Chief Engineer FESCO etc Vs Falak Sher

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.26838 of 2022

FESCO through its Chief Engineer, FESCO, Faisalabad & others Versus

Falak Sher

JUDGMENT

Date of hearing: 07.05.2026.

Petitioners by: Mian Muhammad Javaid, Advocate.

Respondent ex parte.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through instant revision petition, the petitioner-FESCO has called in question the legality and propriety of the judgments and decrees dated 12.03.2021 and 09.12.2021, passed by the learned Civil Judge and Additional District Judge, Chiniot, respectively, whereby the suit filed by the respondent for declaration and permanent injunction was decreed and the appeal preferred by the petitioner-FESCO was dismissed.

2.Briefly stated, the respondent/plaintiff instituted a suit for declaration with consequential relief of permanent injunction, challenging an electricity detection bill amounting to Rs.1,83,305/- issued against his electricity connection bearing Reference No.29 13162 3060500. The respondent asserted that the disputed bill was illegal, arbitrary, unsupported by actual consumption, and ineffective upon his rights. The petitioners/defendants contested the suit by filing written statement wherein it was pleaded that the respondent was using electricity through “unfair means” and that the disputed amount had lawfully been charged on account of such irregularity. After framing of issues and recording of evidence, the learned Trial Court decreed the suit vide judgment dated 12.03.2021. The appeal preferred by the

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petitioners was dismissed by the learned Appellate Court vide judgment dated 09.12.2021. Hence, this revision petition.

3.The foremost contention raised on behalf of the petitioners is that both the learned Courts below have misread and misappreciated the evidence and have failed to correctly apply the statutory framework governing electricity theft and detection billing. Learned counsel for petitioners argues that the case squarely falls within the category of dishonest abstraction of electricity, and therefore the Civil Court lacked jurisdiction to entertain the dispute. In support of this submission, strong reliance has been placed upon the judgment of the Hon’ble Supreme Court reported as WATER AND POWER DEVELOPMENT AUTHORITY and others v. Messrs KAMAL FOOD (PVT.) LTD. OKARA and others (PLD 2012 Supreme Court 371), contending that where electricity is allegedly stolen through manipulation or bypassing of metering system, the dispute falls outside the scope of Section 26(6) of the Electricity Act, 1910, and ought to be dealt with under Section 26-A, thereby excluding the jurisdiction of the Civil Court.

4.The core controversy involved in the present matter is whether the disputed detection bill amounting to Rs.1,83,305/- was lawfully raised in accordance with the governing statutory framework or whether the same was arbitrary, procedurally defective, and unsupported by legally admissible evidence. In resolving this controversy, it is equally necessary to determine the true nature of the allegation forming the basis of the impugned detection proceedings, namely, whether the matter pertains to the correctness, functioning, manipulation, or tampering of metering equipment falling within the contemplation of Section 26(6) of the Electricity Act, 1910, or whether it concerns dishonest abstraction of electricity through means independent of the metering system, such as direct hooking, bypassing, or illegal supply arrangements ordinarily governed by Section 26-A of the Act. This distinction is not merely semantic; rather, it goes to the very root of the jurisdictional competence of the forum and the legal validity of the detection proceedings. Both the learned Courts below concurrently returned findings against the petitioners after a detailed

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appraisal of the evidentiary record, and no compelling ground has been demonstrated before this Court to dislodge such concurrent conclusions.

5.A careful scrutiny of the record reveals that the petitioners failed to maintain a consistent, coherent, and legally sustainable factual stance regarding the very foundation, nature, and period of the alleged liability. In the written statement, the case set up was that the disputed amount related to electricity charges for the months of December 2014, February 2015, and March 2015. However, during cross-examination, DW-1 materially deviated from this pleaded position and stated that the detection bill pertained to the period May 2010 to July 2010, whereas documentary exhibit Exh.D-1 reflects yet another entirely different period, namely May 2011 to July 2011. These are not minor inconsistencies capable of being ignored as ordinary discrepancies; rather, they strike at the very substratum of the petitioners’ case and render the entire detection exercise inherently doubtful and unreliable. The learned Trial Court rightly observed that the testimony of DW-1 was inconsistent not only inter se but also vis-à-vis the departmental record produced by the petitioners themselves, thereby substantially eroding the credibility of the detection proceedings.

