' SYED SAEED-UD-DIN NASIR, J.---This is an application under section 561-A, Cr.P.C. For quashment of the proceedings including FIR No,34/2013, under sections 406, 109, 462-C, P.P.C., Police Station FIA Crime Circle Hyderabad, against the applicants/accused pending before the District and Sessions Judge, Mirpurkhas in Criminal Case No,207 of 2013.
2. The facts of the case as stated in the complaint by complainant Kabeer Baig son of Sher Khan Baig, the Acting Deputy Chief Engineer/Zonal Manager, SSGCL Mirpurkhas, are that Messrs Crystal CNG Filling Station, situated at main Hyderabad road Mirpurkhas is owned by Mr. Bharat Kumar son of Ladha Raam, Ramesh Kumar son of Khushal Das and Dheeraj Kumar son of Eshwar Das. The said CNG Filling Station was connected to the SSGCL System in the year 2008 after issuance of Marketing License by OGRA. As per terms and condition of agreement dated 24-9-2008, signed between Messrs Crystal CNG Station through its Managing " Partner Mr. Ashok Kumar and SSGCL through the then Chief Engineer Sales SSGCL Hyderabad. Under the said agreement, the owner of the said CNG Station was required to use one Compressor having capacity 17650 uft/hour; but, in the month of January, 2013, the complainant noticed that one additional compressor of same capacity was also installed at the said CNG station without approval of the SSGCL. Accordingly, the complainant made a written intimation to his higher authorities through email dated 22-1-2013. In response to the aforesaid letter, different technical teams visited the said. CNG station on 28-1-2013 and noticed that the customer was using another compressor of same capacity illegally and it was connected with the system of SSGCL. On 28-1-2013 a team comprising of Abdul Lateef Lashari, Engineer Sales Department Hyderabad and Mr. Muhammad Ahmer, Executive Sales Department SSGCL Hyderabad also visited the said CNG station and observed that second compressor having 500 mt3 found installed and connected with the existing system and one generator having capacity of 325 KVA found installed. On 30-1-2013, the complainant again reported to Mr.' Rasheed Khanzada, the Regional Manager SSGCL Hyderabad through email, wherein the complainant mentioned that once again the site of Messrs Crystal CNG station was visited by the complainant and found that the owner of the aforesaid CNG station has disconnected the gas, supply of both generator as well as the compressor from the main system, but still the compressor is installed in the compressor room, therefore, the complainant requested to direct the concerned Department of SSGCL Hyderabad and ascertain that whether the additional compressor was installed legally or otherwise, and if the additional compressor is found illegally installed, then the gas supply to the said additional compressor may be disconnected according to the policy of SSGCL. After a lapse of about three months, the complainant sent email to Rasheed Ahmed Khanzada, Regional Manager of SSGCL Hyderabad, wherein the complainant mentioned that Messrs Crystal CNG station is again visited by Engineer Distribution namely, Mr.Jamaluddin Narejo on 24-2-2013 and during his inspection, he again found that the owner of the said CNG station was using un-authorized additional compressor as well as one generator of 325 KVA. On 17-6-2013, the complainant again sent email to Mr. Rasheed Ahmed Khanzada, RM, SSGCL Hyderabad informing him that on 17-6- 2013 Engineer Distribution SSGCL has again visited the site of Inspection and found that owner of CNG station is again using unauthorized second compressor and one generator and requested to the concerned department that the illegal compressor may be removed and estimation charges may be recovered from the above CNG station as the meter which was installed on the said CNG Station was under capacity. Accordingly, Mr. Mir Haider Ali Talpur DCM Measurement SSGCL Hyderabad informed that the illegal load of the said CNG has been removed by way of removing unauthorized equipment and further directed the complainant to monitor the customer.
3. Thereafter, the complainant never visited the CNG station nor was informed by any corner that additional compressor as well as generator was installed by the owner of aforesaid CNG station.
Further statement was recorded by the complainant on 10-9-2013 under section 161, Cr.P.C. Stating that on 30-8-2013, the complainant along with the team of the SSGCL as well as FIA raided at Messrs Crystal CNG Filling station and noticed that two compressors were in running condition which were illegally connected, with the gas system by the owners and also noticed that one gas generator for power generation is also illegally connected with the gas system and the same was also found in operation. Both SSGCL and FIA Teams demanded the documents from representative of the CNG station regarding the installation of one Additional Compressor and one generator, but the representative of the CNG station failed to provide the documents and also failed to satisfy the raiding team regarding unauthorized compressor and one generator.
