2021 P Cr. L J 412
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD IBRAHIM ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 29 of 2019, decided on 15th July, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 462- K & 462-O---Interference, improper use or tampering with electric meter by
industrial or commercial consumer ---Cognizance ---Scope ---Sub -Division Officer (SDO)
lodged FIR with the FIA containing allegations of theft of electricity by the accused from
near boshe s of transformer for running his tube -well and service station ---Offences relating
to Chapt. XVII -B of P.P.C. were covered by the provisions of S. 462- O, P.P.C. which ousted
the applicability of the Code of Criminal Procedure, 1898 or any other law for the time being
in force relating the assumption of jurisdiction by the Court ---Court could not take
cognizance of any offence under Chapter XVII -B, P.P.C., except on a complaint made with
reasons to be recorded in writing along with full particulars of the of fence committed under
the chapter, by duly authorized officer (not below Grade 17) of the Government or the distribution company--- Proceedings were carried out in violation of the provisions of S. 462-
O, P.P.C.---Appeal against conviction was accepted, in circumstances.
Muhammad Mohsin Ghaman and others v. Government of Punjab through Home
Secretary Lahore and others 2013 SCMR 85 rel.
(b) Administration of justice ---
----When the law requires a thing to be done in a particular manner it must be done in t he
same manner as provided under the law, as deviation from the prescribed procedure amounts to violation of law.
(c) Administration of justice ---
----Mandatory pre -requisites of law, if not followed, then the entire proceedings would be
nullified in the eyes of law.
Rehmatullah Barech for Appellant.
Nadeem Akhtar Afghan, Assistant Attorney General for the State.
Date of hearing: 8th July, 2020.
JUDGMENT
ABDULLAH BALOCH, J .---This judgment disposes of Criminal Appeal No.29 of
2019 filed by the appellant Muhammad Ibrahim son of Musa Kaleem, against the judgment
dated 25th June, 2019 (hereinafter referred as "the impugned judgment") passed by learned Sessions Judge, Quetta (hereinafter referred as, "the trial Court"), whereby the appellant has been convicted under section 462 -K, P.P.C. and sentenced for a period he has already
undergone with fine of Rs.20,000/ - (Rupees Twenty Thousand Only) in defau lt thereof to
further suffer S.I. for One (01) month.
2. Brief facts of the case are that on 22nd May, 2017 the complainant Amanullah, SHO
QESCO lodged FIR No.23 of 2017 with Police Station FIA Quetta, alleging therein that on the aforesaid date the FIA raiding team along with QESCO officials pursuant to source of information conducted raid at the Ice Factory of appellant situated at Zehri Town Qambarani Road, Quetta and found the appellant committing theft of electricity power/energy through direct connect ion from nearby boshes of transformer three phase No.LT -TO-U-2471 model
PEL, 200 KV running his tube -well and service station with theft of electricity power/energy
and replacing 50 KV transformer into 100 KV transformer.
3. To substantiate its case, the p rosecution produced as many as three PWs while the
accused/appellant recorded his statement under section 342, Cr.P.C. and also recorded his statement on oath under section 340(2), Cr.P.C. and produced one Witness in his defense.
After hearing the argument s, the learned trial Court convicted the appellant as mentioned
hereinabove in para No.1. Whereafter, the instant appeal has been filed.
4. Learned counsel for the appellant, at the very outset, contended that the controversy
regarding the preference of Sc hedule over the Statute has already been settled that no Court
shall take cognizance in case of electricity theft until or unless a complaint is filed before the Court of competent jurisdiction as provided under section 462- O, P.P.C., but while deciding
the instant matter, the said procedure was not followed by the learned trial Court, which
render all the proceedings illegal and unlawful. He further contended that even otherwise, the prosecution has failed to prove its case through confidence inspiring evi dence.
5. On the other hand, learned Assistant Attorney General appearing on behalf of State
contended that the judgment passed by the learned trial Court is well reasoning and the learned trial Court is vested with the jurisdiction and the same was exerci sed accordingly and
no illegality and irregularity has been committed by the learned trial Court and the prosecution has successfully proved its case through confidence inspiring evidence. Hence judgment does not warrant interference by this Court.
