' SAJJAD ALI SHAH, J.---The petitioners, who are employees of K-Electric [formerly Karachi Electric Supply Company Limited (KESC)] and are posted as Manager, Senior MIO, Assistant Manager and a former Manager, have filed the instant petition with the following prayers:-
(1) Set aside the impugned order dated 20-1-2014 passed by the respondent No.4/Judge Anti- Terrorism Court-II;
(2) Quash the proceedings, emanating from FIR No.150/2013 lodged at Police Station Gabol Town, Karachi pending in the Anti-Terrorism Court-II Karachi under sections 384, 385, 395 of the Pakistan Penal Code;
(3) Restrain the respondent No.4 from taking any further action in proceedings, emanating from FIR No.150/2013 lodged at Police Station Gabol Town, Karachi;
(4) Any other relief the Honourable Court deems fit and proper in the interest of justice;
(5) Cost of the Petition."
2. Briefly, the respondent No.2 (complainant of Crime No.150/2013 the quashment whereof is hereby sought) a customer/consumer of K-Electric was allegedly involved in the theft of electricity and consequently a raid was conducted by the Inspection Team of K-Electric under the supervision of Assistant Electric Inspector on his factory on 22-8-2013 at 1:30 a.m. The respondent No.2 was found stealing electricity and the Inspection Team of which petitioner No.2 was also a member reported as follows:- "At the time of night inspection one single phase and one three phase meters exist outside the premises. Incoming four core cable bypassed before metal near wall. All the three phase (red, yellow and blue) bypass. Direct use. Action to be taken as per KESC Policy.
STF Team disconnect the line. Consumer not allow. Physical load survey and not received the inspection notice. Refuse to sign on S.I.R.
' This led to the registration of Crime No.47/2013 against the respondent No.2 under section 39 of the Electricity Act at Police Station KESC, Karachi and issuance of electricity bill for a sum of Rs.48,52,503.
3. It appears that thereafter the respondent No.2 on 11-9-2013 approached ex-officio Justice of Peace at Karachi Central through an application under Section 22-A(6)(iii), Cr.P.C. For registration of a case against the petitioners/officers of K-Electric on the ground that the petitioners are taking bribe/bhatta from the respondent No.2 since 2009 and just before the incident huge amount was demanded as bribe/bhatta and on refusal to pay raid was conducted, electricity disconnected, FIR lodged and a huge amount of bill was issued. The application was decided by the learned Vth Additional Sessions Judge, Karachi Central, vide its order dated 17-9-2013 resulting in registration of Crime No.150/2013 under sections 395, 384, 385, P.P.C. At Police Station Gabol Town, Karachi, the quashment whereof is being sought through instant petition. It further appears that during preliminary investigation, the Investigating Officer being impressed with the words "bribe/bhatta" used in the FIR, on 18711-2013 inserted section 7 of the Anti-Terrorism Act, 1997 and sought time from the Anti-Terrorism Court for further investigation. Thereafter, the investigation was handed over to another Investigating Officer, who after completing the investigation submitted final report under section 168, Cr.P.C. Before the Anti-Terrorism Court No.II, Karachi, seeking disposal of the crime in "B"
Class. However, the learned Judge through impugned Order dated 20-1-2014 while rejecting the recommendation decided to proceed with the matter, leading to filing of instant petition.
