' MEHMOOD MAQBOOL BAJWA, J.---Invoking the jurisdiction of this Court, the present petitioner, nominated accused in case F.I.R. No,554 of 2013, registered under section 462-E of The Pakistan Penal Code, 1860, at Police Station Saddar Muridkey, District Sheikhupura, seeks quashment of said Crime Report on multiple grounds.
2. Facts in brief resulting in filing of present writ petition are, that Crime Report bearing No,554 of 2013 was registered against the petitioner on the written application of respondent No,1 with the allegations that the petitioner who is owner of Mills, commonly known as "Al-Aziz Paper Mills", Narang-Mandi, Muridkey Road, on inspection was found stealing the gas while tampering with the meter.
3. Learned counsel for the petitioner while making reference to the allegations levelled in the, F.I.R.
And provisions of section 462-E of The Pakistan Penal Code, 1860, submitted that no case has been made out regarding the theft of sui gas and as such F.I.R. Is liable to be quashed. Submitted that petitioner has instituted suit for declaration before the learned Civil Court questioning his liability to pay detection bill and substantial amount has been deposited by the petitioner as per order of the Court. Submitted that since matter is pending before the learned Civil Court which got' exclusive jurisdiction to adjudicate upon the fact in issue, therefore, proceedings by registration of F.I.R. Which even otherwise are result of malice-in-fact are not sustainable in the eyes of law. Further submitted that application for anticipatory bail made by the petitioner was accepted which is sufficient to prove malice on the part of the complainant.
' Continuing the arguments, learned counsel for the petitioner questioned the liability to pay the detection bill submitting that the bills placed on record are sufficient to suggest that no outstanding liability exists against the petitioner. Further submitted that it was the petitioner himself who approached the local administration of Sui-Northern Gas Pipelines Ltd., making the complaint regarding the defectiveness of the meter and the story was knitted later on in order to put pressure upon the petitioner and to burden him in order to extort huge amount to make up the loss which is being suffered by the company due to negligence of officers/officials also involved in the theft of energy in collusion with the other consumers.
' Continuing the arguments, learned counsel for the petitioner submitted that on 23-1-2014, The Gas (Theft Control and Recovery) Ordinance, 2014, has been promulgated providing special forum for decision of the cases as is evident from sections 4 and 5 of the said Ordinance and as such the ordinary court of criminal jurisdiction has no jurisdiction to decide the fate of the case.
' Referring to the provisions of sections 2(s), 14 and 17, it was submitted that no case has been made out regarding the theft of sui gas energy and the allegations contained in the Crime Report by no stretch of imagination are covered in the definition of "Tampering'.
Placing reliance upon the 'provisions of section 31 of the said Ordinance, it was submitted that the said Ordinance got overriding effect.
4. Summing up the arguments, learned counsel for the petitioner contended that continuation of proceedings before the learned trial Court keeping in view the provisions of law under which case was registered would be an exercise in futility.
5. On the other hand, learned AAG while opposing the petition submitted that challan has been submitted before the learned Judicial Magistrate and as such present writ petition is not maintainable.
6. Learned counsel representing the complainant while admitting the promulgation of Ordinance (No,II of 2014), submitted that through Notification No,74-Job(1)/VI.F.6, dated 6-3-2014 issued by the Lahore High Court, Lahore, special courts have been constituted and the challan submitted against the petitioner before the ordinary court of criminal jurisdiction will be transferred to the said special court.
' Controverting the assertion of the petitioner, it was submitted that the grounds of attack cannot be thrashed out by this Court while exercising Constitutional jurisdiction.
7. The petitioner while seeking quashment of F.I.R. Has pleaded the facts relating to factual controversy which cannot be decided by this Court while exercising constitutional jurisdiction as held in "Col. SHAH SADIQ v. MUHAMMAD ASHIQ and others" (2006 SCM R 276) and RAFIQUE BIBI v.
MUHAMMAD SHARIF and others" (2006 SCM R 512).
8. In view of the matter, the arguments canvassed on factual premises though at length, are not required to be dealt with.
9. It is an admitted fact that challan has been submitted before the learned Judicial Magistrate and as such appropriate remedy is available to the petitioner before the learned trial Court either under section 249-A or section 265-K of the Code of Criminal Procedure, 1898, as held in "Col. SHAH SADIQ v. MUHAMMAD ASHIQ and others" (2006 SCM R 276).
10. Matter again came up for examination before the apex Court in "MUHAMMAD ABBASI v. S.H.O.
BHARA KAHU and 7 others" (PLD 2010 SC 969) and it was held at page 976 as follow:-- "We have examined the petition on the touchstone of the criterion as mentioned hereinafter. It is worth mentioning that challan has already been submitted and cognizance taken by the learned court and in this view of the matter the alternate as provided under section 249-A, Cr.P.C. Would be more efficacious, appropriate and beneficial. It may not be out of place to mention here that question of guilt or innocence cannot be decided by the learned High Court in exercise of Constitutional jurisdiction as such a function falls within the jurisdictional domain of Court concerned by whom the entire evidence is to be scrutinized which cannot be done in exercise of Constitutional jurisdiction". (underlining is mine).
11. Promulgation of the Gas (Theft Control and Recovery) Ordinance, 2014 (II of 2014) would not be sufficient to grant the relief sought for in view of section 5(7) of the Ordinance, according to which all the proceedings pending in any other court shall be transferred to the Gas Utility Court.
12. Pursuant to above discussion, the writ petition is not maintainable on legal as well as factual premises and as such the same is hereby dismissed.