6. Hear d learned counsel for the parties and perused the record, which reveals that an
FIR was directly lodged with the FIA Quetta by the complainant Amanullah, SDO QESCO
with the allegations of theft of electricity power/energy in a concealment manner by the
appellant from the near boshes of transformer for running of his tube -well and service
station. After registration of FIR, a raiding team of FIA along with officials of QESCO conducted raid and found the appellant committing theft of electricity power/energy directly from the electricity lines and in this regard the prosecution has produced as many as three
PWs, but the question arises that whether the trial Court can take cognizance of a case where
FIR was directly lodged with FIA instead of filing a complain t before the Court of competent
jurisdiction as provided under section 462- O, P.P.C., which is dealing with the matters
covered by the ibid chapter and the same has specifically been excluded the provisions of
Cr.P.C. 1898 as well as any other law for the time being in force in the matters covered by
Chapter XVII -B.
7. To resolve this question, whether the provisions of section 462- O, P.P.C. are
applicable to the cases covered by Chapter XVII -B of the Pakistan Penal Code 1860, or the
schedule appended to the Code of Criminal Procedure 1898, is to be followed in respect of the ibid offences. For ease of reference provisions of section 462- O, P.P.C. are reproduced as
below:
"462 -O. Cognizance. (1) The Court shall try an offence punishable under this
Chapter.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or any other law for the time being in force, the Court shall not take cognizance of any offence under this Chapter except on a complaint made, with reasons to be recorded in writing along with full particulars of the offence committed under this Chapter, by
duly authorized officer (not below Grade 17) of the Government or the distribution
company, as the case may be."
8. Plain reading of ibid provision of section 462 -O, P.P.C. made clear that the very
intention of Legislature by using the phrase "Notwithstanding" in the heading of ibid Section is to exclude all other provisions available in the Code of Criminal Procedure, 1898 as well as provisions available in any other law for the time being in force in the matter covered by
Chapter XVII -B of Pakistan Penal Code, 1860, the application of non obstante clause was
elucidated by the Hon'ble Supreme Court of Pakistan in case titled "Muhammad Mohsin Ghaman and others v. Government of Punjab through Home Secretary Lahore and others"
2013 SCMR 85 wherein it was held that: -
"One of the foundational principles governing the interpretation of non obstante clause is that it has to be read in the context of what the legislature intended in the enacting part of the provision. In 'Interpretation of Statutes' by NS Bindra, the author with reference to specific precedent case law precisely addresses this issue and comments as follows: --
"It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first he ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with
the new enactment. The enacting part of a statute must, where it is clear, be ta ken to
control the non obstante clause where both cannot be read harmoniously, for even
apart from such clause a later law abrogates earlier laws clearly inconsistent with it.
The proper way to construe a non obstante clause is first to ascertain the mean ing of
the enacting part on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that
meaning in the provisions mentioned in the non obstante clause. A non obs tante
clause is usually used in a provision to indicate that that provision should prevail
despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnancy between the two provisions in all such cases . The
principle underlying non obstante clause may be invoked only in the case of irreconcilable conflict."
9. Thus, in view of the above, the offences relating to Chapter XVII -B of the P.P.C.
shall be covered by the provisions of section 462- O, which oust s the applicability of the
Code of Criminal Procedure, 1898 or any other law for the time being in force relating the assumption of jurisdiction of the Court in the matter. Thus, the Court shall not take cognizance of any offence under this Chapter, except on a complaint made, with reasons to
be recorded in writing along with full particulars of the offence committed under this Chapter, by duly authorized officer (not below Grade 17) of the Government or the distribution company, as the case may be. It means that the Court shall not take cognizance of any of the offences relating to Chapter -XVII -B of the P.P.C., but except upon a complaint
provided by the provisions of section 462- O, P.P.C.
10. Thus the matter in hand, all the proceedings carried out in viol ation of provisions of
section 462- O, P.P.C. and it is settled principle of law that when law requires a thing to be
done in a particular manner it must be done in the same manner as provided under the law, as deviation from the prescribed procedure amount s to violation of law.
11. A comparative study of section 462- O, P.P.C. has made it clear that FIA authorities
illegally and unlawfully and without any mandate of law raided the Ice factory thereby travelled beyond their authority as the required procedure was not followed rather violated, it
is well settled principle of law that the mandatory requisites of law, which are pre -requisites,
if not followed, then the entire proceedings would be nullified in the eyes of law; thus, the case of prosecution from ve ry inception is defective, not maintainable and the - impugned
judgment of conviction passed by the trial Court deserves to be set aside, the learned trial Court while delivering the impugned judgment has not considered the above legal aspects of the case, thus, conviction and sentence so awarded cannot be maintained.
For the above reasons, the appeal is accepted. The impugned judgment dated 25th
June, 2019 passed by trial Court is set aside. The appellant is acquitted of the charge.
SA/163/Bal. Appeal accepted.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,
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