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Gas Theft Control and Recovery Act-2016: Flawed and Ambiguous Law

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Gas Theft Control and Recovery Act-2016: Flawed and
Ambiguous Law

Asghar Ali Mahar


(CJ, JM, and Research officer)

Legal Research Cell


High Court Karachi, Sindh

19th December 2020

Special Thanks to
Dr. Sasdia Zahoor (Assistant Professor)
in Law Dept. Islamabad Campus, Bahria University
for peer review and checking similarity indexes.
CONTENTS
Abstract 3
Introduction 4
1. Substantive Provisional Deficiencies 7
1.1 Constitutional Status 7
1.2 Ambiguities in preamble and definitions clauses 8
1.3 Substantive Law deficiencies: Identification of Crimes 10
2. Procedural Provisional deficiencies 12
2.1 Establishment of Court and Jurisdiction Issues 12
2.2 FIR V/S Complaint Issue 14
2.3 Legality of Investigation and Inquiry before Registration FIR 17
2.4 Police and Prosecution 17
Conclusion 18
BIBLIOGRAPHY 21
Abstract

Gas, a natural resource that has cast off devastation(cutting) over trees that are another

natural source for the provision of oxygen and carbon gas at the appropriate time is a very

essential life. Gas has not only rescued the tree on earth but is a reason for several easements

of humans. Government to preserve and safe transmission of it has taken appropriate steps

from time to time. Pilferage of it until the safe dispatch to the consumer always remained a

challenge for authorities. To curb the menace of gas theft, what the legislation has been

enforced to prosecute the gas pilfers is manifestly inadequate, ambiguous, and flawed. The

legal deficiencies provide offenders with a technical escape. It should be reformed by

introducing identical and effective substantive and procedural provisions. Besides pilferers,

the improper management of the gas company itself is one of the causes of the loss of the

precious resource, including lack of checking of leakage, improper reading of meters,

measuring errors, the shift of bulk sales to the retail sector with minimum billings. Reforms

of the faults would open the way for better management. This article is an effort to expose the

gaps, particularly in the law by adopting a legal analysis approach; an accepted form of a

qualitative method.
Gas Theft Control and Recovery Act-2016: Flawed and Ambiguous Law.
Asghar Ali Mahar*

Introduction

We are morally obligated to oblige the social contract of being law-abiding,

responsible, and humanitarian to society, country, and all over the world.1 Theft is a sheer

violation of that social contract. Precedently theft is a crime of moral turpitude.2 An act that

deprives the rightful owner permanently from his or her property and of its benefit. 3 The

property could be of any kind like natural resources are the rightful property of a country and

its people. If anyone commits theft such a national source however has inflicted the loss to

the whole society cumulatively. Similarly, gas theft is an unaccounted loss to all concerned.

Gas is consumed by more than 8 million industrial, commercial, and domestic

consumers.4 It is estimated that its theft cost Rs 50 billion loss to the national exchequer

annually.5 The SSGC (Sui Southern Gas Company Limited)6 and SNGPL (Sui Northern Gas

* Author is Civil Judge cum Judicial Magistrate, Research officer at Research Cell at Karachi, LLB, can be
contacted through email.asghara78@gmail.com
1
Michael Lacewing, Morality as social contract, Routeldge,p.1
http://cw.routledge.com/textbooks/alevelphilosophy/data/AS/WhyShouldIbeMoral/Moralityasasocialcontract.pd
f
2
Norton Tooby, Law of offences, Matter of Grazley, 14 I. & N. Dec. 330, 333 (BIA
1973)https://nortontooby.com/content/crime-moral-turpitude-theft-defined
3
Blacks Law Dictionary 1477 (6th Edition, 1990).
4
Syed Imran Ahmad, The menace of gas theft, Business Recorder, 27th April 2019, available at
https://iportal.riphah.edu.pk/newspaper/the-menace-of-gas-theft/.
5
Ibid.
6
Profile:-Sui Southern Gas Company (SSGC) is a Public Listed Large Scale Company (LSC) and is a
Pakistan’s leading integrated gas Company. The Government of Pakistan directly and indirectly owns the
majority of the shareholding of the Company. The company is engaged in the business of transmission and
distribution of natural gas besides installation of high pressure transmission and low pressure distribution
systems. SSGC transmission system extends in the Provinces of Baluchistan and Sindh comprising over 3,614
KM of high pressure pipeline ranging from 12″ – 42″ in diameter. The distribution activities covering over 1200
towns in Sindh and Baluchistan are managed through its regional offices. About 384,979 million cubic feet
(MMCF) gas was sold in FY 2015-2016 to around 2.8 million industrial, commercial and domestic consumers
in these regions through a distribution network of over 44,761 Km. The company also owns and operates the
only gas meter manufacturing plant in the country, having an annual production capacity of 356,000 meters on a
single shift basis. The Company is managed by an autonomous Board of Directors of 11 members. The
Managing Director/ Chief Executive is appointed by the Government of Pakistan and has been delegated with
such powers as vested by the Board of Directors necessary to effectively conduct the business of the company.
Available at: https://www.ssgc.com.pk/web/?page_id=68.
Pipelines Limited)7 suffered 11 % & 13 % Unaccounted For Gas (UFG)8 losses amounting to

Rs 24 billion and Rs 26 billion respectively due to wrong strategies of the Government. 9 UFG

stands for a difference between the total volume of gas purchased by the companies and the

volume of metered gas supplied to the consumer.10 Within the last 5 years, UFG losses

counted with a 1% increase yearly causing Rs 154 million loss to both companies. That is one

of the major causes of the increase in the gas price.11

Earlier, the companies have been given a target to reduce the UFG loss “1 %” yearly

with the support of law enforcement agencies under the Gas Theft Control and Recovery Act-

2016 (Act, 2016).12 Since the promulgation only one accused was sentenced till the year

201913 out of several cases despite effective recoveries and prima facie evidence were

brought before the courts. Public view could be to hold accountable the courts for such scot-

free acquittal but the Act,2016 has flaws so inadequate to firmly grip the violator.