4. Mr. Abid Zuberi, learned counsel for the petitioners, contended that in fact the respondent No.2, who is the owner of a plastic bag manufacturing factory and a customer/consumer of K-Electric, was involved in the theft of electricity and consequently, on 22-8-2013 at 1:30 a.m. a raid was conducted at his factory and he was caught red handed stealing electricity leading to registration of Crime No.47/2013 on 22-8-2013 under the Electricity Act and issuance of electric bill on 26-8-2013 in the sum of Rs.48,52,503 which demonstrate that Crime No.150/2013 against the employees of K- Electric was a counterblast to such raid and registration of the crime against the respondent No.2, therefore, the said FIR is liable to be quashed. It was next contended that the respondent No.2 is a habitual offender and even was previously involved in the theft of electricity and upon being caught red handed Crime No.44/2009 under section 39, E.C.A. Was registered against him, he has also filed cases against K-Electric and there was a history of litigation which would reflect that the FIR is totally mala fide. It was next contended that the allegations levelled by respondent No.2 in the FIR that the petitioners were demanding bribe/bhatta from him since 2009 are false and against the record and were never made previously, as the respondent No.2 has a history of litigation with the K-Electric and further that the petitioners were posted in the area where the factory of the respondent No.2/complainant is situated after mid-2012 and some of them in 2013, therefore, the question of demanding bribe by them does not arise. It was further contended that the petitioners who are accused in Crime No.150/2013 are Senior Officers of K-Electric and have been falsely implicated to forestall recovery of heavy, dues of K-Electric by levelling false accusation allegations to counter Crime No.47/2013 and, therefore, the Crime No.150/2013 is liable to be quashed. It was lastly contended that the learned Judge Anti-Terrorism Court did not go through the final report under section 168, Cr.P.C. Or material collected by the Investigating Officer on the basis whereof he recommended disposal of the instant crime in 'B' class and merely by observing that the complainant has stated that the accused persons had come to his office and demanded bhatta and that he could identify all of them, has rejected the reported and decided to proceed by taking cognizance which order appears to be without application of judicial mind and, therefore, liable to be quashed and so does the MR. Counsel in support of his contention and to seek quashment of the proceedings emanating from Crime No.150/2013 has placed reliance on the judgments of the Apex Court in the cases of The State v. Asif All Zardari and another (1994 SCM R 798), Dr. Ghulam Mustafa v. The State (2008 SCM R 76), Maqbool Rehman v. The State and others (2002 SCM R 1076), Fatal Dad v. Col. (Retd) Ghulam Muhammad Malik and others (PLD 2007 Supreme Court 571), Bashir Ahmed v. Muhammad Siddique and others (PLD 2009 Supreme Court 11) and Watan Party and another v. Federation of Pakistan and others (PLD 2011 Supreme Court 997).
5. On the other hand, learned Assistant Prosecutor General duly assisted by the learned counsel for the respondent No.2/complainant has vehemently argued that the allegations of theft against the respondent No.2 are totally false and that the petitioners have been demanding bhatta from the respondent No.2/complainant since 2009 and since on this occasion the demand was too high and the respondent No.2 refused to meet such demand which led to the incident reported in Crime No.150/2013. It was further asserted that the alternate efficacious remedy is available to the petitioner in case premature acquittal is desired, therefore, the instant petition is incompetent against a just and well-reasoned order passed by the learned Judge, Anti-Terrorism Court-II, Karachi, on 20-1-2014. The counsel while explaining the delay has contended that an application dated 1-9-2013 duly received in the concerned police station on 5-9-2013 was moved by the respondent No.2, but no action was taken leading to filing of application under section 22-A resulting in the instant FIR. It was further contended that in the earlier FIR lodged by K-Electric against respondent No.2, he was acquitted. It was contended that earlier the excesses of K-Electric were reported by the respondent No.2 by filing a Constitution Petition No.D-1030 of 2012 before this Court, which petition is pending till date. Lastly the counsel while placing reliance on the judgment of the apex Court in the case Director-General Anti-Corruption Establishment, Lahore and others v.
Muhammad Akram Khan and others (PLD 2013 Supreme Court 401) has contended that since the final report has been submitted upon which the Court has taken cognizance, therefore, the proceedings emanating from Crime No.150/2013 could not be quashed and, therefore, prayed for dismissed of the instant petition.
