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Criminal Revision No. 24 of 1985, decided on 10th March, 1986.

‑‑--‑S. 249‑A‑‑Electricity Act (IX of 1910), S. 39‑‑Acquittal‑‑Magistrat acquitting accused under S. 249‑A, Criminal Procedure Code but give no reason in support of acquittal order‑‑Case‑law relied upon by him not discussed‑‑Magistrate also overlooked fact of framing charge against accused‑‑Held, acquittal of accused was not in consonance with legal requirements as accused could not be acquitted unless Court heed proceeded with case and material was brought on record justifying passing of acquittal order‑‑Case remanded to trial Court for proceeding afresh in accordance with law.

‑‑‑S. 249‑A‑‑Electricity Act (IX of 1910), S. 39‑‑Framing of charge, held, raised a presumption that Police papers laid before Court disclosed prima facie case against accused.

‑‑‑S. 39‑‑Theft of electricity‑‑Payment of electricity not to absolve accused from liability of conviction and it would not be a case of double jeopardy‑‑Accused, held, was under obligation to make payment even for electricity in respect of which he was alleged to have committed theft regardless of whatever be verdict of Court as to his guilt on innocence‑‑Even if he was found guilty of theft of electricity and convicted in consequence, his conviction via‑a‑via recovery of electricity charges alongwith penalty from him, could not be construed as a case of double jeopardy.

‑‑‑S. 39‑‑Theft of electricity, criminal offence‑‑Definite allegations made against accused that he had committed theft of electricity by using artificial means of abstraction‑‑Allegations, held, constituted a criminal offence to be tried by a criminal Court and not a civil dispute to be adjudicated by a civil Court.

Syed Izhar Hyder Rizvi for Appellant.

A. Ghafoor Mangi, A.A.‑G. for the State.

Date of hearing: 5th March, 1986.

By this Revision Application, the Karachi Electric Supply Corporation (hereinafter referred to the K.E.S.C.) have sought the reversal of the order of Special Magistrate K.E.S.C., Karachi, dated 5th September 1984, whereby the respondent Naseer Ahmed was acquitted under section 249‑A, Cr.P.C.

The said respondent was challaned by P.S. K.E.S.C. to take his trial under section. 39, Electricity Act, 1910. The case against him was started on the F.I.R. lodged by Haji lqbal Hussain, Foreman of K.E.S.C. on 7‑2‑1984. It was alleged that on account of the respondent's failure to pay electricity charges, supply of electricity to him was disconnected. Thereupon he used artificial means of abstraction of electric energy and committed theft of electricity depriving thereby the K.E.S.C. of the electricity charges. After due investigation by the police the case was sent up in Court.

After framing of the charge, the accused /respondent moved application under section 249‑A, Cr.P.C. praying therein for his acquittal. In support of the application he produced photo copy of the supplementary electricity bill which was issued to him by the K.E.S.C. The bill required the accused to pay the arrears of electricity charges for three years and amount of penalty. The learned trial Court after hearing the arguments of the parties' counsel, ordered acquittal of the accused under section 249‑A, Cr.P.C.

It appears from the impugned order that the argument put forward on the accused's behalf before the trial Court was that the supplementary bill issued by the K.E.S.C. during pendency of the criminal case against the accused indicated that the K.E.S.C. was not sure about the charge of theft of electricity made against him and the dispute involved in the case was of purely civil nature and the criminal forum was chosen only to pressurize the accused into compromise with K.E.S.C. and that the accused could not be put to double jeopardy inasmuch as that on one hand he was required to pay the arrears of electricity charges arbitrarily calculated together with penalty and on the other hand he faced prosecution in the criminal case. After taking note of these arguments the learned trial Court passed an order of three lines simply stating that agreeing with the authorities of High Court, the accused was acquitted.

First of all the learned Magistrate has hardly given any reason, to support the order of acquittal. The authorities relied upon by him have not been discussed. He has also overlooked the fact of framing charge against the accused. Obviously framing of charge raised a presumption that the police papers laid before him disclosed prima facie case against the accused. This being so, the accused could not be acquitted unless the Court had proceeded with the case and the material was brought justifying the passing of acquittal order. Admittedly the case made no progress whatsoever subsequent to framing of the charge. However, a photo copy of the supplementary bill issued by K.E.S.C. to the accused was produced before the learned Magistrate alongwith the application under section 249‑A, Cr.P.C. It seems he based the acquittal of the accused on the said document.

It would appear that the supplementary bill of electricity charges was not a part of police papers laid before the trial Court as basis for framing charge against the accused. The said document was not produced even in course of recording of evidence as no evidence was recorded before acquittal of the accused. The learned Magistrate was, therefore, not competent to receive much less consider the document which was not produced in accordance with law for the purpose of acquitting the accused by interlocutory order. It seems no opportunity was afforded to the prosecution to furnish explanation with regard to the supplementary bill.

In any case it is not understood how the supplementary bill changed the entire complexion of the case. It is not clear to which period the said bill relates. Even if it covers the period during which the accused was alleged to have committed theft of electricity, yet merely by issuing of the said bill the accused could not be absolved of the liability of theft. All that bill required was that the accused was under obligation to make payment even for the electricity' in respect of which he was alleged to have committed theft So the recovery of the amount due on the electricity consumed by the accused during the disputed period would not absolve him from the liability to conviction if it was proved against him that he had committed theft of the electricity during that period. The necessary evidence in support of the prosecution case was yet to be produced and consequently it was yet to be determined if the accused was guilty of the theft of electricity or not. Nevertheless he was required to pay for the electricity regardless of whatever be the verdict of the Court as to accused's guilt or innocence. Even if he was found guilty of the theft of electricity and convicted in consequence, his conviction via‑a‑via the recovery of electricity charges alongwith penalty from him could not be constructed as a case of double jeopardy. The accused can be charged for the electricity consumed by him and simultaneously if it is proved that he has committed theft in respect of such electricity, he will be liable to conviction for the commission of the offence of theft. I also see no force in the argument that the dispute involved in the case is of civil nature. Since definite allegations are made against the accused that he has committed theft of electricity by using artificial means of abstraction, how can the allegation be adjudicated upon by civil Court. The allegations made against the accused obviously constitute a criminal offence which can only be tried by criminal Court.

For above reasons the order passed by the trial Court acquitting the accused under section 249‑A, Cr.P.C. was not in consonance with the legal requirements and as such the Revision Application was allowed and the impugned order, dated 5‑9‑1984 was set aside by the short order, dated 5‑3‑1986. By the same order the case was remanded back to the trial Court with direction to proceed with the case afresh in accordance with law. Above are reasons in support of the short order hereinabove.

M.Y.H. Petition allowed and case remanded.

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