6.It is equally significant that the petitioners failed to plead with the degree of clarity, precision, and specificity required by law, the exact nature of the alleged misconduct attributed to the respondent. The written statement contains only a vague and omnibus allegation of use of “unfair means” without disclosing whether the accusation pertained to direct hooking, bypassing of the metering apparatus, tampering with the meter, manipulation of recording mechanism, interference with the Anti-Theft Box, or any other recognised mode of dishonest abstraction. This omission assumes decisive legal significance because the statutory scheme, as interpreted authoritatively by the Hon’ble Supreme Court in Messrs KAMAL FOOD supra, draws a clear and substantive distinction between disputes involving the correctness or functioning of metering equipment and cases involving independent abstraction of electricity through direct supply or bypass arrangements. Subsequently, during

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evidence, DW-1 attempted to improve the case by introducing the allegation of direct supply. Such a material departure from pleadings cannot be treated lightly. It is a settled principle of law that evidence beyond pleadings cannot be relied upon to cure foundational defects in a party’s case, and improvements introduced at the stage of evidence carry little, if any, evidentiary value. Reliance, in this regard, is placed upon Muhammad Arif Tarar and another v. Matloob Ahmad Warraich and others (PLD 2025 Supreme Court 691), wherein the august Supreme Court reiterated the said principle in the following terms:

“5. Additionally, as held in Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others (2015 SCMR 1698), pleadings frame the boundaries of a party's case and the parties are bound to lead evidence in line with them. A party is not permitted to go beyond its pleadings and cannot lead or rely upon evidence that is inconsistent with what has been pleaded; even if such evidence is brought on record, it must be ignored.”

7.The learned Trial Court further took note of the fact that Exh.D- 1 itself indicated that the meter was allegedly found burnt. This finding assumes particular legal significance and requires careful examination in the context of the jurisdictional framework laid down in Messrs KAMAL FOOD supra. It may prima facie appear that a burnt meter introduces a technical dimension relatable to the condition, functioning, and operational integrity of the metering equipment, thereby potentially attracting the domain of Section 26(6) of the Electricity Act, 1910. However, it must be clearly understood that the mere presence of a reference to a burnt meter in the departmental record does not, by itself and without more, automatically engage the jurisdictional bar under Section 26(6) or confer upon the detection proceedings the character of a lawfully conducted technical inquiry. For the jurisdictional protection of Section 26(6) to operate in favour of a licensee, it is a necessary prerequisite that the licensee must first establish through consistent pleadings, credible ocular and technical evidence, and demonstrable procedural compliance that the condition of the metering equipment was attributable to deliberate consumer misconduct and that the entire detection exercise was conducted

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lawfully in accordance with the mandatory statutory and regulatory framework governing such proceedings. In the present case, the petitioners signally failed to satisfy any of these prerequisites. The written statement contained no pleading whatsoever regarding the burnt condition of the meter or its causal connection to any alleged irregularity on the part of the respondent. The burnt meter surfaced for the first time through Exh.D-1 without any supporting technical report, expert opinion, or contemporaneous inspection material establishing the nexus between the burnt condition and the alleged dishonest abstraction. Moreover, the petitioners maintained contradictory and mutually inconsistent positions throughout the proceedings, alleging "unfair means" in the written statement, introducing "direct supply" during evidence, and now seeking to rely upon the burnt meter condition as a jurisdictional anchor, thereby rendering it impossible for this Court to definitively characterise the dispute as one falling squarely within Section 26(6). It is a well settled principle that a party cannot be permitted to selectively invoke the jurisdictional protection of a statutory provision without first establishing, through consistent and credible material, a factual foundation bringing the case squarely within the letter and spirit of that provision. A licensee that has failed to plead, prove, and procedurally comply with the requirements of Section 26(6) cannot subsequently seek shelter behind the jurisdictional bar flowing therefrom. Furthermore, no FIR was lodged, no criminal proceedings were initiated, no check meter was installed, no independent technical verification was produced, and no corroborative material was brought on record demonstrating the manner in which the burnt condition of the meter affected the recording of consumption or facilitated abstraction of electricity. These cumulative omissions, going to the root of both the evidentiary foundation and the procedural validity of the detection proceedings, rendered the impugned action legally unsustainable regardless of the ultimate categorisation of the case under Section 26(6) or Section 26- A. It follows that even applying the principles enunciated in Messrs KAMAL FOOD supra in their true perspective, no jurisdictional bar can be inferred in favour of a licensee that has itself failed to establish

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the factual and procedural prerequisites upon which such bar is conditioned.

