Hasan Yar Barki Vs Haseeb Ullah Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Criminal Appeal No.22-D/2025

Hassan Yar Barki Vs.

Haseeb Ullah Khan

For Appellant: Muhmmad Rizwan Khan Advocate For respondent: Mr. Ahmad Abu Hanifa Gandapur Assistant Advocate General.

Date of hearing 04.09.2025

JUDGMENT

INAM ULLAH KHAN, J.- Hassan Yar Barki, the appellant, has preferred this appeal against the Order/Judgment dated 25.02.2025, vide which he was convicted and sentenced to 20 days rigorous imprisonment with fine of Rs.20,000/- or in default thereof to undergo seven days S.I. by the learned Judge Consumer Protection Court, D.I.Khan, in connection with a complaint filed by respondent under Section 11(b)(2) of Khyber Pakhtunkhwa Consumer Protection Act, 1997.

2.The facts forming the factual canvas of the instant appeal are that the respondent, in the capacity of Assistant

Director Consumer Rights Protection Council, D.I.Khan, filed a complaint against appellant within the purview of Section 11(b)(2) of Khyber Pakhtunkhwa Consumer Protection Act, 1997 (the Act of 1997), complaining illegal operation, without any permit/license, of a Diesel Agency. The appellant, on appearing before the learned Judge Consumer Court, pleaded his guilt, as a result he was convicted and sentenced under the provisions of Section 16(1) of the Act-1997. Aggrieved of his conviction and sentence, the appellant has preferred the instant appeal.

3.Arguments heard and record perused.

4.The perusal of record shows that the respondent lodged a complaint against appellant with the following main allegations:

1.That the undersigned, while exercising powers under Section 11(b) of the Consumer Protection Act (CPA), 1997, inspected the diesel agency operated by the respondent, Sultan Diesel Agency bypass road near Mufti Mehmood Chowk, Dera Ismail Khan.

2.That the diesel agency is an illegal business in all aspects, operating without compliance with regulatory requirements

of legal standards for the sale and distribution of fuel.

3.That despite the issuance of notices to the respondent, there has been no effort made to comply with legal obligations or to obtain the required permits and licenses, showing a blatant disregard for law.

4.That the illegal activities carried out at the diesel agency pose a significant risk to public safety and consumer protection, with operations being conducted without proper oversight, precautionary measures, or adherence to safety protocols.

5.The counterfoil of notice issued by the respondent, available on the file of trial court, reveals that the appellant was blamed for less measurement, sub-standards products, etc including sale of diesel without any documentation.

"اطلسن ڈزیل ایسنجی وج ہک ریغب یسک اکذغات ےک ڈزیل یک رخدیورفوتخںیمومعقرکراہےہوجہکیسکاقوننےکتحت "ریغاقونین۔

6.Now, in the light of objection raised during arguments by the learned counsel representing appellant that it is an Oil Agency for the storage and sale of non- dangerous petroleum, the question before this Court is to determine the authority and domain of the respondent and that of the Consumer Protection Court, under the peculiar

circumstances of this case, where allegations for the sale of Diesel have been levelled against appellant. In this regard the, purpose of the Act of 1997 is expounded through its preamble which reads as under;

WHEREAS it is expedient to provide for healthy growth of fair commercial practices, the promotion and protection of legitimate interests of consumers and speedy redressal of their complaints and matters arising out of or connected therewith.

7.The Act of 1997 has been promulgated to provide for promotion and protection of the interest of consumers and providing a mechanism for the speedy redressal of their complaints. The act aims to ensure that consumers receive goods and services of the quality, quantity, and specifications promised to them and to hold sellers and service providers accountable for defects and other malpractices. Section 11B of the Act of 1997 empowers the Director Consumer Protection Council or his delegate to file a complaint, in view of the general standard of that service or product. However, in this particular case the appellant was charged for selling sub-standard Diesel at high rates and with less measurement without license.

8.The enactments governing the storage, sale and measurement etc of the Petroleum including Diesel, are the Petroleum Act, 1934 (Act-1934) with Petroleum Rules, 1937 (Rules-1937) and Oil and Gas Regulatory Authority Ordinance, 2002, (Ordinance) with Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016 (Rule-2016).

9.The Petroleum Act, 1934, classifies the Petroleum Products into different classes according to its flashpoint.