7
Company Profile:- Sui Northern Gas Pipelines Limited (SNGPL) was incorporated as a private limited
Company in 1963 and converted into a public limited company in January 1964 under the Companies Act 1913,
now The Companies Act 2017, and is listed on the Pakistan Stock Exchange (PSX). The Company took over the
existing Sui-Multan System (217 miles of 16 inch and 80 miles of 10 inch diameter pipelines) from Pakistan
industrial Development Corporation (PIDC) and Dhulian-Rawalpindi-Wah system (82 miles of 6 inch diameter
pipeline) from Attock Oil Company Limited. The Company's commercial operations commenced by selling an
average of 47 MMCFD gas in two regions viz. Multan and Rawalpindi, serving a total number of 67 consumers.
Sui Northern Gas Pipelines Limited (SNGPL) is the largest integrated gas company serving more than 6.5
million consumers in North Central Pakistan through an extensive network in Punjab, Khyber Pakhtunkhwa and
Azad Jammu & Kashmir and is certified against ISO 14001:2015 & OHSAS 18001:2007 Standards. SNGPL’s
11 sites have been registered under the "SMART2" Program by the Pakistan Environmental Protection Agency
(PAK-EPA).available at:
https://www.sngpl.com.pk/web/page.jsp?pgids=322&pgname=PAGES_NAME_a&secs=ss7xa852op845&cats=
ct456712337&artcl=artuyh709123465
8
UFG in parlance of gas distribution and Transmission Company mean the difference b/w gas purchased in
volume, gas billed in volume and gas used internally by the company for its operation. The UFG phenomenon
can be classified into two categories: Technical which includes above and under-ground leakages (comprise
35% of UFG) LOST GASES. Non-technical which includes theft (approx. 30%), measurement errors (20%) and
billing errors (15%) UFG. https://www.ssgc.com.pk/web/?p=1113
9
Special Police Stations to be established across Pakistan for UFG,16 Jan, 2019,
https://timesofislamabad.com/16-Jan-2019/special-police-stations-to-be-established-across-pakistan-for-ufg
10
Masoor, A. (2013) Pakistan’s Gas Crisis due to Gas Theft & Unaccounted for Gas (UFG). International
Journal of Renewable Energy Technology Research, 2, 53-58.
11
note 9. ibid.
12
ibid.
13
Court announces first-ever conviction in gas theft case, available at:
https://www.thenews.com.pk/print/318115-court-announces-first-ever-conviction-in-gas-theft-case (accessed on
25-10-2019) & Gas thief gets sentence under Gas Act 2016, available at:https://nation.com.pk/18-May-
2018/gas-thief-gets-sentence-under-gas-act-2016
The Act, 201614 is inadequate to take punitive measures against the offenders due to

its provisional ambiguities, flaws that adversely provide to offenders an easy chance to get

acquittal and go scot-free. The question is why an accused gets an acquittal despite recovery

and other prima facie evidence against him? Why still after the three years of promulgation of

the Act, only a single accused was punished?15 Just because of the flaws prevailing in the

Act. Accused wins acquittal not because he was innocent but because of the irregular and

uncodified procedure adopted by authorities.

Admittedly there is not enough literature available to negate the claim of this article,

however, some articles and case laws have been reviewed for critical analysis. Due to limited

sources primary and secondary sources have been relied on to answer the research questions

that the Act is inadequate substantive and procedural law by identifying the legal flaws that

benefit the accused, and the areas where reformation is required.

The article has the objective to expose the substantive and procedural inadequacy of

the Act, to identify the legal defect and flaws in the Act, to suggest appropriate reforms and

amendments erase deficiency with a qualitative methodology. Doctrinal types of research

have been used based on primary and secondary sources containing statutes, decided cases,

journal articles, and news articles on the topic. Provisions of the statutes in operation and

court cases in Pakistan are analyzed to explore the flawed areas of the Act like ambiguities,

deficiencies lying in the investigation, arrest, and lodgment of First Information Report (FIR),

complaint, parallel civil and criminal remedies, substantive and procedural defect. This is a

purely legal study that is primarily based on legal analysis. Henceforth, no fieldwork such as

questionnaire surveys or interviews were carried out.

14
Act XI of 2016, promulgated on 23rd March 2016.
15
Court announces first-ever conviction in gas theft case, available at:
https://www.thenews.com.pk/print/318115-court-announces-first-ever-conviction-in-gas-theft-case (accessed on
25-10-2019) & Gas thief gets sentence under Gas Act 2016, available at:https://nation.com.pk/18-May-
2018/gas-thief-gets-sentence-under-gas-act-2016
1. Substantive Provisional Deficiencies

Special laws should have substantive and procedural potentials. like it must be

Specific, identical with criminal and civil wrongs suggesting punitive measures with the

definite procedure. However, the bare reading of the Act suggests the mixture of civil and

criminal remedies with a conflictive procedure.

