SH. ZIARAT SHAFI Versus WATER AND POWER DEVELOPMENT AUTHORITY

ORDER

This is an application under section 561‑A, Cr.P.C. seeking quashment of the proceedings of criminal case registered against Ziarat Shafi and another for the commission of offence under section 39‑A of the Electricity Act, 1910.

2. Facts of the case are, that on 23rd May, 1974 the S.D.O. accompanied by Malik Abid Hussain the Electrical Supervisor and other officials of the WAPDA checked the electric meters installed in the Montgomery Floor Mills, Ltd. at Sahiwal. The said team noticed, that the seals fixed by the WAPDA had been tampered with and some fake seals have been affixed. On 29th June, 1974, the S.D.O. and other officials again checked the meters installed in the premises of the mills and fake seals were' noted on anti‑theft box. When the meters were checked, side seals of the meters were also found to be fake and bogus. On account of these detections, a technical report was drawn, and the complaint against the petitioner was sent to the Special Magistrate (WAPDA).

3. In support of this application seeking quashment of the aforesaid proceedings, Mr. Muhammad Akram Sheikh, the learned counsel for the petitioner raised the following contentions:‑

(a) That Ziarat Shafi petitioner being the Chief Managing Director and the Chief Executive of the Montgomery Floor Mills cannot be tried for the theft of electricity.

(b) That the complainant, WAPDA had sent a notice to the petitioner to pay the amount for the stolen electricity consumed. The said demand by the WAPDA was paid, but a civil suit was instituted challenging validity of the demand. The civil suit was decreed in favour of the mills, and in pursuance thereof, the amount paid by the mill was refunded to it. The WAPDA had to refund the money which was paid for the stolen electricity.

On account of this refund and the decree, it is urged that no criminal liability exists against the petitioner, therefore, pendency of the proceedings is nothing but sheer abuse of the process of law.

(c) That the petitioner Ziarat Shafi was not working as the Chief Executive because of the dispute between the directors of the mill, therefore, petitioner was not responsible.

4. I have heard the learned counsel for the petitioner, as well as the learned A . A .‑G. As far as liability of the petitioner is concerned, attention of this Court was drawn to various rules framed under Electricity Act,1910 known as Electricity Rules 1937. Rule 120 reads:‑

Responsibility of Agents and Managers‑‑

"Where any person is responsible for the observance of any of these rules, every agent and Manager of such person shall also be responsible for such observance in respect of matters under their respective control."

Besides this rule, the attention of this Court was also drawn to rule calling upon a consumer to observe all the mandatory requirements under the rule. Rules 31 and 48 are reproduced hereunder:‑

SEALING OF METERS

Rule 31

(1) A licensee may affix one or more seals to any meter, maximum indicator, or other apparatus placed upon a consumer's premises in accordance with rule 40, and no person other than licensee shall break any such seal.

(2) The consumer shall use all reasonable means in his power to ensure that no such seal is broken otherwise than by the licensee.

Rule 48.

Precautions to be adopted by consumers and owners electrical contractor and electrical workman. ‑‑ (1) No electrical installations work, including additions, alterations, repairs, and adjustments to existing installations, except such replacement of lamps, fans, fuses, switches and other component parts of the installation as in no way alter its capacity or character, shall be carried out upon the premises or on behalf ? of any consumer or owner for the purpose of supply of energy to such consumer or owner except by an electrical contractor licensed by the Provincial Government in this behalf and under the direct supervision of a person holding a certificate of competency issued by the Provincial Government:

Provided that, the Provincial Government may by Notification in the official Gazette exempt on such conditions as it may impose any such description of work either generally or in the case of any specified class of consumers or owners from so much of this sub‑rule as requires such work to be carried out by an electrical contractor licensed by the Provincial Government in this behalf.

(1‑A) No electrical installation work which has been carried out in contravention of sub‑rule (1) shall be connected with the work of any licensee or other supplier of energy.

(2) Sub‑rule (1) shall come into force in any province or part thereof on such date as the Provincial Government may by Notification in the local official Gazette appoint and sub‑rule (1‑A) shall come into force in any Province or part thereof on the 10th October, 1943 or one year after sub‑rule (1) has come into force therein whichever is later.

(3) This rule shall not, unless the Central Government otherwise directs, apply to any work carried out by, or on behalf, of the Central Government."

5. On the basis of the above‑quoted rules, it was argued by Mr. Tasaddaq Jillani, the learned A . A .‑G . as well as by Mr. Islam Ali Qureshi, Advocate for WAPDA, that it was the duty of the Chief Executive of the Montgomery Floor Mills, i.e. Ziarat Shafi to observe all the rules, therefore, it cannot be said, that the petitioner is not liable. On the other hand, it was argued by Mr. Muhammad Akram Sheikh, Advocate that the complaint sent to the Court does not indicate the name of the petitioner, but only name of one Ashraf an Electrician of the mills finds mention. Since the petitioner's name was not mentioned in the complaint, therefore, he is not liable for the offence. This contention is also of no help to the petitioner, as much as, the rules already determine the liability, therefore, the petitioner was rightly arrayed as an accused person in the light of rules 31 and. 39 of the said rules. As far as the second contention raised by the learned counsel for the petitioner is concerned, the learned counsel has taken pains to take me through the judgment of the civil Court, wherein only issue No. 5 was framed which reads as below:‑

ISSUE NO.5.

"Whether the demand in dispute contained in the bill, dated 13‑7‑1974 is illegal, void and ineffective for the reasons given in the plaint?

The civil Court found this issue against WAPDA, therefore, in pursuance of the aforementioned findings, the money deposited by the petitioner was refunded to him. The refund of the said amount has no bearing upon the criminal liability of the petitioner, because the question of theft of electricity was not doubtful, nor it was subject‑matter of the suit.

6. As far as capacity of Ziarat Shafi for being the Chief Executive of the mills at the relevant time is concerned, it was conceded by the learned counsel for the petitioner, that on papers he was the Chief Executive, but practically he was not performing the aforesaid duties, because disputes were going on between the directors. I am afraid, that this aspect also does not help the petitioner in any manner to absolve him of the responsibility. Consequently, this petition fails, and is hereby dismissed. However, it is clarified, that the findings arrived at by this Court are tentative in nature, and would not deter the trial Court to take another view in the light of the evidence adduced before it. The petitioner may, if so advised, invoke the jurisdiction of the trial Court under section 249‑A, Cr.P.C. after some evidence is recorded.

S.A./Z‑63/ L ??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.