2022 M L D 1664
[Balochistan]
Before Muhammad Kamran Mulakhail and Rozi Khan Barrech, JJ
SUI SOUTHERN GAS COMPANY LTD., REGIONAL OFFICE and others ---Appellant
Versus
MUHAMMAD RAHIM and others ---Respondents
Criminal Acquittal Appeals Nos.333, 334, 335, 336, 337 and 338 of 2021, decided on 30th
September, 2021.
(a) Gas (Theft Control and Recovery) Act (XI of 2016) ---
----S.5---Criminal Procedure Code (V of 1898), S.154 ---Powers of the Gas Utility Court ---
Filing of complaint ---Lodging of FIR ---Scope ---Offe nces punishable under the Gas (Theft
Control and Recovery) Act, 2016, are non -cognizable in nature, thus the only course
provided by S.5 is to file a complaint before the Gas Utility Court ---Registration of FIR for
offending the provisions of the Act would be mala fide and coated with ulterior motive.
(b) Words and phrases ---
----'Notwithstanding' ---Expression 'Notwithstanding anything to the contrary contained in
this Act' ---Connotation.
Word 'Notwithstanding' which in legal parlance is known as 'Non obs tante clause',
inherently connotes and denotes a meaning which gives an overriding effect, wherever the
same is used, it employs an implied expression of a prohibited degree of an action. Similarly
when a phrasal expression stipulates that 'Notwithstanding anything to the contrary contained
in this Act', any law or for that matter, the present one, any departure from their expressed
and implied stipulation tantamount to a clear deviation from a mandatory provision of law ---
Thus, in no case is permissible to stay or sustain.
(c) Administration of justice ---
----When a law requires anything to be done in a particular manner, it should be done in that
manner and not otherwise.
(d) Constitution of Pakistan ---
----Arts. 199 & 4 ---Constitutional jurisdiction ---Right of individuals to be dealt in
accordance with law ---Scope ---Such is an inalienable right of every citizen to enjoy the
protection of law and to be treated in accordance with law ---Where the law provides a
specific procedure or mechanism intended to be undertaken against a person by any forum
either judicial, quasi -judicial or executive, if, the said action is patently illegal or against the
mandate of law on the subject, specially the express provisions and the implied spirit of a
statute, which if all owed to stay intact, would tantamount to/and would cause serious breach
of the legal rights of a citizen, the High Court under its constitutional jurisdiction can come
for his rescue.
Muhammad Anwar and others v. Mst. Ilyas Begum and others' PLD 2013 SC 255 rel.
(e) Administration of justice ---
----Justice should prevail, no matter if the heaven falls.
Tahir Ali Baloch for Appellants.
Date of hearing: 22nd September, 2021.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----These Criminal Appeals
under se ction 417(2), Cr.P.C. read with section 13 of Gas (Theft Control and Recovery) Act,
2016 have been directed by Sui Southern Gas Company Ltd. ('SSGC'), through complainant
Amir Muhammad Khan, Deputy Manager, Counter Gas Theft Operation, Quetta ('CGTO')
against the orders dated 15th and 22nd June, 2021 ('impugned orders') respectively, passed
by Sessions Judge Sariab Division ('trial Court'), whereby, the acquitted respondents booked
in FIR Nos. 68, 123, 152, 153, 155, 173/2020 under sections 2(s), 15, 17, 24 , 25 of the Gas
(Theft Control and Recovery) Act, 2016 ('the Act'), lodged with Police Stations Shalkot,
Khaliq Shaheed, New Sariab and Manzoor Tareen Shaheed respectively, have been acquitted
of the charge.
Since common question of law is involved in the se cases, therefore, we are proposed
to dispose of these Criminal Appeals bearing Nos.333 to 338 of 2021 through this common
order.