4. On the basis of aforesaid report and after receiving directions from Mr. Nbdul Rasheed Khanzada, RM SSGCL Hyderabad, the complainant lodged complaint with FIA Crime Circle Hyderabad wherein he mentioned that Messrs Crystal CNG station has installed unauthorized compressor and one gas generator due to which SSGCL sustained heavy losses on account of interfering with the distribution line by the accused and has committed gas theft.
5. On 10-9-2013, the complainant appeared in the office of Deputy Director FIA Hyderabad and got his statement recorded before the Investigating Officer. The complainant also saw the Field Proving Report and gas meter installed at Messrs Crystal CNG station, which was counter signed by the representative of CNG station, Mr. Muhammad Bux, Deputy Manager (S&M), Mr. Jamaluddin Narejo, Engineer Distribtion, Mr. Shafi Muhammad Chief Engineer (Measurement) and Mr. Mir Haider Ali Talpur DCM (Measurement) SSGCL Hyderabad, in which it is mentioned that the integrity of the meter was correct and no tampering/alteration/ addition was found in the meter is present in the I.O. File. The complainant further stated that the Field Proving Report and Computerized Test Report as submitted by. Measurement Department of SSGCL are very much authentic document and if it is found that the installed meter of M/s. Crystal CNG station was within range and accuracy limit and no tampering was found then their report needed to be considered as authentic. The excess gas volume against approved sanctioned load i,e, 17650 Cft/hrs on account of illegally connecting one compressor and one generator with the gas system of CNG station is yet to be determined by Sales Department of SSGCL Hyderabad and technical report of technical experts in this regard is still awaited.
6. Learned counsel for the applicants/ accused inter-alia contended that the applicants are businessm en by profession and are law abiding citizens of Pakistan. The applicants run their CNG Station business under the name and style of M/s. Crystal CNG Station are partners of past 7 years.
Provisional license was granted to them by the competent authority on 19-6-2006 for two years.
Thereafter, on 17-10-2008 a permanent license for 15 years was granted by the competent authority after completing terms and conditions for running the CNG Filling Station. The applicants are running their CNG Filling station honestly and diligently, therefore, their business thrived due to the reputation and honesty so much that they were unable to cope with the demand of CNG of their customers, therefore, the applicants made requests to the competent authority for installation of second CNG compressor which was granted on 25-9-2009, with the condition that the same will not be commissioned unless verified by third party Inspector appointed by the competent authority, subsequently a new compressor was installed, applicants made several requests for the appointment of third party inspector, however, the third party inspection was not conducted till today and the compressor is lying idle without use in wait of 3rd party inspection. After the installation of new compressor by the applicants/accused, their competitors got jealous and created hurdles and hindrances so that the applicants could not get third party inspection of the compressor conducted and get approved for the extra load of gas to run CNG filling station. The applicants have already acquired a major share of business in Mirpurkhas area and have invested huge amount of money for the installation .Of new compressor to meet the demands of new customers. Learned counsel further contends that in order to add insult and injury, their competitors approached the officials of SSGCL Mirpurkhas and forced them to lodge the complaint against the applicants on the pretext that the installation of new compressor at their CNG Station so also additional compressor the applicants/ accused commissioned the same without authorization. The FIR No,34/2013 under sections 406, 109 and 462-C, P.P.C. Has been lodged against the applicants malafidely with ulterior motives with nefarious designs by the officials of SSGCL. The FIA submitted interim challan on 13-9-2013 in the Court of Judicial Magistrate wherein I.O. Of the case categorically admitted that there is no theft of gas, therefore, the charges are dropped in the light of 161, Cr.P.C. Statements of the officials of .SSGCL including the complainant, which further fortify the claim of the applicants that the above referred FIR was lodged malafidely with ulterior motives to cause loss and damage as well as to tarnish the corporate image, respect and reputation of the applicants/accused.