6. We have heard the learned counsel for the respective parties, perused the record and the case- law cited at bar.
7. The admitted position as emerges from the record is that on 2-10-2009, first raid was conducted by the Inspection Team of K.E.S.C. At the factory of the respondent No.2 and upon being found dishonestly consuming electricity Crime No. 44 of 2009 under section 39, E.C. Act was registered at Police Station K.E.S.C. The respondent No.2 has placed on record copy of order dated 28-4-2010 passed by a learned Magistrate in Criminal Case No. 3445 of 2009 (Crime No.44 of 2009) on his application under section 249-A, Cr.P.C. Whereby he was acquitted on the ground that the FIR was not lodged after taking permission from the concerned Government or the Electric Inspector. It further appears from the record that the respondent No.2, in his Const. Petition No. D-1030 of 2012 filed against K.E.S.C. On 7-3-2012, in para-5 onward has stated that upon registration of FIR No. 44 of 2009 both meters installed at his factory were removed and despite his letters dated 22-10-2009, 26-10-2009, 18-5-2010, 19-5-2010, 15-6-2010 and 24-6-2010 the electricity was not restored. It is further asserted that the respondent No.2 thereafter made a representation to the Electric Inspector at Karachi on 9-8-2010 which representation after regular hearing was decided by directing K.E.S.C. Vide Order dated 12-4-2011 to restore the electricity at his factory and according to the respondent No.2 the electricity was restored at his factory after payment of the reduced amount in consequent to the Bill dated 12-4-2011. It further appears from para-10 of the said petition that in August 2011 a bill of Rs.1,244,500 was issued out of which Rs.93,200 were paid by the respondent No.2 on 20-8-2011 and according to the respondent No.2 the arrears of Rs.1,112,935 were provisionally deleted by the Manager (Technical) VIBC North Karachi. It is further asserted in para- 10 that the respondent No.2 in the meanwhile on 10-2-2012 had issued legal notice to K.E.S.C.
Demanding damages in the sum of Rs.20.000 (M) on account of maliciously prosecuting the respondent No.2 in Crime No. 44 of 2009. The gist of prayer made in Petition No. D-1030 of 2012 was that K.E.S.C. Be restrained from threatening the petitioner of disconnection and or from disconnecting the electric supply. The said petition came up before a Bench of this Court on 28-8- 2012 which passed the following order:-- 'Mr. All Lakhani files undertaking on behalf of respondent No.3 (KESC).
' Mr. All Lakhani, advocate states that no harassment will be caused to the petitioner, however, petitioner shall continue to pay recurring bill as may be issued from time to time".
(KESC added by us to identify respondent No.3)
8. The record further reflects that after the K-Electric conducted second raid on the factory of the respondent No.2 on 22-8-2013 at 1.30 a.m. And allegedly found him stealing electricity and thereafter disconnected the supply, lodged the FIR No. 47 of 2013 and issued bill of Rs.4,582,503. The respondent No. 2 on 23-8-2013 moved C.M.A. No. 22822 of 2013 in Constitution Petition No. D-1030 of 2010 to get his electricity restored and the affidavit filed with the said application which is very material and negate the case made out in Crime No. 150/2013 and therefore, relevant to ascertain the bona fide of the respondent No.2, we would like to reproduce the contents of affidavit, which reads as follows:-- "(I) Shakeel Ahmed Khan son of Muhammad Habib, Muslim, adult, resident of R-145, Sector 15/A-2, Buffer Zone, North Karachi, Karachi, do hereby make oath and state as under:-
(1) That I am the petitioner in the above matter hence fully conversant with the facts of the case and the accompanying application under section 151, C.P.C. For directions to the respondent No.3 to restore the electric supply to the factory premises of the petitioner and further not to harass the petitioner has been drafted and preferred upon my specific instructions contents whereof may kindly be treated as part and parcel of this affidavit for the sake of brevity.
(2) That 1 say that this Hon'ble Court on 28-8-2012 was pleased to pass an order upon the statement of the counsel of the respondent No.3 that no harassment shall be caused to the petitioner and that the petitioner shall pay the recurring bill as may be issued from time to time.
Since then I am paying all the current bills issued by the respondent No.3. It is stated that the counsel of the respondent No.3 in this Hon'ble Court and made assurance that he shall make arrangements with the management of the respondent No.3 to resolve the dispute regarding the previous bills. But no progress has been made by Me respondent No.3.
