1. MUHAMMAD SALEEM JESSAR, J.---Through this application, applicant/accused Muhammad Arsalan Ahmed seeks his release on post arrest bail in Crime No,83/2016 registered with PS, SSGC, Karachi, for the offence punishable under Gas Theft (Control and Recovery) Act, 2016 (hereinafter referred to as "the Act") read with section 34, P.P.C. He has preferred such application before learned trial Court, but it was turned down vide Order dated 04.7.2016, resulting into instant application. It will be advantageous to mention the relevant facts leading to institution of instant FIR against the applicant: "I am deputy manager in SSGC Karachi, today on 15.6.2016, at 1200 noon along with Sui Gas team (S and M) Department Operation incharge Rahim Bukhsh Deputy Manager of SSGC Karachi, Deputy Manager SSGC Rasheed More and other technical staff of SSGC police party of PS SSGC, Karachi, reached at Plot No,9/84 Sector 5-D, Landhi No,6, Karachi, we saw that the Karkhana is working there and on its back 2 boilers and Generator 1.5 KV etc. Fitted at Gas Service Line, disconnected with the aid staff and taken over an iron pipe I fit pipe I ft., length and 15 ft. Long rubber pipe Boiler being fixed in the earth could not be taken into the possession. One person namely Kamran son of Muhammad Jameel informed that the work which is carried out in the upper storey of Karkhana belongs to Siraj and work being carried out in the lower storey/part of the Karkhana has been taken on rent and one Mustaqeem son of unknown receives the monthly rents. The police arrested Kamran son of Muhammad Jameel, whereas Arsalan son of Muhammad Akhlaq was not present at site, Gas team made photographs of the site and prepared inspection note. My claim is against Kamran and Arsalan that they provided Gas from direct connection by means of rubber pipe to their Garment Karkhana and operated Generator steam pass boiler prayed for action against them."
2. After registration of FIR, the police concerned started investigation and arrested the applicant along with co-accused Kamran. After completion of legal formalities, the police submitted challan/charge sheet before the competent Court of law having jurisdiction on 12.7.2016.
3. Learned counsel for applicant submits that the applicant is innocent and has been falsely implicated in this case by the police as the premises belong to someone else and the owner of building has not been arrayed as an accused. The accused being tenant has been paying monthly rent to the owner, therefore, according to his view, if the version of prosecution is presumed to be true, the original culprit will be the owner of the premises. He further submits that nothing incriminating was recovered from his possession. He argues that the complainant has not complied with the provisions of section 6 of the Act as according to the procedure laid down therein, the complainant has to file complaint under section 200, Cr.P.C., but same has not been followed, therefore, entire proceedings in terms of instant FIR are null and void and thus, the entire case is doubtful. He further submits that the statute provides two punishments and following the dictum of law, the statute carrying lesser punishment is to be considered in favour of the accused at bail stage. He has also argues that the name of present applicant Muhammad Arsalan Ahmed does not find place in the FIR, and in the end of FIR, it is alleged by the complainant that his claim is against Kamran and Arsalan, as they allegedly provided gas from direct connection by means of rubber pipe to their garment Karkhana and operated general steam pass boiler.
4. In support of his contention, he has referred to the following, case laws: 2005 PCr.LJ 89 PLD 2014 Lah. 567 2012 PCr.LJ 858 1994 PCr.LJ 740 2016 MLD 230 and prayed for release of the applicant on bail.
5. On the other hand, learned counsel appearing for SSGC and on behalf of federation have opposed the bail plea of applicant on the ground that this is special law which has been enacted to curb the theft of natural resources as such crimes have increased in these days and because of that, the government is facing scarcity of the natural resources, but loss of the national exchequer. He further submits that the offence carries maximum punishment up to ten years, per section 23 of the Act, applicability of section 103, Cr.P.C. Is not mandatory and, therefore, the applicant is not entitled for release on bail. In support of his contention, Malik Sadaqat Khan, SPP, SSGC, has relied upon the unreported case of this Court viz. Criminal Bail Application No,545/2016 re. Muhammad Hanif v. State, whereby Single Bench of this Court has declined bail to accused in an offence under section 462(A-h)C/E, P.P.C. It will be beneficial to reproduce the section 6 which read as under: I have heard the parties through their counsel appearing on their behalf and have perused the record minutely, which reflects that complainant instead of filing complaint has lodged FIR regarding commission of alleged theft of Gas, thus it will be advantageous to reproduce section 6 of the Act, which reads as under:
6. Procedure for complaints and suits for default before Gas Utility Courts:
(1) Where a person is involved in an offence under this Act or where there are sums due or recoverable from any person, or where a consumer has a dispute regarding billing or metering against a Gas Utility Company, a consumer or Gas Utility Company, as the case may be, may file a complaint or suit, as the case may be, before a Gas Utility Court as prescribed by the Code of Civil Procedure, 1908 (Act V of 1908) or the Code of Criminal Procedure, 1898 (Act V of 1898)."
6. Perusal of above Section 6 of the Act, reveals that the applicability of Civil Procedure Code of 1908, Criminal Procedure Code of 1898 (Act V of 1898) and Pakistan Penal Code of 1860 (Act XLV of 1860) shall be applicable as mutatis mutandis. However, lodgment of FIR is violation of section 6 of the Act. Bare reading of section 6 further shows that the offence under section 15 of the Act is non- cognizable and proper course for complainant was to file direct complaint.
7. Admittedly, the second part of section 15 of the Act (supra), provides five years punishment for the alleged offence which does not fall within section 497(i), Cr.P.C. Moreover, investigation has been completed and applicant is no more required for further investigation, hence further detention will not serve any useful purpose. There is no apprehension of tampering with prosecution evidence as PWs are officials. In view of above circumstances, case of the applicant/accused requires further enquiry as required by section 497(2), Cr.P.C. Consequently, application in hand is allowed. The applicant shall be released on furnishing his solvent surety in the sum of Rs,200,000 and PR bonds in the like amount to the satisfaction of learned trial Court.
8. Needless to mention here that the findings made herein above, are tentative in nature and would not affect or prejudice the case of either side. The learned trial Court may also not be influenced while deciding the case on merits.