IBAD-UR-REHMAN LODHI, J.---Mian Tariq Aziz-petitioner seeks pre-arrest bail in case FIR No.697, dated 25-7-2013 offence under section 462-C, P.P.C. Read with sections 3/4 of the Explosives Act, registered at police station Liaqat Abad, District Lahore. The petitioner has also filed Writ Petition No. 20344 of 2013 for quashment of the aforesaid FIR. Both these matters are being disposed of through this single order.
2. According to the allegations in the First Information Report, the petitioner is owner of an Industrial concern known as Tariq Aziz Box (Pak Board) situated at Peeco Road, Kot Lakhpat, Lahore, on receipt of information that in the said Industrial Unit, the natural gas was being theft and in order to accomplish that pilferage different apparatus were applied for getting additional and direct gas by bye-passing evaluating process installed in shape of meter. A raiding party including the technical experts conducted a raid and found the commission of offence under section 462-C, P.P.C. And found tampering with distribution pipeline of natural gas by applying different equipments at the site in order to facilitate the commission of such offence in an unauthorized and illegal manner. It was found that the gas load of 64-MCF per hour was in use, whereas, sanctioned load for the said Industrial. Unit was 04-MCF per hour. On the allegation that the natural gas, which was being procured through illegal means, was being stored in reservoirs provided for such purpose in shape of storage tanks, which in absence of any precautionary measures were termed as an open challenge of being exploded at any time.
3. Learned counsel for the petitioner has contended that after promulgation of Ordinance No.XVII of 2002 (Oil and Gas Regulatory Authority), Ordinance, 2002, the provisions of General Law i.e. Pakistan Penal Code would not be operative and provisions of Special Law would prevail and in this regard refers provisions of sections 22, 25 and 29 of the said Ordinance. With reference to different FIRs subsequently registered by the police not only against the present petitioner but also his real son as to a campaign against Dengue Larwa, learned counsel for the petitioner pleads mala fides on the part of the prosecution. He has also termed the petitioner a victim of political victimization, as according to him, the petitioner was a candidate for the Constituency of Punjab Provincial Assembly, PP-153 against the panel of a present ruling party and MNA elected from the said panel was subsequently assigned the job of detecting the gas and energy pilferage cases. He also argued that previously the petitioner had been in litigation with Gas Department with regard to the connection of natural gas provided in a hotel owned by the petitioner and having such grudge the present false case has been registered. It is also an argument of learned counsel for the petitioner that the meter installed at the premises in question had a number of time been changed/replaced, which indicates defective supply of the gas to the premises in question. Learned counsel for the petitioner further contended that at the time of raid at the factory, there was load-shedding of natural gas, therefore, allegation of use of the gas would not arise.
4. Learned counsel for the petitioner has vehemently argued that since the President has promulgated Ordinance II of 2014 known as the Gas (Theft Control and Recovery) Ordinance, 2014 and not only special procedure but also special forum for trial of the persons involved in such theft was provided in the said Ordinance and after 120-days when the same lapsed, the effect of such lapse would bring section 462-C, P.P.C. As redundant and no proceedings can be initiated subsequent thereto even under section 462-C, P.P.C. Learned counsel for the petitioner has termed the present proceedings under section 462-C, P.P.C., thus, as an illegal and mala fide.
5. Lastly, learned counsel for the petitioner while arguing the petition has also submitted that his such arguments may also be considered in Writ Petition No.20344 of 2013 seeking quashment of FIR.
6. Responding to said contentions, learned Legal Advisor representing the Gas Department as also learned Deputy Prosecutor General Punjab appearing for the State have argued that after lapse of Ordinance No.II of 2014, it was re-promulgated and in view of section 5(7) of the said Ordinance, all proceedings pending in any other court shall stand transferred to, or be deemed to be transferred to and heard and disposed of by, the Gas Utility Courts having jurisdiction under the said Ordinance, therefore, according to learned counsel representing the prosecution even by implication, section 462-C, P.P.C. Has not become redundant. With the technical assistance of the Engineers present for the Gas Department, learned counsel contended that when compressor was functioning at the time of raid it necessarily mean that the gas was being used. They have further argued that the petitioner is admittedly owner of the Industrial Unit and has already been involved in case of theft of gas even in 1998. They have referred the first version of the petitioner recorded during investigation on 16-8-2013, whereby, he admitted the use of compressor and boiler with the aid of extra load of the natural gas.