Certain necessary definitions, outlined in Section 2 of the Act-1934 are reproduced below for ready reference:

(b)“petroleum class A” means petroleum having flashpoint below twenty-four degrees centigrade;

(ba)“petroleum class B” means petroleum having flashpoint of twenty-four degrees centigrade and above, but below fifty-five degrees centigrade;

(bb)“petroleum class C” means petroleum having flashpoint of fifty-five degrees centigrade and above, but below ninety-three degrees centigrade;

(bc)“excluded petroleum” means petroleum having flashpoint of

ninety-three degrees centigrade and above;

(c)“flashing-point” of any petroleum means the lowest temperature at which it yields a vapour which will give a momentary flash when ignited, determined in accordance with the provisions of Chapter II and the rules made thereunder:

10.Yet there is another class of Petroleum. defined in clause (e) of Rule 3 of the Rules-1937, i.e. “Heavy Petroleum” which means petroleum which has its flashing-point not below 130 ګF or 54 ګC. Prior to promulgation of Petroleum (Amendment) Act 2023, the terms “dangerous petroleum” and “non-dangerous petroleum” were used in the Act-1934 but in the Amendment Act 2023 the term ‘dangerous petroleum’ was substituted with the term ‘Petroleum Class-A’ whereas, ‘non-dangerous petroleum’ was replaced with the term ‘Petroleum Class-B’. According to Section 7 of the Act- 1934, “a person need not obtain a license for the transport or storage of petroleum class B if the total quantity in his possession at any one place does not exceed two thousand liters and none of it is contained in a receptacle exceeding eight hundred liters in capacity”. Section 8 of the Act, deals in storage of Petroleum Class-A, not intended for sale if

the total quantity does not exceed 30 liters. Section 11 of the Act exempts the ‘excluded petroleum’ from the operation of this Act. The Chapter-II of the Act provides the procedure for Testing of Petroleum and Testing Officers have been listed in Section 17. The Act of 1934 does not recognize the Consumer Protection Council or its any Director or authority to be a testing officer. Section 17 reads as under:

17.Testing officers. (1) The Secretary of the Division concerned may authorise any officer by name or by virtue of office to test petroleum of which samples have been taken under this Act, or which may have been submitted to him for test by any person, and to grant certificates of the results of such tests.

(2)the following testing officers may be authorized under sub- section (1), namely;__

a. Director General, Director, Deputy Director, and Assistant Director of the Department of Explosives

b. Chemical Examiner, Customs House, Karachi, and

c. Chemical Examiner, Customs House, Lahore.

11.The Consumer Protection Council or any of its authority or official are having no powers to test the nature, flashing-point, class, quality etc of petroleum.

Similarly, per provisions of Section 15 of the Act-1934 Consumer Protection Council does not have the authority to retain the Standard Test Apparatus to determine the flashing point of petroleum as such an authority vested in the Secretary of the Division concerned. Thus, respondent was having no powers and jurisdiction to test the quality or standards of the petroleum products being sold by the appellant. Additionally, there is absolutely no evidence or any other proof to suggest that the appellant was actually selling the High-Speed Diesel (HSD) or he was dealing in excluded petroleum or non-dangerous petroleum. Thus, by levelling the allegations of selling sub-standard Diesel or HSD, the respondent has exceeded beyond his official authority and illegally entered into the domain of Petroleum Act, 1934.

12.Besides, the grant of license or permit to store petroleum and its checking fall within the framework of Petroleum Rules 1937. Rule 115 of the Rules-1937 deal with issuance of license of all types, which read as under:

115.Grant of licence. (1) Licences for importation, transportation and storage may be granted by the licensing authorities set forth in Schedule I in the forms, for the purpose, and on payment of the fees specified therein.

(2)A licence in Form H may be granted in such period as the licensing authority may deem necessary subject to a maximum of twelve months. Every other licence granted under these rules shall, unless renewed under rule 119, remain in force until the 31st day of December of the year for which the licence is granted.

(2-A) Notwithstanding anything contained in sub-rule (2), the licensing authority may, if it is satisfied that a licence is required for specific work of national importance and for a short period, grant a licence for a period not exceeding three months but not extending beyond the 31st December, following the date on which the licence is granted:

Provided that an Inspector of Explosives shall not grant such a licence without the concurrence of the Chief Inspector if a certificate is not obtained from the District Authority under sub-rule (3); and

(3)Where the licensing authority is the Chief Inspector or an Inspector of Explosives an applicant for a new licence may apply to the District Authority for a certificate to the effect that there is no objection to the applicant receiving a licence

for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant who may forward it to the Chief Inspector or an Inspector of Explosives with his application in Form D

(4)The Chief Inspector may refer an application not accompanied by a certificate granted under sub-rule (3), to the District Authority for his observations.

(5)If the District Authority, either on a reference being made to him or otherwise, intimates to the Chief Inspector that any licence which has been applied for, should not in his opinion be granted, such licence shall not be issued without the sanction of the Federal Government.

(6)No licence in Form H shall be granted except to a person holding a licence in Form I.