(3) That on 22-8-2013 at about 3.00 a.m. While I was sleeping at my home, I was informed by the Chowkidar on phone that KESC officials riding on a operation vehicle came to my factory premises Plot No. L-12, Sector 16-B, Shah Baig Gabol Town, North Karachi, Karachi, and disconnected the electric supply to the factory premises. In the morning at about 9.00 a.m. When 1 approached the concerned officials of the respondent No.3 and lodged my complaint; I was informed by them that no operation vehicle was detailed to disconnect electric supply to my factory premises. I requested them to restore electric supply but to no avail. On the other hand when I returned to my factory premises I found that a letter No. Nil dated 22-8-2013 was thrown inside my factory premises signed by someone for Engineer Abdul Razzaq, Manager Meter Inspection (Industry), VIBC, North Karachi, Karachi, alleging therein that electricity was being stolen. A sentence in hand is written. Three phases using directly and 4 core cable bypass'.
' A copy of the said letter is annexed and marked A.
(4) That I say that I am suffering mental torture and agony for no fault of my own. The officials of the respondent No.3 have levelled a very serious charge of stealing electricity against me for which I reserve my right to sue them.
(5) That my business has come to standstill and 1 am unable to meet my business commitments.
Hence this application.
(6) That whatever stated above is true and correct to the best of may knowledge and the legal pleas taken are true to the information received from my counsel which I verily believe to be true.
Karachi Sd/- 23-8-2013 DEPONENT"
9. In this backdrop the narration made in Crime No.150 of 2013 which the petitioner got registered on 1-11-2013 subject matter of this petition need to be examined. The relevant portion of the FIR reads as follows:-- "... I reside at the above mentioned address and am running a plastic bag manufacturing factory situated at Plot No.L-42, Sector 16/B North Gabol Town Industrial Area since 2009 some persons whom now I know as Majid Kala, Abdur Razzaq Lashari, Zia Ahmed, Saeed and Anwar use to visit my factory on different timings and used to introduce themselves as employees of KESC and would extort Rs.10,000 to Rs.15,000 as bribe from me. On one instance, on my refusal to do so they in connivance with KESC employees disconnected the electricity to my factory. I tried to get my electricity restored but could not succeed. I was compelled to file Const. Petition No. D-1030/ 2012 and on the order of Court my electricity was restored. These people are continuously harassing me and demanding bribe for me as extortion money. I informed the Police Station about this and resultantly these people in connivance with KESC officers issued me a Bill of Rs.46 lacs and demanded Rs.6 lacs as bribe to withdraw the said bill and ensured other future bills will also be reduced, however I refused such a demand. On 21-8-2013 at 8:00 p.m. In the evening, I was present at my factory along with my brother Sohail Ahmed and other factory workers when Majeed Kala, Abdur Razzaq Lashari, Zia Ahmed, Saad, Anwar and other unidentified individuals forcibly entered my factory and demanded Rs.6 lacs as bribe / extortion. Upon my refusal to do so they became violent towards me and threatened to kill me and burn down my factory. Majeed Kala told his companions to remove the CCTV camera and when my brother Sohail attempted to stop them, Abdur Razzaq Lashari grabbed him and snatched his Nokia mobile phone. They took away the CCTV Camera and mobile phone and threatened to come back to the factory again.
This event was witnessed by Aamir, Hameed and other factory workers. Again on the same night at 2:00 am KESC staff came and disconnected my factory's electricity. I state that my claim is for trespassing on my factory, stealing the factory's CCTV Camera and my brother Sohail mobile phone, threats to kill me and demanding bribe/extortion. I demand legal action against them. I verify this as my statement and has been heard correctly."