7. In support of the application under section 561-A, Cr.P.C., the learned counsel for the applicants further contended that there are two charges against the present applicants; (1) that the applicants have tampered with the gas meter and; (2) that the applicants have installed extra compressor and one additional power generator at CNG station, in violation of the approved limit of the SSGCL. The learned counsel for the applicants has contended that the complainant in his statement under section 161, Cr.P.C. Recorded on 10-9-2013 has categorically stated that Mr. Mohammad Bux, Deputy Manager (S&M), Mr. Jamaluddin Narejo, Engineer Distribtion, Mr. Shafi Muhammad Chief Engineer (Measurement) and Mr. Mir Haider Ali Talpur DCM (Measurement)
SSGCL Hyderabad in their Field Proving Report of gas meter installed at M/s. Crystal CNG station have stated that integrity of the gas meter was found correct and no tampering/alteration/addition was found in the meter at present. Secondly, learned counsel for the applicants referred to annexure I/1 at page-75 of the file, which is statement dated 10-9-2013 under section 161, Cr.P.C. Of Mr. Muhammad Nawaz Selro, Deputy Chief Engineer (Measurement) SSGCL Hyderabad wherein he has stated that:-- "Further state that on 2-9-2013 on the instruction of DGM (Measurement) namely; Mr. Mir Haider Talpur I visited Messrs Crystal CNG Station situated at Main Hyderabad Road Mirpurkhas along with my team and Field Prover Vehicle and checked the Meter so installed at the said CNG Station. The said Field Proving was done on 2-9-2013 through Mobile found mounted on the Vehicle and the meter No,M2077494 WHIT EVC installed at Messrs Crystal CNG Station was found within accuracy limit and no tampering etc was found in the Meter. Accordingly I prepared the Field Proving report of gas meter installed at Messrs Crystal CNG Station along with Mr. Muhammad Bux Deputy Manager Surveillance and Monitoring (S&M) SSGCL Hyderabad, Mr. Jamaluddin Narejo Engineer (Distribution) SSGCL Mirpurkhas and representative of said CNG Station. As per Field Proving Report the gas meter No,M2077494 WHIT EVC installed at Crystal CNG Station was found within range/accuracy limit and no tampering etc was found in the Meter. Therefore, no theft was observed on this account at the said CNG station. The Field Proving report was also signed by Mr. Shafi Mohammad Chief Engineer (Measurement) and Mr. Mir Haider Talpur Deputy General Manager (Measurement) SSGCL Hyderabad."
8. The learned counsel next referred to annexure 1/3 at page-81, which is statement under section 161, Cr.P.C. Of Mr. Mir Haider Talpur, the Deputy General Manager (Measurement) SSGCL Hyderabad wherein he has stated that:-- "Further state that on 2-9-2013 I had directed Mr. Muhammad Nawaz Selro Deputy Chief Engineer (Measurement) SSGCL Hyderabad to visit Messrs Crystal CNG Filling Station Main Hyderabad Road Mirpurkhas along with his team and Field Prover Vehicle in order to check the integrity of the meter installed at the aforesaid CNG Station. Accordingly Mr. Muhammad Nawaz Selro and his team checked the meter bearing No,M2077494 with EVC installed at aforesaid CNG Station through Mobile Prover and found no discrepancy, irregularity and tampering with the meter along with Mr. Mohammad Bux Umrani Deputy Manager (S&M), Mr. Jamaluddin Narejo Engineer (Distribution) in the presence of said CNG Station Representative and submitted the same to me through Mr. Shafi Mohammad Chief Engineer (Measurement) SSGCL Hyderabad on the basis of EVC data and computerized report I signed the said Field Proving Report in token of its correctness. No theft of gas has been proved through the meter."
9. The learned counsel then referred to annexure 1/4 at page-83, which is statement dated 10-9- 2013 under section 161, Cr.P.C. Of Shafi Muhammad Chief Engineer (Measurement) SSGCL Hyderabad, wherein he has stated that:- "Surveillance and Monitoring (S&M) SSGCL Hyderabad, Mr. Jamaluddin Narejo Engineer (Distribution) Mirpurkhas and representative of CNG Station. The said report.Was also signed by Mr. Mir Haider Ali Talpur, Deputy General Manager (Measurement) SSGCL Hyderabad. The said Field Proving was done on 2-9-2013 through Mobile Prover mounted by the Vehicle and the meter No, M2077494 WHIT EVC installed at Messrs Crystal CNG Station was found within range and no tampering etc. Was found in the Meter. Therefore no theft was observed through EVC data reports and Field Proving report at the said CNG Station on account of tampering etc."