2. Criminal Acquittal Appeal No.333 of 2021
Brief facts of the case are that an FIR bearing No.153/2020 was lodged by the
complainant namely, Ameer Muhammad, Deputy Manager SSGC Ltd. under sections 15, 17,
24, 25 of the Gas (Theft Control and Recovery) Act, 2016 with P.S. Shalkot, with the
allegation that on the fateful day upon receiving spy information about illegal connecti on of
gas by the accused for running his Tandoor, he along with the Operation Team inspected the
site and found illegal gas connection therein.
After completion of investigation challan was submitted before the trial Court where
charge was also framed. Du ring trial the accused person filed Criminal Quashment Petition
before this Court, which was allowed vide judgment dated 27.05.2021. Feeling aggrieved
with the order, the appellant preferred Criminal Petition for leave to appeal before the
Hon'ble apex Cou rt, which is pending adjudication. Meanwhile, the trial court acquitted the
accused of the charge merely on the ground of quashment of FIR by this Court vide
impugned order dated 15.06.2021. Hence, the instant appeal.
2. Criminal Acquittal Appeal No.334 of 2021
Brief facts of the case are that an FIR bearing No.152/2020 was lodged by the
complainant namely, Ameer Muhammad, Deputy Manager SSGC Ltd. under sections 15, 17,
24, 25 of the Gas (Theft Control and Recovery) Act, 2016 with P.S. Shalkot with the
allegation that on the fateful day the SSGC Team along with personnel of Police Station
conducted a raid at Bread Shop (Tandoor), situated at Ghous Alkozai Street near Killi
Chiltan Raisani Hazarganji and found the accused committing theft of sui gas by inst alling
illegal connection.
After completion of investigation challan was submitted before the trial Court, where
charge was also framed. During trial the accused Muhammad Rahim nominated in another
FIR bearing No.153/2020, filed Criminal Quashment Petitio n before this Court which was
allowed vide judgment dated 27.05.2021. Meanwhile, the accused person filed application
under section 265 -K, Cr.P.C. which was allowed and he was acquitted of the charge vide
impugned order dated 22.06.2021. Hence, the instant appeal.
Criminal Acquittal Appeal No.335 of 2021
Brief facts of the case are that an FIR bearing No.155/2020 was lodged by the
complainant namely, Malik Muhammad Musa, Deputy Manager SSGC Ltd. under sections
2(s), 15, 17, 24, 25 of the Gas (Theft Control and Recovery) Act, 2016 with P.S. Shalkot
with the allegation that on the fateful day the SSGC Team along with personnel of Police
Station conducted a raid at factory, situated at Hasnain Town Eastern Bypass and found the
accused committing theft o f sui gas by installing illegal connection.
After completion of investigation challan was submitted before the trial Court where
charge was also framed. During trial the accused Muhammad Rahim nominated in another
FIR bearing No.153/2020, filed Criminal Q uashment Petition before this Court which was
allowed vide judgment dated 27.05.2021. Meanwhile, the accused persons filed application
under section 265 -K Cr.P.C. which was allowed and they were acquitted of the charge vide
impugned order dated 22.06.2021. Hence, the instant appeal.
Criminal Acquittal Appeal No.336 of 2021
Brief facts of the case are that an FIR bearing No.123/2020 was lodged by the
complainant namely, Malik Musa, Deputy Manager SSGC Ltd. under sections 15, 17, 24 of
the Gas (Theft Contro l and Recovery) Act, 2016 with P. S. New Sariab with the allegation
that on the fateful day the SSGC Team along with personnel of Police Station conducted a
raid at a house, situated at Sariab Mills Sariab Road Quetta and found the accused
committing theft of suit gas by installing illegal connection for filling CNG in passenger
vans.
After completion of investigation challan was submitted before the trial Court where
charge was also framed. During trial the accused Muhammad Rahim nominated in another
FIR bearing No.153/2020, filed Criminal Quashment Petition before this Court which was
allowed vide judgment dated 27.05.2021. Meanwhile, the accused person filed application
under section 265 -K Cr.P.C. which was allowed and he was acquitted of the charge vide
impugned order dated 22.06.2021. Hence, the instant appeal.
