O R D E R SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 1423 of 2016
Applicant: Zahir Shah s/o. Amir Jamal
Through Mr. Saba Khan, Advocate.
Respondent: The State, through Mr. Malik Sadaqat Khan, Special
Prosecutor SSGC.
Date of hearing: 23.02.2017
Date of order: 23.02.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicant/accused Zahir Shah s/o. Amir Jamal has sought pre-arrest arrest bail in Crime No. 86 of 2016, registered at P.S. SSGC, Karachi under Section 15 of the Gas (Theft Control and Recovery) Act, 2016 (herein after referred to as “the Act”). His earlier application for grant of pre-arrest bail bearing No. 1094 of 2016 was dismissed by the learned 7th Additional Sessions Judge, Karachi-West, vide order dated 10.09.2016. He was granted ad-interim pre-arrest bail by this Court, vide order dated 01.10.2016, now he seeks confirmation of his bail.
2. Briefly stated, the facts of the case are that on 22.06.2016 at 0440 hours complainant Abdul Sattar Shaikh s/o. Junaid Khan lodged aforesaid F.I.R. alleging therein that he was posted as Assistant Manager in SSGC, on 22-06-2016 at about 0310 hours he alongwith other officials of Sui-Gas and police party of P.S. SSGC reached New Buner Hotel, constructed over Plot No.17/16, Akbari Muhallah, Pathan Colony No.2, Karachi, owned by the applicant/accused, who was not present at the spot. On checking, it was found that a direct line was connected from gas service line, which was disconnected by the complainant by taking into possession 10/11 feet lengthy 3 pieces of pipe, one 6 star stove, one 4 star stove and one 5 feet lengthy iron rod, while 40 nozzle stove, 09 star stove, tandoor and angle of iron being fixed with wall and earth could not be taken into possession.
3. The learned counsel for the applicant/accused has mainly contended that the accused is innocent and has falsely been implicated in this case by the complainant party due to malice and ulterior motive; that the accused is running his tea stall in his house and paying the gas bill regularly and also paid an amount of Rs.200,000/- for a new gas connection to the SSGC, but the SSGC officials demanded illegal gratification to provide him new gas connection; that the alleged offence is punishable with fine up to three million rupees, hence the accused is entitled to bail as of right, even otherwise the alleged offence being punishable for five years, as a lesser punishment, does not fall within the prohibitory clause of section 497 Cr. P.C.; therefore, accused is entitled for the confirmation of the bail. In support of his contentions, the learned counsel has placed his reliance on the case of Khan Muhammad vs. The State (2014 P.Cr.L.J. 48) and Syed Shaukat Ali Gilani and another vs. The State and another (2011 MLD 1268).
4. On the other hand, learned Special Prosecutor SSGC has vehemently opposed this application on the ground that the accused is involved in the offence of theft of gas, causing huge loss to government exchequer and after the investigation he has been challaned under Section 15 and 17 of the Act. He has contended that the accused deposited an amount of Rs. 2,00,000/= in favour of SSGC after the lodging of F.I.R. allegedly for a gas connection, which is itself an evidence that earlier he was using gas in his hotel by illegal means; therefore, he is not entitled to extra ordinary relief of pre-arrest bail as the accused has failed to prove any malice or ulterior motive on the part of complainant or police to implicate him falsely in this case, even otherwise prosecution has sufficient evidence against the accused to connect him with the commission of alleged offence. In support of his contentions, the learned Special Prosecutor has placed his reliance on the cases of Rana Muhammad Arshad vs. Muhammad Rafique and another (PLD 2009 SC 427).
5. I have considered the arguments advanced by the learned counsel for the accused and learned Special Prosecutor SSGC as well as perused the material available on record.
6. It would be relevant to mention here that the Gas (Theft Control and Recovery) Act, 2016 has been enacted for the prosecution of cases of gas theft and other offences relating to gas and to provide a procedure for recovery of amounts due. Section 2 (r) of the Act defines “tampering” or “tamper” as under:-
“tempering” or “tamper” includes interfering or creating hindrance in flow or metering of gas power by unauthorized entry or access into metering system or transmission and distribution lines either by breaking the seals or damaging or destructing the same or in any manner interfering with the gas meter or transmission line or distribution line or interfering with its original condition.”
Accused has been challaned under Sections 15 & 17 of the Act, for the sake of convenience, the same are reproduced, 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.
(Emphasis is supplied)
7. It appears on that 22.06.2016 Abdul Sattar Shaikh, Assistant Manager, alongwith other staff members or SSGC detected direct gas supply from the main service line through rubber pipe to a hotel, owned by the accused. The ownership of the hotel has not been denied by the accused in his bail application, on the contrary he has filed photographs of the said hotel alongwith his bail application showing installation of a gas meter bearing No. 2644558. The technical staff of the SSGC disconnected the illegal supply of the gas from main service line and taken into possession 10/11 feet lengthy 3 pieces of pipe, one 6 star stove, one 4 star stove and one 5 feet lengthy iron rod, while 40 nozzle stove, 09 star stove, tandoor and angle of iron being fixed with wall and earth could not be taken into possession.
8. There is no cavil to the proposition that when an offence besides being punishable for imprisonment is also punishable alternatively with fine, then the accused shall be entitled to bail as of right because if at the trial he is sentenced with fine only, then his period as under trial prisoner, due to refusal of bail, shall amount to a case of double jeopardy and, similarly, while dealing with such like cases, the refusal of bail would also be in contravention of Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973, which embodies the provisions of the maxim nemo debt bis vexari pro eadem causa (No person should be twice disturbed for the same cause) as well as section 403 of the Cr.P.C. But the principle of bail as of right in the cases providing alternative punishment of fine does not attract to the case of present accused, for the reason that the punishment of fine for the offence under section 15 of the Act is not alternative sentence but with rigorous imprisonment, which may extend to ten years but shall not be less than five years.
9. As regard to the argument of learned counsel for the accused that the lesser punishment provided for the alleged offence does not fall within the prohibitory clause of section 497 Cr. P.C., suffice it to say that grant of bail in such cases is not a right of an accused but a concession. Considering the fact that the alleged illegal act of the accused under the prevailing energy crisis may be deemed an offence against the society as a whole, as due to scarcity of gas supply on account of pilferage not only the consumers suffer but also it causes loss to public exchequer, besides, increasing the costs for customers, and also bearing in mind that the interference with gas meters and gas pipelines is also a serious risk to the safety of life and properties of the innocent people, I do not consider the accused entitled to concession of bail so far merit of the case is concerned.
10. From the tentative assessment of the evidence on record, it appears that the prosecution prima facie has sufficient evidence against the accused to connect him with commission of alleged offence. The counsel for accused has not been able to point out any special feature of the case entitling accused to grant of extra-ordinary concession of pre-arrest bail. Pre-requisites for such concession i.e. malice and ulterior motive, either on the part of complainant or the police are conspicuously missing in the case. The case-law cited by the counsel of accused being on different footings is not applicable in the case of accused. Accordingly, this application is dismissed. The interim bail granted to accused, vide order dated 01.10.2016, stands recalled.
11. Needless to mention here that the observations made herein-above are tentative in nature and would not influence the trial Court while deciding the case of accused on merits.
JUDGE
Athar Zai