10. The next document relied upon by the learned counsel for the applicants is annexure J at page- 87 of the file, which is Memorandum addressed to GM (Billing)/ GM (Measurement) SSGCL addressed by Muhammad Arif Latif, DCM (LS) SSGCL, wherein in paragraph No,2 he stated as under:-- "We have been informed that DGM (Measurement-Hyd) subsequently got his meter removed and tested at Hyd. Meter shop. He issued a report stating that the meter has not been tempered and although additional compressor and gas generator were being operated but the gas load was within the meters capacity. Please confirm the same."
11. The learned counsel has further relied upon Memorandum dated 20-3-2014 as annexure J/1 at page-89 wherein in paragraph No,2, it is stated that "I as, Regional Manager (Hyderabad) and Zonal Manager: Mirpurkhas are under pressure of FIA and has to attend Court proceedings in Mirpurkhas every second week. This issue has been further complicated in view of clearance letter issued by the Measurement Department (copy sent to you) stated that the meter capacity allows two compressors and the generator to operate on the premised of said customer." The learned counsel for the applicants then referred to the interim charge-sheet dated 13-9-2013 wherein stated as under:- "During the course of investigation it revealed that the aforesaid owners of Messrs Crystal CNG Filling Station had installed one additional compressor at the said CNG station without obtaining proper permission from SSGCL and thereby violated the contract agreement which was made between the. SSGCL and Messrs Crystal CNG Filling 'Station. However during the course of investigation the Representative of Measurement Department, Field Proving Department and Distribution Department of SSGCL Hyderabad Region carried out the Field Proving of the gas meter No, M2077494 with EVC in the presence of Representative of Messrs Crystal CNG Filling Station and found no tampering, alteration etc with the Meter and no theft of gas was pointed out by them in their Field Proving Report and the Meter Testing Report which clearly goes to suggest that so far no evidence regarding tampering with the Meter and the distribution line has come on record, therefore, provision of section 462-C, P.P.C. Are not attracted. However, further investigation of the case has revealed that the accused persons espite of having OGRA permission for installation of one additional compressor at the said CNG station were required not to use the same without the SSGCL permission but they used the same in an unauthorized manner without getting permission."
12. In view of above facts the learned counsel has stated that continuance of the proceedings against the applicants/accused before the trial Court would be futile exercise, wastage of time and abuse of process of Court inasmuch as the evidence available on record is not sufficient to support conviction and the trial is not likely to end in conviction and therefore, the proceedings before the learned trial Court against the present applicants/accused should be quashed. In order to substantiate his arguments, the learned counsel for the applicants has placed his reliance on 2000 SCMR 122, 2011 SCMR 863, 1994 SCMR 798, 2009 YLR 169 and NLR 1999 Criminal 181.
13. Learned D.A.G appearing for the State has vehemently opposed the quashment of proceedings and has placed reliance upon 2000 PCr.LJ 1898 and PLD 2010 Karachi 204.
14. I have heard the arguments extended at the bar by the learned counsel for the applicants as well as learned D.A.G. Appearing for the State and have gone through the documents referred by the learned counsel for the applicants, material available on record and the case relied upon by the parties.
15. In the case of 'Miraj Khan v. Gul Ahmed and 3 others' reported in 2000 SCMR 122, it is held that there is no absolute bar on the power of the High Court under section 561-A, Cr.P.C. To quash an FIR and it is not always necessary to direct the aggrieved person to first exhaust the remedy available to him under section 249-A or 265-K, Cr.P. C. It is cardinal principle flaw that every criminal case should be adjudged on its own facts. The facts of one case differ from the other and, therefore, no rule of universal application can be laid down in a certain case so as to be made applicable to other cases. Even in the case reported in PLD 1997 SC 275, this principle has been recognized by the honourable Supreme Court that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr .P .C . , 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 warrant. The main consideration to be kept in mind would be, whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial which is not at all to end in conviction on the basis of evidence available on the record of the case.