1.1 Constitutional Status

To deal with the menace of gas theft, the Ordinance 201416 was presented by the Law

and Justice Division before the President without discussion in the Parliament. 17 It was

promulgated18 with the assent of the president.19 President constitutionally empowered to

approve the presented ordinance for 120 days20 without holding Sessions and can be extended

for once subject to resolution in the National assembly.21

Accordingly, the Ordinance, 2014 on 22nd May 2014 completed its promulgated age

and as per bar imposed by 18th amendment it could be extended once and if supposedly this

Act extended its next period would have had been lapsed on 19 September 2014, and

thereafter became repealed. On 23rd March 2016, The Act, 201622 was passed ditto the

Ordinance II of 2014, its flaws evidence was introduced without discussion in the

Parliament.23

16
Ordinance II of 2014, Extraordinary publ., Part I., No.F.2(1)/2014-Pub.
17
Preamble of the Ordinance The Gas(theft control and recovery) Ordinance-2014.
18
SRO.F.2(1)/2014-Pub dated 23rd January 2014.
19
Preamble 2nd para of the bill.(Then the president Mamoon Hussain).
20
Constitution Article 89. Article empowers the president to promulgate an ordinance for 120days if
circumstances warrant as emergent without session of senate. Such promulgated ordinance president can
withdraw under sub clause (b) at any time otherwise shall be stand repealed if it was not further extended for
120days with after by resolution of National assembly.
21
Article 89(2)(i) proviso, 18th amendment of constitution of Pakistan.
22
Act XI of 2016.
23
The year book-2015-16, Government of Pakistan Ministry of Parliamentary affairs Islamabad, Annexure IV,
serial no.29, p.37.
The emergent situation that could warrant to won the satisfaction to give assent by the

president to promulgate undiscussed Ordinance II of 2014 and its extension provided through

18th amendment for further 120days on attaining maturity of its first promulgation and its

promulgation once again with status of Act, 2016 with or without adopting property

legislative produced before passing ditto with the changed status is an open question for

further research.

1.2 Ambiguities in preamble and definitions clauses

The preamble of the Act provides prosecution of cases of gas theft and other offenses

related to gas and to provide the procedure for recovery of amounts due. The word

prosecution infers that it is procedural and substantive law as well. Recovery is a civil remedy

for it, some appropriate procedure is given to some extent. Law should be easy as a layman

can extract its intent. However, Section 2 of the Act24 defines the terms incorporated or

discussed in Act is itself ambiguous.

For example, The axillary pipeline25 has defined the line which starts from the

distribution pipeline to the outlet (compressor).26 A distribution pipeline27 is defined as the

line used for transporting natural gas downstream28 at a pressure not exceeding 300 PSIG

from sales meter stations29 to the end consumer (at axillary pipelines). Gas pipeline30

24
The Gas theft control and recovery Act-2016, Section 2 of “definition.
25
Ibid. Section 2(a).
26
Ibid. Section 2(c).
27
Distribution lines: Natural gas distribution lines, put simply, are the final step in delivering natural gas to the
consumer. While some large industrial, commercial and electric generation customers receive natural gas
directly from high-capacity interstate and intrastate pipelines, most of us get our natural gas from a local or
regional gas utility through a network of underground distribution lines. Transmission pipelines transfer natural
gas to a utility at a point usually called the “citygate,” and from there, utilities deliver gas to each individual
customer’s meter via an extensive network of small-diameter distribution piping.
28
Downstream means converting the gas into the fuels and finished product.
https://energyhq.com/2017/04/upstream-midstream-downstream-whats-the-difference/
29
Stations which regulate pressure of gas.
30
Note 24. Section 2(f).
(transmission lines)31or (midstream)32is defined as a recognized system, pipe or arrangement

of pipes which transport gas and includes right of way/land strips compressor, repeater,

station means the lines which start from upstream to downstream line heavy distribution line

directly to the Grid station, CNG stations, etc. Main pipeline33(Gathering lines)34 which

transports including transmission lines with gas at a pressure not less than 300 Psig for

transmission from gas fields to various distribution centers upstream35 of the sales meter

Stations. Means starts from well (upstream) to downstream, sales meter stations. without

experts or persons familiar with that system of pipelines it is incomprehensible.

Similarly, consumers are not identically categorized rather terms (commercial)36

domestic consumers,37 tempering38 has been borrowed from PPC, with a single new term

unauthorized39use of gas introduced here.