8.Allegations of dishonest abstraction of electricity carry not only serious financial consequences but also potential penal implications affecting the civil rights, commercial standing, and legal exposure of a consumer. Such allegations, therefore, cannot be sustained on the basis of vague suspicion, departmental assumptions, or unverified internal notings. The distribution licensee, being the party asserting illegality and seeking to fasten civil liability upon the consumer, bears the burden to establish through cogent, reliable, and legally admissible evidence both the precise nature of the alleged irregularity and the lawful manner in which the liability has been assessed. Mere invocation of expressions such as “unfair means,” “theft,” or “direct supply” is insufficient unless supported by clear pleadings, technical material, contemporaneous inspection evidence, and demonstrable compliance with the statutory and regulatory safeguards governing detection proceedings.

9.It is also pertinent to observe that the distribution licensee's authority to conduct detection proceedings and raise detection bills does not derive from any unfettered administrative discretion but flows from a closely regulated statutory and regulatory framework. Pursuant to Section 21 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, read with Rule 9 of the NEPRA Licensing (Distribution) Rules, 1999, the Consumer Service Manual has been framed and notified, prescribing in detail the procedure governing detection and billing in cases of alleged theft or illegal abstraction of electricity. Chapter 9 of the Consumer Service Manual, which governs detection proceedings, lays down a mandatory sequential mechanism that must be strictly followed before civil or penal liability can lawfully be fastened upon a consumer. This mechanism includes, amongst others, the following indispensable requirements: first, that the inspection must be conducted by an authorised official who must personally visit the premises and prepare a contemporaneous inspection report; second, that the metering equipment, Anti-Theft Box, and associated apparatus must be

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examined, sealed, and preserved in accordance with prescribed procedure to maintain evidentiary integrity; third, that where the meter is found in a defective, damaged, or burnt condition, independent technical verification through a qualified official must be conducted and a technical report prepared establishing the causal nexus between the condition of the equipment and any alleged irregularity; fourth, that a check meter must be installed where required to independently verify consumption; fifth, that a prior show-cause notice must be served upon the consumer disclosing the precise nature of the alleged irregularity, the basis of assessment, and the period of alleged abstraction; and sixth, that the consumer must be afforded a genuine and meaningful opportunity to file a reply and make representation before the detection bill is finalised. These requirements are not procedural technicalities capable of being waived or selectively complied with at the convenience of the licensee. Rather, they constitute mandatory statutory and regulatory safeguards embodying the principles of due process, natural justice, and transparency that must precede any lawful imposition of detection liability upon a consumer. In the present case, the petitioners failed to establish compliance with any of these foundational procedural requirements. No authorised official was produced who could testify to having personally conducted the inspection. No contemporaneous inspection report prepared at the time of the alleged detection was proved on record. No technical report was produced establishing the causal connection between the burnt condition of the meter and any alleged dishonest abstraction by the respondent. No check meter was installed or its installation established through evidence. No show-cause notice disclosing the precise nature of the alleged irregularity and the basis of assessment was produced before the Court. No evidence was brought on record demonstrating that the respondent was afforded any meaningful opportunity to respond before the impugned detection bill was raised and communicated. Admittedly, no FIR was registered and no criminal proceedings were initiated, notwithstanding that the allegation of dishonest abstraction carries penal implications under the applicable law. These are not isolated or minor lapses; taken cumulatively, they

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represent a wholesale failure to comply with the mandatory procedural architecture governing detection proceedings. In such circumstances, the detection proceedings lacked the procedural sanctity required by law and were rightly treated by both the learned Courts below as legally deficient and evidentially unreliable. A detection bill raised in wholesale disregard of the mandatory procedure prescribed by the Consumer Service Manual and the governing statutory framework cannot be permitted to stand, regardless of the ultimate merits of the underlying allegation.