Criminal Acquittal Appeal No.337 of 2021
Brief facts of the case are that an FIR bearing No.173/2020 was lodged by the
complainant namely, Abdul Fateh, Assistant Sub -Inspector of Police Station Shalkot under
sections 15, 17, 24 of the Gas (Theft Control and Recovery) Act, 2016 with P.S. Shalkot with
the allegation that on the fateful day the accused persons along with absconding accused
were busy in digging and bore a hole in gas pipeline in ord er to illegally steal gas from main
pipeline, however, they reached at the spot and apprehended the accused, while other three
companions taking advantage of night made their escape good from the scene.
After completion of investigation, challan was submitted before the trial Court where
charge was also framed. During trial the accused Muhammad Rahim nominated in another
FIR bearing No.153/2020, filed Criminal Quashment Petition before this Court which was
allowed vide judgment dated 27.05.2021. Meanw hile, the accused persons filed application
under section 265 -K, Cr.P.C. which was allowed and they were acquitted of the charge vide
impugned order dated 22.06.2021. Hence, the instant appeal.
Criminal Acquittal Appeal No.338 of 2021
Brief facts of the case are that an FIR bearing No.68/2020 was lodged by the
complainant namely, Khan Muhammad, Senior Engineer SSGC Ltd. under sections 2(s), 15,
17, 24 of the Gas (Theft Control and Recovery) Act, 2016 with P.S. Manzoor Tareen
Shaheed with the allegation th at on the fateful day the SSGC Team along with personnel of
Police Station conducted a raid at hotel with the name and style Sona Shaista Hotel, situated
at Industrial Area Eastern Bypass and found the accused committing theft of sui gas by
installing ille gal connection.
After completion of investigation challan was submitted before the trial Court where
charge was also framed. During trial the accused Muhammad Rahim nominated in another
FIR bearing No.153/2020, filed Criminal Quashment Petition before thi s Court which was
allowed vide judgment dated 27.05.2021. Meanwhile, the accused persons filed application
under section 265 -K, Cr.P.C. which was allowed and they were acquitted of the charge vide
impugned order dated 22.06.2021. Hence, the instant appeal.
3. Learned counsel for the appellants inter alia contended that though under the Gas
(Theft Control and Recovery) Act, 2016 ('the Act, 2016') section 5 of the Act, 2016 defines
the powers of the Gas Utility Courts by providing a remedy of complaint to the Gas Utility
Company, but in these cases inadvertently the FIRs were lodged and the learned trial court
on submission of challan and after taking cognizance, accepted the applications under section
265-K, Cr.P.C. and acquitted the accused/respondents of th e charge. Learned counsel
vehemently urged that it was an inadvertent mistake and, therefore, instead of granting
acquittal to the acquitted respondents, the trial court was having an option either to convert
the FIRs into private complaint or for that mat ter, permission could have been granted to the
appellant/company for filing a complaints; that the learned trial court by throttling the
prosecution, straightaway granted acquittal to the acquitted respondents. He states that
subject to provision of Articl e 13 of the Constitution of Islamic Republic of Pakistan, 1973
after acquiring an acquittal, the appellant/company cannot re -prosecute the acquitted
respondents. He states that theft of gas is accumulating in line losses and public exchequer is
being heavi ly burdened, therefore, the courts of law, instead of becoming prisoners of
procedure should grant an opportunity to the complainant/company against the thieves of
natural gas. He, therefore, urged that after setting aside the acquittal order of acquitted
respondents the appellant/company may be allowed to file private complaint against them as
provided under the law.
4. We have heard learned counsel for the appellant at reasonable length and have also
gone through the record with his able assistance, the p erusal whereof reveals that
Government of Balochistan has promulgated an Act XI of 2016 captioned as 'Gas (Theft
Control and Recovery) Act, 2016' whereas, its section 5 provides powers of the Gas Utility
Court and its section 6 provides procedure for compl aints and suits for default before Gas
Utility Courts, therefore, for the ease of reference it is apt to reproduce these provisions,
which respectively stipulates as under:
"5. Powers of the Gas Utility Court. ---(1) Subject to the provisions of this Act, a Gas
Utility Court shall.