By way of new terms, unauthorized use of criminal liability is introduced only on

either consumer but what the liabilities on the company in case of default of any kind have

been skipped. such exemption has brought an autocratic element in the Act rather than a

31
Transmission lines: Natural gas transmission pipelines are all about movement large volumes, long distances.
Often designed as a grid or a trunk line system, transmission pipelines are wide-diameter lines that move natural
gas from a gathering, processing or storage facility to a large-volume customer, distribution system or another
processing/storage facility. Grid-style transmission systems usually include a large number of laterals, or
branches off the mainline, that serve major market areas.
32
Midstream includes pipelines and all the infrastructure needed to move these resources long distances, such
as pumping stations, tank trucks, rail tank cars and transcontinental tankers.
https://energyhq.com/2017/04/upstream-midstream-downstream-whats-the-difference/
33
Note 24. Section 2(k).
34
Gathering pipeline systems collect raw natural gas from wellheads in production fields, and move it either to a
processing plant or to an interconnection with the mainline transmission grid (see transmission pipelines below),
depending on the initial quality of the product. These small-diameter underground pipelines are connected to a
producing well, and converge with pipes from other wells. Here, the stream of natural gas may go through an
extraction process to remove water and other impurities.https://www.enbridge.com/energy-matters/energy-
school/gas-pipeline-primer-101
35
Upstream means the drilling and bringing natural gas resources to the surface(production).
https://energyhq.com/2017/04/upstream-midstream-downstream-whats-the-difference/
36
Note 24. Section 2(b)
37
Ibid. Section 2(d)
38
PPC-1860, section 264-A, Definition (j).
39
Note 24. Section 2(s).
balanced law a sheer deprivation of the right of equity.40 Moreover, what amount of pressure

is authorized/unauthorized for a consumer especially for the domestic consumer is not

identically specified to appraise its legality for the public at large.41

1.3 Substantive Law deficiencies: Identification of Crimes

It is not theft if committed by the consumer however it is a breach of social contract

with violation of the agreement with the company and criminal breach of trust. Theft means

an act is done within one transaction in a particular manner and time and disappears from the

scene while that gas theft is persistent loot for illegal profit along with the presence of tools at

the scene.

If we consider it as a theft, it means if on each day the theft was repeatedly

committed, then such an act of felony of a single day would be counted as a single

transaction. In that sense, several acts of theft committed by a pilferer this way in a month or

sometimes for years would go innumerable transactions. If a transaction exceeds from days to

weeks and then months, is it impossible to charge the accused and punish him for similar

charges hundreds of times? In the Theft Act, 1968 appropriation is also termed in the

definition of theft, and breach of confidence has been attributed to land or anything forming

its part in terms of property.42 However, the PPC has independently defined theft43,

40
Equality before the law: Article 14 of the constitution guarantees that all people shall be equally protected by
the laws of the country. It means that the State will treat people in the same circumstances alike.
41
As per the Company Gas Sale Agreement with its customers, authorized gas usage is: One meter for one
kitchen and one geyser utilization for purely domestic purposes. available
at:https://www.ssgc.com.pk/web/?page_id=111824
42
See section 1(b and C) and section 3 of the Theft Act 1968, Chapter 60. Definition of “theft” Basic definition
of theft. (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the
intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. (2)It is
immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.(3)The
five following sections of this Act shall have effect as regards the interpretation and operation of this section
(and, except as otherwise provided by this Act, shall apply only for purposes of this section).
Section.3.“Appropriates”.(1)Any assumption by a person of the rights of an owner amounts to an appropriation,
and this includes, where he has come by the property (innocently or not) without stealing it, any later
assumption of a right to it by keeping or dealing with it as owner. (2)Where property or a right or interest in
property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of
misappropriation44, and criminal breach of trust45 with different punishments respectively.

The theft could be random, cluster, and dispersed.46 In Iran answering this query the spatial

patterns for the gas, theft formula was used to analyze with the test of the average basis for

the conclusion.47 The same could be profitable here in our country to average the theft to

determine its nature.

Under the agreement, the right of a consumer commercial, industrial or domestic

occurs from meters wherefrom the axillary pipeline ends connected with transmission line or

midstream line or Gas pipeline. Meter is the consumer’s entrusted property if he tempers with

the meter(s) in either form or connects directly axillary pipeline means misappropriated the

property in revocation of the contract or violated agreement committing criminal breach of

trust on the property(gas), not the theft. What he has gained illegal profit from such breach is

the misappropriation of that property (amount) which could be counted with the loss under

UGF formula and recoverable from misappropriator.

The exploit or interference or damage or with it, or unauthorized use of the property

of any kind with either transmission (pipeline) or any other kind of such line which is the

actual property of government or company by a person other than a consumer. His act may be

counted as the damage (mischief), unauthorized usage for profit (theft of property) may be

counted under UGF formula and recoverable from mischief committer.

And if the same act is committed with intent to cause damage to disrepute the country

may be noted a terrorist act by the same person and should be dealt with under ATC laws. If

the consumer does not misappropriate or mischief but knowingly let it be, the consumer may

rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to
theft of the property.
43
See Section 378 read with 379 PPC
44
See section 403 PPC
45
See Section 405 read with 406 PPC
46
Touhidi, S.R.R. and I. Davoudi, Spatial Analysis Applied for Gas Theft Modelling in Tabriz City, Iran.
Journal of Geoscience and Environment Protection, vol.1, no.6, 2 nd February 2018,p.1-19. Available at:
https://doi.org/10.4236/gep.2018.62001
47
ibid.
be noted as misappropriator and the other person may be noted as instigator may be

prosecuted under the common object/interest principle. The person who knowingly gets relief

or utilizes such misappropriated or mischievous property may be jointly prosecuted under the

common object/interest principle. These gaps or lack of substantial provisions leaving its

effects at volume.