16. In the case of 'The State through D.G. ANF Rawalpindi v. Muhammad Saleem Khan reported in 2011 SCMR 863, it is held that the High Court, vide impugned judgment, had converted the bail application of the accused respondent into petition for quashment of proceedings and allowed the same on account of the fact that FIR as well as other material was not sufficient to support conviction. The honourable Supreme Court declined to intervene in such an order passed by the honourable High Court.
17. In the case of 'The State v. Asif All Zardari and another' reported in 1994 SCMR 798, it is held that in exceptional cases the High Court can exercise its jurisdiction under section 561-A, Cr.P.C. Without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. If the fact of the case so warrant as to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
18. The next case-law is the D.B. Judgment of this High Court reported in 2009 YLR 169 wherein it is held that the charge framed in the case was groundless in the absence of any cogent evidence against the accused and could not result into his conviction. The proceedings pending against the accused before the trial Court were quashed in circumstances and he was acquitted accordingly.
19. In the case of -' Habibullah Khan v. The State' reported in 2000 PCr.LJ 1898 relied upon by the learned D.A.G, it is held that Criminal Case would be quashed where there was total lack of prosecution evidence. Provisions of section 561-A, Cr.P.C. Were preserved to meet a lacuna in procedure albeit said jurisdiction could be exercised to quash orders which were without jurisdiction, coram non judice and mala fide or where continuance of proceedings would amount to abuse of process of law or trial appearing futile exercise and wastage of time. In my view this judgment supports the contention of the applicants and not the respondents.
20. In the next case of 'Moula Bux and another v. The State' relied upon by the learned D.A.G.
Reported in PLD 2010 Karachi 204, which is SB Judgment of this Court, wherein it is held that "Grounds usually available under S.561-A, Cr.P.C. For quashing criminal proceedings, were (a) jurisdictional defect; (b) patent violation of some provisions of law; (c) the allegation as contained in the complaint or FIR, even if believed, no case was made out and the continuation of the proceedings would amount to sheer abuse of process of the Court; (d) when an endeavour was made to enforce civil liability through the machinery of criminal court and (e) in certain cases, inordinate delay amounted to abuse of process of court---Determination of the guilt or innocence of accused depended upon the totality of facts and circumstances revealed during the trial--- Exercise of power under S.561-A, Cr.P.C. By High Court at pre-trial stage, could not further the ends of justice, if undertaken to determine whether the prosecution evidence likely to come on record was true or false---Inherent jurisdiction as conferred upon High Court pursuant to the provisions as enumerated in S.561-A, Cr.P.C. Was neither alternative nor additional in its, character and was to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure was available-Provisions under section 561-A, Cr.P.C. Should not be used to obstruct or divert the ordinary course of criminal proceedings. In my view this case law relied by the learned D.A.G. Also supports the contention of the applicants and does not at all support the arguments extended by the learned D.A.G. In opposition of the present application.
21. Having given anxious consideration to the facts and circumstances arid documentary evidence, material available on record of the case, specially the "FIELD PROVING REPORT" dated 2-9-2013, 161, Cr.P.C. Statements of Mir Haider Ali Talpur the Deputy General Manager (Measurement) SSGCL, Hyderabad and Shafi Muhammad, Chief Engineer (Measurement) SSGCL, Hyderabad, exonerating the applicants/accused of all the charges and so also the charge sheet dated 13-9-2013 wherein it is categori ily stated that by Field Proving Report and Meter Testing Report no tampering with the meter. There is no evidence to suggest tampering/alteration with the meter and distribution line has come on record and no gas theft is pointed out, therefore, provisions of section 462-C, P.P.C.
Are not attracted, I am of the considered view that the continuance of aforesaid proceedings before the trial Court against the applicants/ accused would be an exercise in futility, wastage of time and abuse of the process of Court. It would be abuse of the process of law to allow the prosecution to continue with the trial.
22. In view of above situation, the proceedings pending before the trial Court emanating from. FIR No,34/2013, under sections 406, 109, 462-C, P.P.C. Of Police Station FIA Crime against the applicants/ accused are hereby quashed and the applicants/accused are acquitted from the charges leveled against them.
23. Instant criminal miscellaneous application stands allowed in the terms of above order.