10. Scrutiny of the FIR in this background would reveal that the respondent No.2/complainant has alleged that since 2009 petitioners would visit his factory, introduced themselves as employees of KESC and would demand bribe/extortion money in the sum of Rs.10,000 to Rs.15,000, whereas, the record as produced by the respondent No.2 himself reflects that upon registration of Crime No.44/2009 on 2-10-2009 his electricity was disconnected which remained disconnected till mid of 2011 and after restoration of his electricity and issuance of bill the respondent moved this Court on 7-2-2012 by filing Const. Petition No.D-1030/2012 to seek an order restraining K-Electric from disconnecting his power supply. It is very strange that on one hand according to the respondent No.2, the electricity to his factory remained disconnected from 2009 to 2011 and on the other hand, he has alleged in the FIR that since 2009 the petitioners would visit his factory on different times and after introducing themselves employees of KESC would demand bribe/extortion money in the sum of Rs.10,000 to Rs.15,000. Additionally, this fact has not been stated by the respondent No.2 anywhere in his petition which was presented in Court on 7-2-2012. Beside, in his affidavit which was filed in Court in Constitution Petition No.D-1030/2012 on 23-8-2013 i.e. On the next day of the alleged happening on the basis whereof FIR No.150/2013 was lodged, disconnection and raid leading to registration of FIR No.47/2013, the respondent No.2 has not complained anywhere that despite undertaking on behalf of K.E.S.C. That no harassment would be caused to him the officers of K.E.S.C. Have allegedly barged into his factory and caused havoc as detailed in Crime No.150/2013 not a single word regarding the alleged incident on the basis whereof FIR No.150/2013 was lodged has been narrated in the FIR which clearly demonstrate the mala fide on the part of respondent No.2/complainant and smells concoction and an afterthought as a counterblast to FIR No.47/2013 lodged by K-Electric.
11. Now we would examine as to whether in the facts and circumstances Special Court had the jurisdiction to take cognizance of the offence as narrated in the FIR by testing it on the touchstone of section 6 of the Anti-Terrorism Act, 1997, while keeping in mind, that the object of enforcing the Anti-Terrorism Act, 1997 was to control terrorism, sectarian violence and other heinous offences as detailed in section 6 thereof and speedy trial of such offence. In short it is to be seen as to whether the object or the effect of such an act is to strike terror or create a sense of fear and insecurity in the minds of the A people or any section of the people/society or not. Reference can be made to the pronouncement of the Apex Court in the case of Bashir Ahmed (supra) relied upon by Mr. Zuberi wherein it was held that "In order to determine as to whether an offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R., record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect." Keeping this criteria in mind, the narration of the FIR after ignoring the exaggeration and concoction as detailed above reflects that it is at the most a case of demanding illegal gratification by the employees of the KESC for the simple reason that the threat against the non-payment was the disconnection of electricity and/or the consideration against the payment of bribe was to waive hefty bill of Rs.46 lacs and/or reduction of future bills. The object or the effect of such incident neither strike terror or create sense of fear and insecurity in minds of the people or any section thereof, therefore, the order impugned whereby Anti-Terrorism Court has assumed jurisdiction cannot sustain. It appears that the assumption of jurisdiction by the Anti-Terrorism Court was without taking note of the fact that initially the FIR was lodged under the general penal law, and it was the second Investigating Officer who without assigning any reason took the matter before the Anti-Terrorism Court and finally recommended the disposal of the crime as false. The Anti-Terrorism Court in the circumstances before taking cognizance or rejecting the final report of the police recommending disposal of case in "B" class ought to have ascertained its jurisdiction.