(7)In the case of a licence granted for storage one copy of the plan or plans of the storage premises signed in token of approval by the licensing authority shall be attached to the licence and one copy shall be filed for record in the office of the licensing authority.

(10)For installation of a stand- alone CNG station at raw sites or new locations, NOCs from the following authorities shall be required, namely:—

(a)Gas Utility Company;

(b)Civil Defence; and

(c)Tehsil Municipal Officer.

(11)The permission for construction and installation of CNG station along with plan approval shall be granted by Chief Inspector of Explosives under the Petroleum Act, 1934 (XXX of 1934) and the Explosives Act, 1884 (IV of 1884).

(12)All authorities concerned for the issuance of permission or NOCs of licenses or otherwise shall decide the case within one month of the receipt of the request for installation of a CNG station.

13.In view of the above Rule, the types of licenses have been defined in Schedule-I and its Article 3 pertains to Form “J”. The relevant excerpt from Schedule-I of the Rules, 1937, runs as under:

Article Form of Purpose for which Authority No. License granted Empowered See Schedule to Grant

(II)License

3 J To store non- The District dangerous Authority petroleum otherwise than in bulk, in quantity not exceeding 5000 gallons.

14.In the same place, as mentioned above, sections 7 & 8 of the Petroleum Act, 1934, provide some relaxation for the storge of petroleum without having any license. The purpose for the grant of license under Form-J and Section

7 ibid are self-contained, and same authorise a person to keep without license petroleum Class-B (non-dangerous petroleum) not exceeding 2000 litres and license Form-J is needed from a District Authority for the storage of same up-to 5000 gallons non-dangerous petroleum. Thus, there remains no doubt that the issuance of license in the Form- J falls within the exclusive domain of District Authority, as defined in the sub-rule (d) of Rule-3 Rules, 1937, and there is no role of the Consumer Protection Council to check the quantity of any non-dangerous petroleum in a storage or to require any license or permit from such storage.

15.Apart from the scope of Petroleum Act, 1934, which is limited to the physical control of petroleum, including its import, transport, and storage, the OGRA Ordinance 2002 and Rules framed thereunder, operate comprehensively, covering a wide range of regulated activities for oil, natural gas, LNG, and LPG. The Ordinance regulates everything from construction of pipelines and storage facilities to the distribution and marketing of products. Clause xiii, xiv of sub-Rule (1) of Rule-2 of the Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016

(Rule-2016), framed under Section 41 of the Ordinance- 2002, define the laboratory and oil testing facility as under:

(xiii)‘Laboratory’ means a laboratory, approved by the Authority for testing of crude oil, petroleum products, lubricating oil and greases:

(xvi)‘Oil Testing Facility’ means laboratory, howsoever called, designated or designed, primarily and substantially engaged for or run on commercial basis for the testing of oil to determine its quality, contents and components;

16.Part-X of the Rules 2016 deals with miscellaneous matters including entry and inspections of any promises, facility or installation owned or operated by an oil marketing company, refinery, blending plant, reclamation plant or grease plant. Rule 54 recognises the Deputy Commissioner or any other person authorised in writing by the Authority, and all members of the Authority to be the Inspection Officer. Such powers have not been conferred upon the Consumer Protection Council. The entry of respondent in the premises of appellant, checking of storage, determining the quality on the basis of self- assumptions, and filing complaint are illegal acts in view

of the provisions of ibid Rules of 1934 and 2016. Besides, the Ordinance as well as Rules of 2016 being special enactment and latest law, shall prevail over the Khyber Pakhtunkhwa Consumer Protection Act, 1997. Even otherwise, the Consumer Protection Act, 1997, does not override the provisions and scope of the Petroleum Act, 1934, and Petroleum Rules 1937, which deal in import, transport, and storage of petroleum and other flammable substances.

17.As corollary to the above, the Director Consumer Protection Council or his delegate is not a Testing Office and not in possession of Standard Testing Apparatus, nor he is Inspection Officer to get the sample and test it through any testing facility or laboratory. Director Consumer Protection or his delegate also lacking the authority to enter and check the storage of non-dangerous petroleum in the Oil Agency of appellant particularly, when he is legally competent to store 2000 litres Class-B (non-dangerous) petroleum as well as excluded petroleum without license. Only the District Authority i.e. Deputy Commissioner under the Rules of 1937 or under Rule 54 of the Rules 2016, if authorised by the OGRA, are having all such powers. In-fact, the respondent has stepped into

the domain of Deputy Commissioner which cannot be sustained legally. I, therefore, while allowing this appeal, set aside the order dated 25.02.2025 of the Consumer Court, and dismiss the complaint. The appellant shall, also be entitled for the refund of amount of fine.

Announced.

(*M/Subhan) Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Inam Ullah Khan