10.A distribution licensee cannot simultaneously rely upon allegations relating to the condition, functioning, or integrity of metering equipment so as to invoke the statutory framework applicable to theft detection, while at the same time avoiding the procedural and technical safeguards mandated by law for establishing such allegations. The statutory power to raise detection bills is inseparably coupled with the obligation to establish the alleged irregularity through lawful procedure, credible technical evidence, and procedural fairness. Failure to satisfy these foundational requirements renders the detection proceedings legally unsustainable.

11.The procedural safeguards incorporated in the Consumer Service Manual and the governing statutory framework are not empty formalities devised for departmental convenience; rather, they embody substantive guarantees flowing from the principles of due process, fairness, transparency, and accountability in public administration. Where a public utility, wielding statutory authority and monopolistic control over an essential service, seeks to accuse a consumer of dishonest conduct and impose substantial civil or penal consequences, strict adherence to the prescribed procedure becomes indispensable. Any casual, selective, or inconsistent departure from such mandatory safeguards strikes at the root of lawful exercise of authority and renders the resulting action vulnerable to judicial scrutiny.

12.It is by now well settled that exclusion of the jurisdiction of Civil Courts is not to be readily inferred and that even where a statute creates a special forum, actions taken in violation of statutory provisions, in excess of jurisdiction, mala fide, or in breach of

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principles of natural justice remain amenable to challenge before the Civil Court. Reliance is placed upon the decision of august Supreme Court rendered in Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others (PLD 1997 Supreme Court 3), where principle of exclusion of jurisdiction of civil court was expounded by the august Court in the following terms:

“The Civil Court 'under section 9 of the Code of Civil Procedure are competent to try all- suits of civil nature except those for which their jurisdiction is barred either expressly or by necessary implication. It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide;

(c)that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court.”

13.Another highly material aspect is the failure of the petitioners to produce the Meter Inspector or the official who allegedly conducted the inspection and prepared the detection proceedings. Both DW-1 and DW- 2 candidly conceded during cross-examination that they neither visited the site nor personally witnessed the alleged abstraction and that their testimony was based entirely upon office record. In matters involving allegations of tampering, manipulation, bypassing, or dishonest abstraction of electricity, the best and most direct evidence ordinarily

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consists of the testimony of the inspecting officials coupled with contemporaneous technical material demonstrating the precise nature and mode of the alleged irregularity. The withholding of such crucial evidence, without any plausible explanation, justified the learned Courts below in drawing an adverse inference against the petitioners in accordance with settled principles of evidence. The entire case of the petitioners thus rested upon hearsay assertions unsupported by primary technical evidence or competent ocular testimony. Principle of adverse inference was elaborated by the august Supreme Court in Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21), in the following manner:

“9. At this juncture Article 129 of the Qanun-e-Shahadat Order 1984 is quite relevant under which court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. According to the illustrations highlighted for resonating the presumption, Illustration (g) is quite relevant which illuminates "that evidence which could be and is not produced would, if produced, be un-favourable to the person who withholds it". Adverse inference for non-production of evidence is one of the strongest presumptions known to law and the law allows it against the party who withholds the evidence. Regardless of the presence of important witnesses (the alleged donor) and the alleged witness of the mutation, the defendant failed to produce them despite framing of specific issue whether there was no transaction of sale but a gift.”

14.The contention regarding ouster of jurisdiction of the Civil Court has been examined in the light of the statutory scheme as well as the reliance placed by the petitioners upon Messrs KAMAL FOOD supra. A careful reading of the said judgment reveals that the Hon’ble Supreme Court delineated the jurisdictional contours between Sections 26(6) and 26-A of the Electricity Act, 1910. The judgment recognises that disputes relating to correctness, speed, functioning, manipulation, or tampering of metering equipment fall within the domain of Section 26(6), particularly where determination of liability requires technical examination of the meter or related measuring apparatus by the Electric Inspector possessing specialised expertise in such matters. Conversely, where the allegation pertains to dishonest abstraction of electricity through direct hooking, bypassing of the metering system, or illegal supply arrangements independent of the meter, the matter

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ordinarily falls within Section 26-A and outside the jurisdiction of the Electric Inspector. The true test, therefore, is not the mere nomenclature employed by the licensee, such as “theft” or “unfair means,” but the actual factual foundation and technical character of the allegation itself.

