ABDULLAH BALOCH, J ---This judgment disposes of Criminal Appeal No.29 of 2019 filed by the appellant Muhammad Ibrahim son of Musa Kaleem, against the judgment dated 25th June, 2019 (hereinafter referred as "the impugned judgment" ) passed by learned Sessions Judge, Quetta (hereinafter referred as, "the trial Court "), whereby the appellant has been convicte d under section 462-K, P.P.C. and sentenced for a period he has already undergone with fine of Rs.20,000/- (Rupees Twenty Thousand Only) in default thereof to further suffer S.I. for One
(01) month.
2. Brief facts of the case are that on 22nd May, 2017 the complainant Amanullah, SHO QESCO lodged FIR No.23 of 2017 with Police Station FIA Quetta, alleging therein that on the aforesaid date the FIA raiding team along with QESCO officials pursuant to source of information conducted raid at the Ice Factory of appellant situated at Zehri Town Qambarani Road, Quetta and found the appellant committing theft of electricity power/energy through direct connection from nearby boshes of transfo rmer three phase No.LT-TO-U-2471 model PEL, 200 KV running his tube- well and service station with" theft of electricity power/energy and replacing 50 KV transformer into 100 KV transformer .
3. To substantiate its case, the prosecution produced as many as three PWs while the accused/appellant recorded his statement under section 342, Cr.P.C. and also recorded his statement on oath under section 340(2), Cr.P.C. and produced one Witness in his defense. After hearing the arguments, the learned trial Court convicted the appellant as mentioned hereinabove in para No. 1. Whereafter , the instant appeal has been filed.
4. Learned counsel for the appellant, at the very outset, contended that the controversy regarding the preference of Schedule over the Statute has already been settled that no Court shall take cognizance in case of electricity theft until or unless a complaint is filed before the Court of competent jurisdiction as provided under section 462-O, P.P.C., but while deciding the instant matter , the said procedure was not followed by the learned trial Court, which render all the proceedings illegal and unlawful. He further contended that even otherwise, the prosecution has failed to prove its case through confidence inspiring evidence.
5. On the other hand, learned Assistant Attorney General appearing on behalf of State contended that the judgment passed by the learned trial Court is well reasoning and the learned trial Court is vested with the jurisdiction and the same was exercised accordingly and no illegality and irregularity has been committed by the learned trial Court and the prosecution has successfully proved its case through confidence inspiring evidence. Hence judgment does not warrant interference by this Court.
6. Heard learned counsel for the parties and perused the record, which reveals that an FIR was directly lodged with the FIA Quetta by the complainant Amanullah, SDO QESCO with the allegations of theft of electricity power/energy in a concealment manner by the appellant from the near boshes of transformer for running of his tube-well and service station. After registration .of FIR, a raiding team of FIA along with officials of QESCO conducted raid and found the appellant committing theft of electricity power/energy directly from the electricity lines and in this regard the prosecution has produced as many as three PWs, but the question arises that whether the trial Court can take cognizance of a case where FIR was directly lodged with FIA instead of filing a complaint before the Court of competent jurisdiction as provided under section 462-0, P.P.C., which is dealing with the matters covered by the ibid chapter and the same has specifically been excluded the provisions of Cr.P.C. 1898 as well as any other law for the time being in force in the matters covered by Chapter XVII-B.
7. To resolve this question, whether the provisions of section 462-O, P.P.C. are applicable to the cases covered by Chapter XVII-B of the Pakistan Penal Code 1860, or the schedule appended to the Code of Criminal Procedure 1898, is to be followed in respect of the ibid offences. For ease of reference provisi ons of section 462-O, P.P.C. are reproduced as below: "462-O . Cognizance. (1) The Court shall try an offence punishable under this Chapter .
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or any other law for the time being in force, the Court shall not take cogniza nce of any offence under this Chapter except on a complaint made, with reasons to be recorded in writing along with full particulars of the offence committed under this Chapter , by duly authorized officer (not below Grade 17) of the Government or the distribution company , as the case may be."
8. Plain reading of ibid provision of section 462-O, P.P.C. made clear that the very intention of Legislature by using the phrase "Notwithstanding " in the heading of ibid Section is to exclude all other provisions available in the Code of Criminal Procedure, 1898 as well as provisions available in any other law for the time being in force in the matter covered by Chapter XVII-B of Pakistan Penal Code, 1860, the application of non obstante clause was elucidated by the Hon'ble Supreme Court of Pakistan in case titled "Muhammad Mohsin Ghaman and others v. Government of Punjab through Home Secretary Lahore and others " 2013 SCMR 85 wherein it was held that:- "One of the foundational principles governing the interpretation of non obstante clause is that it has to be read in the context of what the legislature intended in the enacting part of the provision. In 'Interpretation of Statutes' by NS Bindra, the author with reference to specific precedent case law precisely addresses this issue and comments as follows:-- "It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear , be taken to control the non obstante clause where both cannot be read harmoniously , for even apart from such clause a later law abrogates earlier laws clearly inconsistent with it.
The proper way to construe a non obsta nte clause is first to ascertain the meanin g of the enacting part on a fair construction of its words. The meaning of the enacting part which is so asce rtained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provis ion one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however , necessarily mean that there must be repugnancy between the two provisions in all such cases. The principle underlying non obstante clause may be invoked only in the case of irreconcilable conflict."
9. Thus, in view of the above, the offences relating to Chapter XVII-B of the P.P.C. shall be covered by the provisions of section 462-0, which ousts the applicability of the Code of Criminal Procedure, 1898 or any other law for the time being in force relating the assumption of jurisdiction of the Court in the matter . Thus, the Court shall not take cognizance of any offence under this Chapter , except on a complaint made, with reasons to be recorded in writing along with full particulars of the offence committed under this Chapter , by duly authorized officer (not below Grade 17) of the Government or the distribution company , as the case may be. It means that the Court shall not take cognizance of any of the offences relating to Chapter-XVII-B of the P.P.C., but except upon a complaint provided by the provisions of section 462-O, P .P. C .
10. Thus the matter in hand, all the proceedings carried out in violation of provisions of section 462-0, P.P.C. and it is settled principle of law that when law requires a thing to be done in a particular manner it must be done in the same manner as provided under the law , as deviation from the prescribed procedure amounts to violation of law .
11. A comparative study of section 462-O, P.P.C. has made it clear that FIA author ities illegally and unlawfully and without any mandate of law raided the Ice factory thereby travelled beyond their authority as the required procedure was not followed rather violate d, it is well settled principle of law that the mandatory requisites of law, which are pre-requisites, if not followed, then the entire proceedings would be nullified in the eyes of law; thus, the case of prosecution from very inception is defective, not maintainable and the - impugned judgment of conviction passed by the trial Court deserves to be set aside, the learned trial Court while delivering the impugned judgment has not considered the above legal aspects of the case, thus, conviction and sentence so awarded cannot be maintained.
For the above reasons, the appeal is accepted. The impugned judgment dated 25th June, 2019 passed by trial Court is set aside. The F appellant is acquitted of the charge.