(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court
under the Code of Civil Procedure, 1908 (Act V of 1908); and
(b) in the exercise of its criminal jurisdiction, try offences punishable under this Act
and shall for this pu rpose have the same powers as are vested in a Court of Sessions
under the Code of Criminal Procedure, 1898 (Act V of 1898).
(2) Notwithstanding anything to the contrary contained in this Act, a Gas Utility
Court shall not take cognizance of any offence pu nishable 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. (Emphasis provided).
(3) A Gas Utility Court shall in all matters with respect to which the procedure has
not been provided for in this Act, follow the procedure laid down in the Code of Civil
Procedure, 1908 (Act V of 1908) and the Code of Criminal Procedure, 1898 (Act V of
1898). (Emphasis provided).
(4) All proceedings before a Gas Utility Court shall be deemed to be judicial
proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code,
1860 (Act XLV of 1860), and a Gas Utility Court shall be deemed to be a Court for
the purposes of the Code of Criminal Procedur e, 1898 (Act V of 1898).
(5) Subject to subsection (6), no court or authority shall have or exercise any
jurisdiction with respect to any matter to which the jurisdiction of a Gas Utility Court
extends under this Act.
(6) Nothing in subsection (5) shall be deemed to affect. ---
(a) the right of a Gas Utility Company and a gas consumer to seek any remedy before
any other court, tribunal or forum including official liquidator or receiver that may
otherwise be available to it under the law; or
(b) the power s of the Gas Utility Company, or jurisdiction of any Gas Utility Court as
is referred to in clause (a) to require the transfer to a Gas Utility Court of any
proceedings pending before any such court immediately before the coming into force
of his Act.
(7) All proceedings pending in any other court, including suit for recovery, shall stand
transferred to, or be deemed to be transferred to, and heard and disposed of by the Gas
Utility Court having jurisdiction under this Act. On transfer of proceedings under this
subsection, the parties shall appear before the Gas Utility Court concerned on the date
previously fixed.
(8) In respect of proceedings transferred to a Gas Utility Court under subsection (7),
the Gas Utility Court shall proceed from the stage which the proceedings had reached
immediately prior to the transfer and shall not recall and re -hear any witness and may
act on the evidence already recorded or produced before the court from which the
proceedings were transferred.
(9) The Gas Utility Court ma y, if it so requires, be assisted in technical aspects of the
natural gas sector involved in any case by an amicus curiae who has at least ten years
experience in the relevant field.
(10) Remuneration of the amicus curiae, and the party or parties by whom it will be
payable will be determined by the Gas Utility Court keeping in view the
circumstances of each case.
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 w here 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 complainant 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). (Emphasis provided).
(2) The plaint shall be supported by a gas sales agreement or gas bill or such ot her
documentation that evidences such contract or obligation. Copies of the plaint,
statement of dues and other relevant documents shall be filed with the Gas Utility
Court in sufficient numbers so that there is one set of copies for each defendant and
one extra copy.
(3) The plaint, in the case of a suit for recovery instituted by a Gas Utility Company,
shall specifically state.
(a) the quantity of gas consumed or extracted by the defendant from the Gas Utility
Company;
(b) the amounts, if any, paid by the defendant to the Gas Utility Company and the
dates of payment; and
(c) the total dues relating to the supply, consumption or extraction of gas and all other
dues by the defendant to the Gas Utility Company up to the date of institution of the
suit.
(4) On a plaint being presented to the Gas Utility Court, a summons in Form No.4 in
Appendix 'B' to the Code of Civil Procedure, 1908 (Act V of 1908) or in such other
form as may, from time to time, be prescribed by rules, shall be served on the
defendant t hrough the bailiff or process server of the Gas Utility Court, by registered
post acknowledgement due, by courier and by publication in one English language
and one Urdu language daily newspaper, and service of summons duly effected in any
one of the afore said modes shall be deemed to be valid service for purposes of this
Act. In the case of service of the summons through the bailiff or process server, a
copy of the plaint shall be attached therewith and in all other cases the defendant shall
be entitled to obtain a copy of the plaint from the office of the Gas Utility Court
without making a written application but against due acknowledgement. The Gas
Utility Court shall ensure that the publication of summons takes place in newspapers
with a wide circulation within its territorial limits."