2. Procedural Provisional deficiencies

The Act, 2016 is silent about criminal procedural provisions about FIR, investigation,

warrant, arrest, remand, bail, compromise, etc. The liability was rest with wordings that the

matter concerning which procedure has not been provided shall in all follow the procedure

laid down in the CPC and Cr. P.C.48 This mingle of procedures infuses further confusion.

2.1 Establishment of Court and Jurisdiction Issues

Jurisdiction of all other courts and authorities have been barred in respect of matters

which are under the jurisdiction of Gas Utility Courts which to be established under

Ordinance II of 2014.49 Reminding the said provisional bar50 Registrar Sindh51 High Court

issued a letter to the Secretary Government of Pakistan, Ministry of Law and Justice,

Islamabad for the establishment of Gas Utility Courts.52 It was requested to take immediate

steps on a top priority basis to establish a sufficient number of Courts after consultation with

the High Court.53

The letter evinces that contemporary issue lying in the Act-2016 was considerably

pointed out pressing that complaints/criminal cases registered/filed under the Act-2016 were

48
Note 24.section 5(3).
49
The Gas theft control and recovery ordinance-2014, Section 5(5) and note 24, section 2(NOTES).
50
Note 43.ibid and note 24, section 2(NOTES).
51
As per 18th amendment of the Constitution of Pakistan the word Sind substituted to Sindh.
52
Registrar of the High Court Sindh Karachi letter, No.Gaz/Estb/Gas Utility Courts, Dated:28-03-2017,
available at: http://districtcourtwest.gos.pk/images/Notifications_images/1/95.pdf
53
Note 24.ibid. section 3(1).
being assigned to the ordinary courts despite bar on their jurisdiction for adjudication54,

particularly pre-arrest and post-arrest bail application involving the liberty of person has

exigent consideration/adjudication by a court of law. To avoid the chaotic situation, District

and Sessions Judges in Sindh have been authorized to make stop-gap arrangements to deal

with cases registered under the Act-2016 within territorial limits by assign jurisdiction to the

Judicial Magistrate in their respective districts for carrying out day to day criminal

proceedings and trial till the establishment of Gas Utility Courts.55

In pursuance of the said letter after consultation with the Chief Justice of Sindh High

Court, Karachi on 2nd May Ministry of Law notified 27 Gas Utility Courts.56 Instead of

establishing new courts, only powers were conferred upon the District and Sessions Judge of

27 Districts all over Sindh.57 However, to date nor the independent courts have been

established neither the Rules are framed to fill the gaps lying in this Act-2016.58 In Sindh,

Magistrates are dealing with the remands to send up the final reports to the courts of District

and Sessions Judge after taking cognizance under administrative capacity. The Magistrate

dealing with and has to face issues of the bar on cognizance put by section 5(2)59 and 6 of the

Act and further confusion infuse by section 2460 which categorizes the offenses under this

Act cognizable and non-bailable.

54
Note 24.section 4(1).
55
Note 45
56
Government of Pakistan, Ministry of Law and Justice, Gazette, Part II. SRO.No.293 (1)2017, Islamabad 2nd
May 2017.
57
Note 49.ibid.Table of the notification.
58
Note 24. section 30.
59
Powers of the Gas Utility Court.- (1) Subject to the provisions of this Act, a Gas Utility Court shall,
(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the Code of Civil
Procedure, 1908 (Act V of 1908); and…...(2) Notwithstanding anything to the contrary contained in this Act, a
Gas Utility Court shall not take cognizance of any offence punishable under this Act except upon a complaint
made in writing by a person authorized in this behalf by a Gas Utility Company in respect of which the offence
was committed.
60
24. Arrest for offence against certain sections. notwithstanding anything contained in the Code of Criminal.
Procedure,(Act V of 1898) all offences under this Act if committed by any person other than a domestic
consumer shall be cognizable and non-bailable.
2.2 FIR V/S Complaint Issue

The word “shall” has a mandatory nature for the given direction and “may” offers

discretion.61 The word “may” involves a choice and “Shall” an order, however, may an

enabling word become mandatory when the object of the power is to effectuate a legal right.62

Similarly the section 5 of the Gas theft Act-2016 placed the bar on the Gas Utility Court

Specifically for taking cognizance of the word “shall” and “except”.63 Accordingly, the court

would not take cognizance until the complainant must be an authorized person of the

company on this behalf for that purpose, has not filed a written complaint.64 It is reiterated in

Section 6 of this Act65 that further provide a procedure for availing either remedy complaint

or suit for both parties in the case.66 Once again there in this section FIR is not suggested as a

remedy for the aggrieved party. While Section 24 of the Act enunciated all offenses under

this Act cognizable and non-bailable except if any committed by a domestic consumer.67 That

contraction infuses confusion when a person used to be produced before the court for remand

in an FIR. The prominent principle of administration of justice ordains that “A communi

oberventia non est recedendum” where the law requires an act to be done in a particular

manner, it had to be done in that manner alone.68

61
Gadoon Textile Mills v. Wapda, PLJ 1997 SC 739
62
Muhammad Sadiq and others v. University of Sindh, PLD 1996 SC 182.
63
Note 24. section 5(2).
64
Ibid. section 5(2).
65
Ibid. Section 6(1).
66
If company is aggrieved may sue consumer by complaint or by suit or if consumer is aggrieved against
company may file a complaint or suit.
67
Note 24. Section 24.
68
Ali v. Amir and 3 others PLD 1971 SC 124; Rashid Ahmad v. The State PLD 1972 SC 271; Shabbir Ahmad
v. Mst. Kabir-un-Nisa and others PLD 1975 SC 58; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086
and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255, Zaida Perveeen@GOoma
and another v. The State.
The word “except”69 leaves no room for the lodgement of FIR for gas theft offenses.

