and unauthorizedly committing theft from the service/ Auxiliary Line for commercial purposes while running his shop of “Samoosa” and “Pakora” by purloining gas, such recovery has been effected from the venue of occurrence in presence of sui gas team and police party, who have no inimical terms with the applicant. He drawn the attention of the Court towards section 23 and argued that since it is a special law, therefore, having overriding effect on the other laws. He also argued that the case registered for the offence under section 15 of the Act, however, section 17 is also applicable for the reason that; alleged theft was being committed for the commercial purposes and the said Act has been enacted to curb the theft of natural resources. He further argued that the offence carries maximum punishment up to ten years and as per Section 23 of the Act, the applicability of Section 103 CrPC is not mandatory and therefore, the applicant is not entitled for release on bail.
6. I have heard the parties through their counsel appearing on their behalf and have perused the record minutely, which reflects that complainant instead of filing complaint has lodged FIR regarding commission of alleged theft of Gas, thus it will be advantageous to reproduce section 6 of the Act, which reads as under:
“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).”
Perusal of above Section 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.
7. It appears from the record that the applicant/ accused was apprehended in the town in broad daylight, but no person from public has been cited as witness of the recovery proceedings. In my opinion, Section 23 of the said Act did not relieve the complainant or I.O. of the case of their duty of conducting investigation in a fair and transparent manner and producing the best of available evidence. On perusal of Section 23 of the said Act, it reveals that this Section has also not expressly excluded the provisions of Section 103 CrPC, thus cannot be ignored without any proper justification. Prime object of Section 103 CrPC is to ensure transparency and fairness on the part of police during the course of recovery, curb false implication and minimize scope of foisting of fake recovery upon accused. Court of law has to apply its independent mind to the facts and circumstances of each case and was not bound to follow the ipse dixit of the police. No reason has been assigned by the prosecution why they did not avail the services of the private persons, though were available at the place of incident/ recovery. It is evident from record that the case has been challaned and this applicant is no more required for investigation. It also appears from the record that whole case of the prosecution is based upon the evidence of the SSGC officials/ police officials, they appear to be interested witnesses. Therefore, their evidence is required to be minutely scrutinized at the time of trial, whether the offence as alleged has been committed by the applicant in a fashion as stated in FIR or otherwise, till then on this score, the case of the applicant requires further probe. Apart from this, the applicant allegedly has been booked in offence under Section 15, 17 and 24 of Gas (Theft Control and Recovery) Act, 2016, which pertains to Tampering with Auxiliary or distribution pipelines of gas and tampering with gas meter: For the sake of convenience, it would be proper to reproduce the said provisions which reads as under:
“15. Tampering with auxiliary or distribution pipelines of gas. (1) Any person who willfully does tampering or attempts to do tampering or abets in tampering with any auxiliary or distribution pipeline of gas not being a main transmission and transportation pipeline but includes a distribution system, distribution pipeline or any other related system and equipment, as the case may be, of gas is said to commit tampering with auxiliary or distribution pipelines of gas.
(2) Any person who commits or abets in tampering with auxiliary or distribution pipelines of gas for the purpose of:
(a) theft of gas; or
(b) disrupting supply of gas,
shall be punished with rigorous imprisonment which may extend to ten years but shall not be less than five years and with fine which may extend to three million rupees.
17. Tampering with gas meter by industrial or commercial consumer, etc. Any person, being industrial or commercial consumer, who does tampering or abets in tampering with any gas meter, regulator, meter index or gas connection or any other related system and equipment, whether to commit theft of gas or for the purpose of unauthorized distribution or supply of gas shall be punished with imprisonment which may extend to ten years but shall not be less than five years, or with fine which may extend to five million rupees, or with both.
24. Arrest for offence against certain sections. 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.”
On perusal of above said Sections, which provide that whoever commits the offence under said sections shall be punished with rigorous imprisonment which may extend to ten years but shall not be less than five years and with fine which may extend to rupees three million and rupees five million respectively. The sentences not less than five years was incorporated in the said act which make the intention of legislator very clear that when case is registered under the said sections, the Court cannot award sentences less than five years and can award sentences not more than ten years. Respectfully following the principle laid down in case of Arshad Mehmood vs. State (1985 PCrLJ 2048) and Muhammad Akhtar vs. The State (NLR 1983 Criminal 723). In the cited cases, it has been held that when the alternate sentences have been provided then lesser sentence can be considered by the Court for grant of bail. In the present case, alternate sentences have also been provided in the act, which is not more than five years, thus the case of the applicant also covers and comes within the ambit of cited case-laws. In view what I have observed above, come to the conclusion that applicant has made out a case for grant of bail, I, accordingly, admit the applicant/ accused on bail subject to his furnishing solvent surety in the sum of Rs.50,000/- and PR bond in the like amount to the satisfaction of the learned trial Court.
8. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant/ accused on merits. It is made clear that in case applicant/ accused during proceedings before the trial Court misuses the concession of bail, then the trial Court would be competent to cancel the bail of applicant without making any reference to this Court but as per law.