In view of afore quoted provisions of law we are unable to comprehend that why such
a big mistake/blunder was committed by a company, who is having country -wide network
and earning billions of rupees. There is no denial to the fact that a gas theft is causing serious
monetary losses to the public exchequer, which is accumulated and identified as heavy line -
losses and, therefore, the very tariff of the gas company differs according to the
consumption. The regular payers of g as utility bills are facing critical financial fixes and
thus, it is high time to curb the gas thieves with iron hands mainly for a reason that taxpayers
of this poor country shall not be penalized for any reason. But on the other hand it is equally
true t hat reported gas thefts would absolutely not possible without facilitation of officials of
the appellant/company.
5. Be that as it may, but since instead of afore said discussion the point to ponder is that
whether acquittal once granted does not give a va luable rights to the acquitted respondents
and after acquiring acquittal by the court of law, whether he/she does not carry a double
presumption of innocence, whereas, the perusal of the Act, 2016, in its section 5(2) begins
with a non -obstante clause whic h restricts the cognizance of any offence by the Gas Utility
Court except on a complaint filed by a person duly authorized by the Gas Utility Company.
The word 'Notwithstanding' which in legal parlance is known as 'Non obstante clause',
inherently connotes and denotes a meaning which gives an overriding effect, wherever the
same is used, it employs an implied expression of a prohibited degree of an action. Similarly,
when it begins with a phrasal expression by stipulating, 'Not withstanding anything to the
contrary contained in this Act. ' Any law or for the matter in hand, any departure from their
expressed and implied stipulation tantamounts to a clear deviation from a mandatory
provision of law. Thus, in no case is permissible to stay or sustain. There is no cavil to the
proposition that the offences punishable under the Act, 2016 are non -cognizable in nature,
thus the only course provided by section 5 of the Act is to file a complaint before the Gas
Utility Court.
By now, it is more than settled that when a law requires anything to be done in a
particular manner, it should be done in that manner and not otherwise. The Reference in this
behalf can be made to a reported judgment of the Hon'ble apex Court case titled a s
'Muhammad Anwar and others v. Mst. Ilyas Begum and others' (PLD 2013 SC 255). It is
mandate of Constitution of Islamic Republic of Pakistan, 1973, which stipulates it as an
inalienable right of a every citizen to enjoy the protection of law and to be tre ated in
accordance with law. Thus, where the law provides a specific procedure or mechanism
intended to be undertaken against a person by any forum either judicial, quasi judicial or
executive, if, the said action is patently illegal or against the mandate of law on the subject,
specially the express provisions and the implied spirit of a statute, which if allowed to stay
intact, would tantamount to/and would cause serious breach of the legal rights of a citizen,
the High Court under its constitutional juri sdiction can come for his rescue.
6. In these cases, as observed hereinabove, the appellant/company had made departure
from the mandatory provisions of sections 5 and 6 of the Act, 2016, and thus, has committed
a serious illegality, which if allowed to sta y, shall amount to serious breach of legal
fundamental right of the citizen guaranteed by the Constitution. The appellant/company have
not acted in the manner prescribed by law, therefore, a well celebrated maxim comes in to
play, which stipulates that 'ju stice should prevail, no matter if the heaven falls'.
Thus, in the instant case when the law contemplates to file a complaint, the
registration of FIR for offending the provisions of Act, 2016, appears mala fide and coated
with ulterior motive. We are una ble to comprehend that Act, 2016 was promulgated on
24.03.2016 after receiving the assent of President of Islamic Republic of Pakistan on
23.03.2016 and after lapse of more than five years still the appellant/company is unable to
understand the mandate of law.
Thus, for the above reasons, we are left with no other option but to dismiss the
appeals being bereft of any merit
SA/78/Bal. Appeals dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.