THE KARACHI ELECTRIC SUPPLY CORPORATION vs NASEER AHMAD

1. By this Revision Application, the Karachi Electric Supply Corporation (hereinafter referred to the K.E.S.C.) have sought the reversal of the order of Special Magistrate K.E.S.C., Karachi, dated 5th September 1984, whereby the respondent Naseer Ahmed was acquitted under section 249-A, Cr.P.C.

2. The said respondent was challaned by P.S. K.E.S.C. To take his trial under section. 39, Electricity Act, 1910. The case against him was started on the F.I.R. Lodged by Haji lqbal Hussain, Foreman of K.E.S.C.

3. On 7-2-1984. It was alleged that on account of the respondent's failure to pay electricity charges, supply of electricity to him was disconnected. Thereupon he used artificial means of abstraction of electric energy and committed theft of electricity depriving thereby the K.E.S.C. Of the electricity charges. After due investigation by the police the case was sent up in Court.

4. After framing of the charge, the accused /respondent moved application under section 249-A, Cr.P.C. Praying therein for his acquittal. In support of the application he produced photo copy of the supplementary electricity bill which was issued to him by the K.E.S.C. The bill required the accused to pay the arrears of electricity charges for three years and amount of penalty. The learned trial Court after hearing the arguments of the parties' counsel, ordered acquittal of the accused under section 249-A, Cr.P.C.

5. It appears from the impugned order that the argument put forward on the accused's behalf before the trial Court was that the supplementary bill issued by the K.E.S.C. During pendency of the criminal case against the accused indicated that the K.E.S.C. Was not sure about the charge of theft of electricity made against him and the dispute involved in the case was of purely civil nature and the criminal forum was chosen only to pressurize the accused into compromise with K.E.S.C.

6. And that the accused could not be put to double jeopardy inasmuch as that on one hand he was required to pay the arrears of electricity charges arbitrarily calculated together with penalty and on the other hand he faced prosecution in the criminal case. After taking note of these arguments the learned trial Court passed an order of three lines simply stating that agreeing with the authorities of High Court, the accused was acquitted.

7. First of all the learned Magistrate has hardly given any reason, to support the order of acquittal. The authorities relied upon by him have not been discussed. He has also overlooked the fact of framing charge against the accused. Obviously framing of charge raised a presumption that the police papers laid before him disclosed prima facie case against the accused. This being so, the accused could not be acquitted unless the Court had proceeded with the case and the material was brought justifying the passing of acquittal order. Admittedly the case made no progress whatsoever subsequent to framing of the charge. However, a photo copy of the supplementary bill issued by K.E.S.C. To the accused was produced before the learned Magistrate alongwith the application under section 249-A, Cr.P.C. It seems he based the acquittal of the accused on the said document.

8. It would appear that the supplementary bill of electricity charges was not a part of police papers laid before the trial Court as basis for framing charge against the accused. The said document was not produced even in course of recording of evidence as no evidence was recorded before acquittal of the accused. The learned Magistrate was, therefore, not competent to receive much less consider the document which was not produced in accordance with law for the purpose of acquitting the accused by interlocutory order. It seems no opportunity was afforded to the prosecution to furnish explanation with regard to the supplementary bill.

9. For above reasons the order passed by the trial Court acquitting the accused under section 249-A, Cr.P.C. Was not in consonance with the legal requirements and as such the Revision Application was allowed and the impugned order, dated 5-9-1984 was set aside by the short order, dated 5-3- 1986. By the same order the case was remanded back to the trial Court with direction to proceed with the case afresh in accordance with law. Above are reasons in support of the short order hereinabove.