15.The ratio of Messrs KAMAL FOOD supra, however, is confined to the delineation of jurisdiction between statutory forums constituted under the Electricity Act and does not lay down any inflexible or absolute bar upon the jurisdiction of Civil Courts under Section 9, C.P.C. Exclusion of Civil Court jurisdiction is never to be readily inferred unless such exclusion is either expressly provided or necessarily implied. Even otherwise, where the grievance extends beyond mere quantification of consumption or classification of alleged theft and directly assails the legality, procedural regularity, evidentiary validity, and lawful foundation of the entire detection exercise, the jurisdiction of the Civil Court cannot be considered automatically excluded. The said judgment nowhere curtails the authority of Civil Courts to examine whether the impugned action of the licensee conforms to mandatory legal requirements, rests upon credible and legally admissible evidence, and has been undertaken in accordance with due process of law.

In the present case, the challenge raised by the respondent is not confined to a technical dispute regarding meter accuracy or tariff assessment. Rather, the respondent has questioned the very legality and evidentiary credibility of the detection proceedings themselves. The petitioners failed to establish through cogent, reliable, and consistent evidence whether the case pertained to alleged tampering or malfunctioning of metering equipment or to independent dishonest abstraction through direct supply or bypassing. The record is replete with contradictions, material omissions, vague pleadings, absence of technical evidence, and non-compliance with mandatory procedural safeguards. In such circumstances, the dispute clearly transcends the limited statutory framework contemplated under Sections 26(6) and 26-A of the Electricity Act. Therefore, even if the principles enunciated in Messrs KAMAL FOOD supra are applied in their true

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perspective, the same do not operate to oust the jurisdiction of the Civil Court in a case where the impugned action is assailed on grounds of procedural illegality, evidentiary insufficiency, absence of lawful foundation, and failure to establish the precise nature of the alleged misconduct in accordance with law.

16.It must also be observed that exclusion of the jurisdiction of Civil Courts cannot be inferred merely because a statute creates specialised forums or confers powers upon departmental authorities. The jurisdiction preserved under Section 9, C.P.C. constitutes a foundational feature of the civil justice system and remains available wherever the impugned action is alleged to be without lawful authority, procedurally defective, mala fide, unsupported by evidence, or violative of principles of natural justice. The distinction between exclusion of jurisdiction in matters requiring technical determination and the maintainability of a civil action challenging the very legality and procedural validity of the impugned proceedings must be carefully preserved to prevent statutory powers from degenerating into unreviewable administrative discretion.

17.The learned Appellate Court independently reappraised the entire evidentiary record and concurred with the findings recorded by the learned Trial Court. It specifically highlighted the contradictions in the petitioners' stance regarding the nature and period of the alleged liability, the absence of clear and specific pleadings disclosing the precise mode of alleged abstraction, the failure to produce the Meter Inspector or any official who had personally conducted the inspection, and the non-establishment of lawful detection in accordance with mandatory statutory and regulatory requirements. The concurrent findings of both the learned Courts below thus rest upon a thorough and independent appreciation of the evidentiary material, sound judicial reasoning, and correct application of the governing legal principles.

It is well settled that concurrent findings of two Courts on questions of fact occupy a position of particular sanctity in revisional jurisdiction and are ordinarily binding upon the revisional court unless the party seeking interference demonstrates that such findings are

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perverse, arbitrary, based upon misreading or non-reading of material evidence, or suffer from a jurisdictional error going to the root of the matter. The rationale underlying this principle is that two independent judicial minds have examined the same record and arrived at identical conclusions, thereby lending the findings a degree of reliability and credibility that a single court's determination may not command. This Court, exercising revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908, does not sit as a Court of Appeal empowered to substitute its own assessment of the evidence for that of the courts below merely because an alternative view might conceivably be taken. Interference is warranted only where the impugned findings are shown to be manifestly perverse or where the courts below have exercised jurisdiction not vested in them, failed to exercise jurisdiction so vested, or acted with material illegality or irregularity in the exercise of jurisdiction. In the present case, the petitioners have been wholly unable to demonstrate any perversity, misreading of evidence, non- reading of material evidence, or jurisdictional defect in the concurrent findings recorded by both the learned Courts below. The concurrent findings therefore constitute an independent and self-sufficient ground for dismissal of this revision petition, entirely apart from the merits of the jurisdictional challenge raised by the petitioners.

18.For the foregoing reasons, this Civil Revision, being devoid of merit, is dismissed. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*