IN THE
HIGH COURT OF SINDH AT KARACHI
C. P. NO.D-291/2014
MR.
JUSTICE SALAHUDDIN PANHWAR
Petitioners : Syed Mujahid Rasool
& 2 others,
Through:
Mr. Hussain Bakhsh Saryo, advocate.
Respondents : Province of Sindh
& 4 others,
Mr.
Rafiq Ahmed, Addl. A.G.
Mr.
Malik Khushal Khan, advocate for respondents No.3 and 5.
Date of hearing: 18.02.2014.
Announced on:
SALAHUDDIN PANHWAR, J.
Through instant petition, petitioners have invoked
constitutional jurisdiction of this Court whereby praying as under:-
“to pass the order for quashment of FIR No.5/2014, under section 39 Electricity Act, registered at KESC/Defence Police Station, District South.”
2.
Relevant facts for disposal of this
petition are that petitioners are consumers of KESC (Electric Company) through
Consumer No.LA862935, Meter TC06150 and Consumer NO.LA862936, Meter TC06151 in
the name of petitioner No.1, Consumer No.LA862937, Meter TC06139 in the name of
petitioner No.2 and Consumer No.AL 060060, Meter TD52371 in the name of S.
Abdul Rehman at house No.10-B, 2nd Street, Phase-I, DHA, Karachi and
they are paying electricity bill month wise on regular basis. On 15.01.2014
petitioners received a notice regarding inspection of the meter, thereafter respondents
without observing the formalities disconnected the electricity on the same date
and on 17.01.2014 lodged an FIR No.5/2014 under section 39 of the Electric Act,
at Defence/KESC Police Station. Thus Respondent No.5 has acted against the law
and has violated the Rules and procedure provided by the NEPRA Consumer Manual
which is fully applicable upon the respondent company, relevant portion whereof
is as under :-
|
Charging Procedure |
(i) ------ (ii) ------ (iii) ------ (iv) Once confirm that the illegal abstraction is being done serve notice to the consumer informing him of the allegations and the findings and the requirement of a written reply from the consumer. (v) Wait for seven working days for receipt of reply. (vi) The reply to the notice shall be examined by the officer higher in grade, then the inspecting officer. If the reply is not convincing or if no reply is received or if the allegation as levied are proved, the inspecting officer with the approval of the next higher officer will immediately serve a detection bill for unclaimed energy limited to the period of three billing months previous from the date of establishment of illegal abstraction. (vii) The detection bill along with a disconnection notice for payment within seven days will be issued by the inspecting officer. (viii) Upon payment of detection bill the tampered meter shall be replaced by the DISCO at the cost of consumer and no further action shall be taken by DISCO. Next Higher Civil Court Review Committee of DISCO headed by next Higher Officer in case. In case the dispute remains unresolved even after exhaustive review, the DISCO (DISCO to insert its name) after getting approval of the Chief Executive Officer may lodged the FIR, the consumer may also approach a competent court of law under the relevant provision of Electricity Act, 1910. |
3.
Learned counsel for the petitioners
while reiterating the above contentions, contended that according to the NEPRA
Rules & Procedure as well as Consumer Manual, they were under obligation to
follow the Rules, therefore FIR under section 39 of the Electricity Act is
liable to be quashed. In support of his contention he has relied upon 2004 PLC
(CS) 1579. 2001 CLC 321 (Messrs Erum Heights Residents Welfare Association vs.
KESC limited and others), 2013 MLD 1862 (Muhammad Imtiaz vs. Chief Executive
MEPCO), PLD 2012 Lahore 751 (Haji Muhammad Latif vs. Chief Executive, GEPCO and
others).
4.
Conversely, learned counsel for
respondent NO.3 and 5 has argued that instant petition is not maintainable
under the law as petitioner has efficacious remedy to approach the concerned
trial Court; this is not an extraordinary case where this Court can interfere
the investigation, which is the complete domain of the investigation agency;
proper notice was served upon the petitioners and during examination it was
found that petitioners were committing theft while concealing wires hence FIR
as well as detection bill are legal and in accordance with law.
5.
Heard counsel, perused the record.
6.
While perusal of above referred
Rules, without going into dispute whether these are applicable in this case or
not, it is patent that such Rules nowhere repeal the application of the Electricity
Act nor the same anywhere declares that an FIR cannot be lodged in the matter
of theft. Without diving into the procedure, we can safely say that the
provision of the Section 39 of the Electricity Act is a live provision hence
resort thereof cannot be said to be such an illegality which warrants quashment
thereof. The Act itself has made an act of ‘theft of energy’ as
an offence and punishable , therefore, such proposition that FIR for an
allegation of ‘theft of energy’ cannot be legally entertained, is not sustainable under
the law, particularly where the ‘consumer’ is one as defined by
Section 2(c) of Electricity Act, 1910 which reads as under:-
‘( C ) “Consumer’ means any person
who is supplied with energy by a licensee, or whose premises are for the time
being connected for the purposes of a supply of energy with the works of a
licensee’
It is not the case of the petitioners that they are not
the consumer of the respondents on the contrary they have categorically claimed
to be consumer of KESE (respondents), thus needless to add here that one
can claim rights and exceptions under that law which is applicable to his case
only and not otherwise except those general principles which have universal
applicability. Without prejudice to this, we may also add
here that removing of an electricity connection is something different from an
allegation of ‘theft of energy’ both shall be required to go per their
provided procedure by the relevant law and rules. An allegation of ‘theft of energy’ is
required to be investigated and determined as per law because it is well settled
principle of law that ‘recovery of amount due on electricity consumed by
accused during such period shall not absolve him from liability to conviction’.
The reference, if any, can well be made to the cases reported as PLJ
1986 Cr.C (Kar) 306 and 1986 PCr.LJ 1684. Further, it is the duty
of the investigation officer to examine the substance and all ingredients with
regard to theft committed by the petitioners within the spirit of section 39 of
the Electricity Act. It is settled principle of law investigation is the pure
domain of the investigation agency and same cannot be interrupted unless
extraordinary circumstances warrant the same as held in case of Ghulam Sarwar
Zardari (2004 SCMR 624)
7.
With regard to the case of Muhammad
Shahnawaz (supra) referred by the learned counsel, it is pertinent to
mention that same pertains to the civil
jurisdiction and in that case one injunction application was decided with the observation
that same will not effect upon the fate of the main case, therefore
circumstances of that case are not applicable in these proceedings in any
manner as this case pertains to a criminal offence allegedly committed by the
petitioners.
8.
In view of above discussion and
facts, instant petition is devoid of merits and dismissed in-limine, alongwith
listed application.
J
U D G E