Responding to that ambiguity apex court held the view that lodging of FIR is a violation of

section 6 of the Act.70 it was left unsolved that in case of such violation what fate of the FIRs

if were lodged. Honorable Supreme Court in the case of Mian Haroon Riaz Lucky& another

v. The State71 held that bar of section 5(2) of the Act does not stand in impediment to the

registration of FIR, arrest, or commencement of investigation because restrictions are for the

Court and Company only so, therefore, the procedure provided under section 5(2) should

follow. In such a chaotic and confusing situation, some courts canceled the FIRs, and

somewhere cases have been sent up for trial having taken cognizance of final reports.

Later, Sindh High Court resolved the query interpreting the intent of provisional

ambiguity in the criminal bail application in the case of Muhammad Akram v. State72 it is

construed that this Act, 2016 has an overriding effect73over all contemporary enactments and

general law.74 Thus, borrowing the inference alike section 195 CrPC75 for taking cognizance

would not apply to the Gas Utility Court subject to its special nature, in this regard reliance is

placed on case law re-Javed Iqbal & others v. The State.76 Special law has a prevailing

preference over all the contemporary enactments and general laws(Generalia specialibus non

derogant).77

For resolving the query with regard prohibition of lodgement of FIR is construed in

the mentioned supra bail application that expressions “Cognizance and Cognizable” are quite
69
Ibid. Section 5(2). The Gas Utility Court shall not take cognizance except written complaint by a person
authorised in this behalf by the company.
70
Muhammad Arsalan Ahmed v. State, 2017 P.Cr.L.J 434 Sindh.
71
an unreported(not approved for reporting) Criminal Petition No.907 of 2020 and Civil Petition No.1965 of
2020 (Against the order dated 08.06.2020 passed by the Lahore High Court Lahore in Crl. Misc. No. 74081-
B/2019 and W.P. No.51049 of 2019). available
at:https://www.supremecourt.gov.pk/downloads_judgements/crl.p._907_2020.pdf
72
2020 P.Cr.LJ 31
73
Note 24. Section 31.
74
Note 61.
75
Cr.PC-1898. Section 195, No Court Shall take cognizance, expect written complaint by the authority or by
any person on his behalf (a) prosecution of contempt section 193, 228.
76
Javed Iqbbl and others v. The State, 2016 SCMR 787.
77
Gulistan Bank Ltd and another v. Soneri Bank Ltd and another, 2018 CLC 203
distinct from the investigation as mentioned in section 154 and 157 CrPC.78 FIR is not

specifically barred by the Act,2016 hence would be presumed permissible.79 Therefore

lodgement of FIR by authority (Gas Utility company) may not be declared as illegal or to

have resulted in rendering the provision of section 5 of the Act as redundant.80

Lodging of FIR and investigation would not prejudice the legality of section 5(2) of

the Act. Purposely, reliance is upon the guiding principle of the case of Muhammad Nazir v.

Fazal Karim and others81 that taking cognizance of an offense by a court is a thing quite

distinct from the investigation of a reported offense by police or any other investigation

agency. Barr on taking cognizance does not place an embargo upon reporting the offense to

police, registration of an FIR, and conducting of an investigation.82

The ambiguity with regard word “Shall and except” is also interpreted in the light of

the supra mentioned case of Muhammad Nazir83 that “if provision of 195(i) Cr.PC places a

prohibition against taking cognizance of an offense by the court except in a given manner

then all prior steps taken before the stage of taking cognizance by a court could be deemed to

be permissible.84

Impliedly FIRs are being accepted valid in light of the interpretation of forgoing case

law,85 However, the flaw(s) and gap(s) are status quo prevailing so the Act-2016 is required

to be amended to make it adequate and consistent with the procedural law or to make it

efficient procedural cum substantive law.

78
Note 61.
79
Haji Fazal Elahi & Sons through Muhammad Tariq v. Bank of Punjab and others, 2004 CLD 162 Lahore.
80
Note 61.
81
Muhammad Nazir v. Fazal Karim, PLD 2012 SC 892.
82
Ibid.
83
Ibid.
84
Ibid.p.897
85
Note 61.
2.3 Legality of Investigation and Inquiry before Registration FIR

As Pakistan has inherited the adversarial model of the criminal justice system. 86 Thus,

therefore, investigation before FIR is held illegal and unjustified by the apex courts in the

case Lal Din v. SHO PS Dehli Gate, Multan87 and in the case of Jawed Ali Memon v. The
88
State that conducting investigation and inquiry before FIR, such FIR lost its evidentiary

value, the same view held by the Supreme Court of Pakistan in the famous case of Asia Bibi

v. State.89 In another case of Iftikhar Hussain and others v. state, 90 the same view was held

for pre-investigation and pre-inquiry of FIR. However, in gas theft cases, the Gas Theft

Intelligence Wing collect information secretly from the venue suspected of the offense

thereafter the technical metering wing section captures the equipment and material with a

joint raid with police sanctioned for Gas theft from the venue and estimate the theft gas under

UFG formula and prepares such report declaring statue of person suspect and the amount

estimated as loss and thereafter, FIR is being lodged at the concerned police station having

jurisdiction. The whole process and steps are being functioned irregularly without codified

laws. The Act has not provided any procedure pre or post FIR for investigation, inquiry.