12. Coming to the question of quashment of the proceedings emanating from Crime No.150/2013, first we would like to decide the bar of jurisdiction as pleaded by the counsel for the respondent while placing reliance on the judgment of the Apex Court in the case of Director General Anti- Corruption Establishment, Lahore v. Muhammad Akram Khan, wherein, it was observed that where the trial Court has taken cognizance of an offence then the proceedings emanating from such FIR cannot be quashed and the fate of the case and or accused persons challaned therein is to be determined by the trial Court. It was further observed that it goes without saying that if after taking cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. To seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction. However, the dicta laid down by the Apex Court in the instant case is not applicable as we have already struck down the order where the Anti-Terrorism Court had taken cognizance of the offence by holding that it had no jurisdiction over the alleged acts/complained of. Secondly, Mr. Zuberi has invited our attention to a pronouncement made by a three member Bench of the Apex Court in the case of Maqbool Rehman (supra) wherein the Apex Court in para-9 of its judgment has laid down as under:-- "In law, there is no warrant for the argument that since the charge had been framed by the trial Court, proceedings could not be buried by way of quashment. The petitioner appears to be laboring under a misconception of law that in all cases where the accused persons are summoned by a Court of law,' it is incumbent upon the Court to record the evidence. There is no invariable rule of law and it will depend on the facts of each case whether to allow the prosecution to continue or to nip in the bud. In the case in hand, we think that the course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice. The grounds, which prevailed with the High Court for exercise of its inherent jurisdiction, are neither artificial nor perverse or shocking. Indeed in the circumstances of the case High Court was under a duty to ensure that the process of law was not allowed to be misused and indeed by passing the impugned judgment it has prevented the mischief and advanced the cause of justice."
13. We are also fully conscious of the fact that the inherent powers of this Court to quash proceedings are exercised rarely, however, as laid down by the Apex Court in the case of State v.
Asif All Zardari referred to by Mr. Zuberi that in exceptional cases such jurisdiction can be exercised without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. If the facts of the case so warrants to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
14. In the instant case we are very clear in our mind that crime No. 150/2013 was a counterblast to FIR No.47/2013 lodged by KESC against the respondent No.2 allegedly upon being found stealing electricity. The concoction, exaggeration and falsity of the FIR can be gauged from para-3 of the affidavit (reproduced in para 8 hereinabove) filed by the respondent No.2 in Constitution Petition No. D-1030 of 2012, on the next day of raid i.e. 23-8-2013 where not a single word or happening as concocted in the FIR has been narrated, on the contrary, it is stated that on 22-8-2013 at about 3.00 a.m. While the respondent No.2 was sleeping at his home KESC officials disconnected the electric supply to his factory, and sought its restoration. The respondent No.2 as per his own version for the first time allegedly approached the SHO Police Station Gabol Town through an application dated 1- 9-2013 which apparently was received at the concerned Police Station on 5-9-2013 which also narrates two incidents firstly on 21-8-2013 and second of again 31-8-2013 whereas, in the FIR which though was registered on the directions of the Court but per verbatim the petitioners, the second portion is totally missing. The accused in the instant crime are Senior Officers of KESC and holding position of Manager, Assistant Manager and Senior MIO who somehow the other had directed or conducted operation at the factory of respondent No.2 in consequence whereof Crime No. 47/2013 was registered. It is also undeniable position rather admitted by the respondent No.2 that in the year 2009 Crime No.44/2009 for stealing electricity was registered against the respondent No.2 though he was acquitted on a technical ground but it clearly reflects that the petitioner was holding grudge against the officials of KESC. Additionally, right from 2009 till 22-8-2013 not a single complaint was made by the petitioner that officers of KESC are demanding bribe/bhatta or threatening disconnection and rightly so as his electricity remained disconnected between 2009 to 2011 and, thereafter, the respondent No.2 started litigation with KESC. In our view there would be no parallel case of hardship as the officers of KESC are implicated and made accused before an Anti- Terrorism Court for performing their duties, therefore, asking them to approach the trial Court for seeking remedy under section 249-A or 265-K Cr.P.C. Would not secure the ends of justice rather it would be very harsh.
15. In the facts and circumstances, since we are convinced that there is no probability that the prosecution would result in conviction, the petitioners have successfully made out a case for quashment of proceedings emanating from Crime No.150/2013 under sections 384, 385, 395 P.P.C.
Of Police Station Gabol Town and the prosecution of petitioners on the basis of such FIR would be sheer abuse of the process against the petitioners. We consequently, by allowing this petition, quash the proceedings emanating from Crime No.150/2013.