7. After hearing the learned counsel for the parties and going through the record, in order to clarify the position as to present state of the Gas (Theft Control and Recovery) Ordinance, 2014, Research Center of this Court was directed to provide the latest position, who have placed a notification dated 15-5-2014 issued by the Secretary, National Assembly Secretariat showing that the National Assembly in its meeting held on 14th May, 2014 passed by the following resolution:- "That the National Assembly resolves to extend the Gas (Theft Control and Recovery) Ordinance, 2014 (Ord.No.II of 2014) for a further period of one hundred and twenty days w.e.f 23rd May, 2014 under proviso to sub paragraph (ii) of paragraph (a) of clause (2) of Article 89 of the Constitution of the Islamic Republic of Pakistan."
Hence, when Ordinance II of 2014 has been extended for a further period of 120-days w.e.f. 23rd May, 2014, it cannot be argued that presently such Ordinance is not holding the field.
As far the argument of learned counsel for the petitioner as to the applicability of the Special Law i.e. Ordinance XVII of 2002 having prevailing effect upon General Law i.e. Pakistan Penal Code is concerned, it would be expedient to see the legislative intent of Ordinance XVII of 2002 and its scope. Preamble of any law is the key to such law and in order to see the intention of legislature with regard to any particular promulgation, the preamble is to be looked into. With reference to the said Ordinance, by its preambleit has been notified that the same was promulgated in order to foster competition, increase B private investment and ownership in the midstream and downstream petroleum industry, protect the public interest while respecting individual rights and provide effective and efficient regulations and for matters connected therewith or incidental thereto. Section 22 of the said Ordinance provides a process of licensing system, which shows that the Authority shall have the exclusive power, to be exercised in the manner prescribed in the rules, to grant, issue, renew, extend, modify, amend, suspend, review, cancel and reissue, revoke or terminate, a licence in respect of any regulated activity. "License" has been defined in section 2(xi) which means a licence granted under this Ordinance, whereas, "regulated activity" has been defined in section 2(xxxii) which means an activity requiring a licence. Section 22(2) and (3) of the Ordinance provides that if a licensee is, of the opinion that it is not financially viable for it to supply natural gas to a particular area based on the tariff applicable to it, it shall give reasons to the Authority and if the Authority agrees with the licensee for such stated reasons it shall report. The matter to the Federal Government and the licensee shall not be obligated to supply natural gas to the said area unless suitable financial arrangements are made by the Federal Government.
Section 23 of the Ordinance provides certain conditions for issuance of licence for the purposes of transmission, distribution or sale of natural gas.
8. What emerges from the joint reading of sections 22 and 23 is that regulated activity under the said Ordinance is confined to the supply of natural gas and also process of transmission, distribution and sale. There is a vast difference in between "licensee" and "consumer". The petitioner, who claims himself to be a consumer of natural gas, by referring different clauses of Oil and Gas Regulatory Authority Ordinance want to attain the status of a licensee and to get benefit of different provisions of OGRA Ordinance, which having the status of a consumer, cannot be permitted to avail. Learned counsel for the petitioner, by referring Section 25 of the said Ordinance, has argued that only punishment for theft of petroleum is two years as provided in section 25 of OGRA Ordinance, but presumably he has failed to realize that the offence provided in section 25 relate to any "regulated activity" and a licensee can be held responsible for violation of any such offence including the stealing of petroleum but a consumer is not permitted under the law to argue that the provisions of OGRA Ordinance are applicable as against him and that the offences provided in Pakistan Penal Code are not applicable.
9. This Court in Criminal Miscellaneous No. 5171-B of 2013 decided on 18-6-2013 has already held that theft of gas is a pilferage of public property. Again this Court in Criminal Miscellaneous No.13342-B of 2013 has held that keeping in view the prevailing energy crisis, the crime allegedly committed by the petitioner, may be deemed an offence against the society as a whole, for, every consumer is hit by the scarcity of the gas supply, which is mainly due to the factum of pilferage and malpractices. The political victimization, as has been argued by learned counsel for the petitioner as a mala fide, cannot be considered as available to the petitioner as the raiding party raided the premises of the Industrial concern of the petitioner was consisted upon engineering staff of the Gas Department and, prima facie, no political interference has been pointed out by the petitioner with the help of any material available on record.
10. 'For the present, the petitioner is connected with the crime which falls within the prohibitory clause of section 497 of Cr.P.C. And he has provided no justification for alleged theft of gas and in absence of any obvious mala fides with the prosecution, the petitioner do not deserve to the extra ordinary benefit of pre-arrest bail.
11. Resultantly, this petition is dismissed and interim pre-arrest bail already granted to the petitioner on 13-11-2013 is hereby recalled.
12. As far as the quashment of FIR is concerned, for the reasons mentioned above, no case for quashing the FIR is made out and the writ petition is also dismissed.