2.4 Police and Prosecution

Provisionally police are supposed the only source to investigate the case preferably.

Similarly for the gas theft cases Government of Sindh Home Department exercising powers

86
Yoeurng Sotheara, Right To Fair And Effective Investigation In Pre-Trial: A Comparative Study Of
Cambodian And Indian Criminal Justice Systems, Faculty Of Law University Of Delhi Delhi-110007 May,
2014.p.1 available at: https://www.academia.edu/9803815/Right_to_Fair_and_Effective_Investigation_in_Pre-
trial_A_Comparative_Study_of_Cambodian_and_Indian_Criminal_Justice_Systems?auto=download
87
1997 MLD 246 Lahore HC
88
1985 P.Cr.LJ 1081 Lahore HC
89
Asia Bibi v. State, PLD 2019 SC 64.
90
Iftikhar Hussain and others v. The State, 2004 SCMR 1185
under Cr. P.C91 notified the SSG Police Stations in Karachi having with precinct over the

crime of the gas theft.92 For this purpose special Police were required to be sanctioned if

salaries of the sanctioned staff were to be provided by SSGC and SNGCL following guiding

principles issued by IGP Sindh.93

The whimsical attitude of the police is not behind the veil. Even after it is left on the

police department to sanction and depute staff for investigation of the gas theft cases.

Without proper training and expertise on the gas technicalities if wholly solely would be

depended on general police to investigate the case, definitely the cases would be spoiled in a

similar infamous manner.

For supervising the investigation and production of final reports before court

prosecution has an important role to perform. Prosecutors for gas theft cases must have dual

experience in the civil and criminal cases. Not only this but has expertise on the technicalities

rendered while investigation and is equipped with knowledge about tools and systems that

may come to court for assistance. However here, rather than establish an independent

prosecution department already recruited prosecutors were sanctioned on the excuse of

shortage for respective 27 districts for the Gas Utility Courts.94

Conclusion

The existing legal framework regulating the Gas Utility Courts does not adequately

address the important areas of detecting, investigating, and preventing theft of gas. This is

important because theft of gas has a material impact on consumers, companies, and the

people of the country in terms of cost and safety.95 The contemporary law has deficiency

91
Cr.PC 1898, Section 4(1)(s).
92
Government of Sindh Home Department Notification no.POL/HD/7-15/13, dated 18th June 2014.
93
Inspector General of Police Letter no.30051/AIGP/OPS-I(KAR-60)2013 dated 12-12-2013
94
Prosecutor General Sindh Criminal Prosecution Service Government of Sindh letter no. PGS/Pros/69-
47/20104753. Dated 23rd December 2017.
95
Note 82.
issues, courts have jurisdiction and cognizance issues, police have training issues, prosecutors

have shortage issues, the government has funds issues, gas companies have to lack research

on the subject issues. These issues rather than control theft issues have created the Act as an

issue full of queries.

Though apex courts have resolved the queries about cognizance, complaint, FIR, the

cognizable offense to some extent. However, the undeniable fact is that Act, 2016 itself is

contrary to its provision, like restricting a court from taking cognizance except on written

complaint by authority or his person on this behalf. Later, supporting para of Section 5 of the

Act to this instance that the proceeding before gas utility courts are recognized as criminal

proceeding under Section 193 and 228 Cr. P.C is once again the negation of registration of

FIR with supporting provision of section 6 of the Act specifically suggesting remedies for

complaint or civil suit. What the Act has provided a remedy against the theft is explicitly to

file a complaint.

Further, this argument has the support of the maximum “A communi observantia non

est recedendum” inclines that where a thing was provided to do in a particular manner, it had

to be done in that manner if not so done, the same would not be lawful. 96 Enlightened with

the maximum complaint is provided in a manner by the Act to remedy the theft offense.

While that complaint case is a summon case procedurally followed by the issuance of notices

and thereafter, bailable warrant and then non-bailable warrant if alleged accused evade the
97
process issued by court deliberately. Thus the complaint procedure is controversial with

section 24 of the Act.

To make the law efficiently appropriate, adequate it is recommended that the bar of

195 Cr. P.C mentioned in section 5(2) of the Act-2016 may be removed to bring consistency

96
Muhammad Siddique v. Noor Jehan, 1994 ALD 1680, see also Rafaqat Ali v. State 1999 P.Cr.L.J 924(c) and
Muhammad Aslam v. SHO PS Choochak, District Okara, 1999 P.Cr.L.J 713(b).
97
Sarwar and Iftikhar Ahmed v. The State, 2014 SCMR 1762
in it. Specifically a new section may be introduced with a schedule showing offenses bailable,

non-bailable, and compoundable, plea bargaining. (iii) Special inspectors having specialties

and expertise in gas technicalities may be preferred to recruit for investigation purposes. (iv)

Prosecutors having expertise in civil and criminal law with expertise on gas technicalities

may be appointed. (v) For domestic, industrial, and commercial consumers term criminal

breach of trust and criminal misappropriation may be introduced to prosecute them. (vi)

Damaging property may be charged as mischief and property stolen counted as a loss.
BIBLIOGRAPHY

A. Statutes
i. Constitution of Pakistan 1973.
ii. Pakistan Penal Code 1860.
iii. Criminal Procedure Code of 1898.
iv. Qanoon-e-Shahadat Order-1984
v. The Gas(theft control and recovery) Ordinance-2014.
vi. Gas theft control and recovery Act.
vii. Oil and Gas regulatory authority Ordinance 2002.

B. Case Laws
i. Ali v. Amir and 3 others PLD 1971 SC 124
ii. Rashid Ahmad v. The State PLD 1972 SC 271
iii. Shabbir Ahmad v. Mst. Kabir-un-Nisa and others PLD 1975 SC 58
iv. Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086
v. Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255
vi. Zaida Perveeen@GOoma and another v. The State.
vii. Gadoon Textile Mills v. Wapda, PLJ 1997 SC 739
viii. Muhammad Sadiq and others v. University of Sindh, PLD 1996 SC 182.
ix. Muhammad Arsalan Ahmed v. State, 2017 P.Cr.L.J 434 Sindh.
x. Javed Iqbal and others v. The State, 2016 SCMR 787.
xi. Gulistan Bank Ltd and another v. Soneri Bank Ltd and another, 2018 CLC 203.
xii. Haji Fazal Elahi & Sons through Muhammad Tariq v. Bank of Punjab and others, 2004
CLD 162 Lahore.
xiii. Muhammad Nazir v. Fazal Karim, PLD 2012 SC 892.
xiv. Lal Din v. SHO PS Dehli Gate, Multan, 1997 MLD 246 Lahore.
xv. Jawed Ali Memon v. The State, 1985 P.Cr.LJ 1081 Lahore.
xvi. Asia Bibi v. State, PLD 2019 SC 64.
xvii. Iftikhar Hussain and others v. The State, 2004 SCMR 1185.
xviii. Muhammad Siddique v. Noor Jehan, 1994 ALD 1680,
xix. Rafaqat Ali v. State 1999 P.Cr.L.J 924(c)
xx. Muhammad Aslam v. SHO PS Choochak, District Okara, 1999 P.Cr.L.J 713(b).
xxi. Sarwar and Iftikhar Ahmed v. The State, 2014 SCMR 1762.
xxii. Muhammad Akram v. The State, 2020 P.Cr.L J 31
C. Notifications
i. Government of Sindh Home Department Notification no.POL/HD/7-15/13, dated 18th
June 2014.
ii. Inspector-General of Police Letter no.30051/AIGP/OPS-I(KAR-60)2013 dated 12-12-
2013.
iii. Prosecutor General Sindh Criminal Prosecution Service Government of Sindh letter no.
PGS/Pros/69-47/20104753. Dated 23rd December 2017.
iv. Registrar of the High Court Sindh Karachi letter, No.Gaz/Estb/Gas Utility Courts,
Dated:28-03-2017, available at
http://districtcourtwest.gos.pk/images/Notifications_images/1/95.pdf

D. Book
i. The year book-2015-16, Government of Pakistan Ministry of Parliamentary affairs
Islamabad.

E. Journal Articles
i. Touhidi, S.R.R., and I. Davoudi, Spatial Analysis Applied for Gas Theft Modelling in
Tabriz City, Iran. Journal of Geoscience and Environment Protection, vol.1, no.6, 2nd
February 2018,p.1-19. Available at: https://doi.org/10.4236/gep.2018.62001

ii. Masoor, A. (2013) Pakistan’s Gas Crisis due to Gas Theft & Unaccounted for Gas
(UFG). International Journal of Renewable Energy Technology Research, 2, 53-58.

F. Blogs
i. Syed Imran Ahmad, The menace of gas theft, Business Recorder, 27th April 2019,
available at https://iportal.riphah.edu.pk/newspaper/the-menace-of-gas-theft/.

G. Online Articles
i. Yoeurng Sotheara, Right To Fair And Effective Investigation In Pre-Trial: A Comparative
Study Of Cambodian And Indian Criminal Justice Systems, Faculty Of Law University Of
Delhi Delhi-110007 May, 2014.p.1 available at
https://www.academia.edu/9803815/Right_to_Fair_and_Effective_Investigation_in_Pre-
trial_A_Comparative_Study_of_Cambodian_and_Indian_Criminal_Justice_Systems?auto
=download

ii. Michael Lacewing, Morality as the social contract, Routledge,p.1


http://cw.routledge.com/textbooks/alevelphilosophy/data/AS/WhyShouldIbeMoral/Moralit
yasasocialcontract.pdf
iii. Norton Tooby, Law of offenses, Matter of Grazley, 14 I. & N. Dec. 330, 333 (BIA
1973)https://nortontooby.com/content/crime-moral-turpitude-theft-defined

F. Others
a. Newspapers
i. Special Police Stations to be established across Pakistan for UFG,16 January 2019,
https://timesofislamabad.com/16-Jan-2019/special-police-stations-to-be-established-
across-pakistan-for-ufg

ii. Court announces first-ever conviction in the gas theft case, available at
https://www.thenews.com.pk/print/318115-court-announces-first-ever-conviction-in-
gas-theft-case (accessed on 25-10-2019)

iii. Gas thief gets sentence under the Gas Act 2016, available at:https://nation.com.pk/18-
May-2018/gas-thief-gets-sentence-under-gas-act-2016

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