MAQBOOL AHMED ESC Versus ADDITIONAL DEPUTY COMMISSIONEQ BAHAWALPUR

Petitioner' No. 1 is a cotton grower whereas petitioners Nos. 2 to 4 are Commission Agents. Through this criminal revision they have challenged the order dated the 12th of November, 1973, passed by the Additional Deputy Commissioner, Bahawalpur, in exercise of the powers under section 144, Cr: P.C. whereby the export of all varieties of cotton/cotton seed (except A.C./134 variety on a permit issued by the extra‑Assistant Director of Agriculture, Bahawalpur), from Bahawalpur District to Multan District by any means to transport has been prohibited for a period of two months from the date of the aforesaid order. The order reads as follows:

"Whereas it has been made to appear to me that indiscriminate export of cotton from Bahawalpur District to Multan District is likely to cause annoyance to the general public end disturbance to the public tranquillity.

2. And whereas in my opinion there are sufficient grounds to proceed under section 144, Cr. P. C., 1898 and an immediate prevention is desirable and the directions hereinafter appear necessary in order to prevent annoyance or risk of annoyance to the general public and disturbance of public tranquillity ;

3. Now, therefore, 1, Ch. Muhammad Bakhsh, Additional Deputy Commissioner (General), Bahawalpur in exercise of the powers con ferred upon me under section 144, Cr. P. C., 1898, do hereby prohibit the export of all varieties of cotton/cotton seed from Bahawalpur District to Multan District by any means of transport except of A.C. 134 variety on a permit issued by the Extra‑Assistant Director of Agriculture, Bahawalpur.

4. This order shall take effect from 12th November, 1973, and shall remain in force for a period of two months."

2. It is argued by learned counsel for the petitioners that the Addi tional Deputy Commissioner, Bahawalpur, 'was not competent to pass the impugned order under section 144, (1) Cr. P. C. Only a District Magistrate, Sub‑Divisional Magistrate or any other Magistrate (not being a Magistrate of the 3rd Class) specially empowered by the Provincial Govern ment or the District Magistrate could act under the aforesaid section. I summoned a report from the Additional Deputy Commissioner. It is stated therein that being the Chief Executive of the District after the transfer of the District Magistrate, under section 11, Cr.P.C., he was empowered to pass the impugned order. It is further stated by him that since he exercised the power of a Magistrate 1st Class in Bahawalpur District, he was even otherwise competent to pass the said order. Oil this point learned counsel for the respondent have referred to section 11, Cr.P.C. read with section 17 (1) of the General Clauses Act and relied on Tariq Mahmood v. The State and others (P L D 1968 Lah. 939). I am satisfied that the Additional Deputy Commissioner in the circumstances was competent to pass the order in question.

3. It is then argued by learned counsel for the petitioners that the impugned order had been passed mala fide. It is submitted that it affected the interest of cotton growers and commission agents as a whole as it had been passed in order to safeguard the vested interest and to provide illegal gain to two or three ginning factory owners of the area who could not otherwise buy cotton in a competitive open market. It is submitted that the sole object of the impugned order was to compel the growers of the district to sell their product at the minimum rate and the result of the same was illegal gain to two or three ginning factory owners at the cost of many cotton growers. Consequently, the order was outside the scope and purview of the provisions laid down in section 144, Cr..P. C. Reliance was placed on Abdul Sattar Fazal Din v. The State (1971 P Cr. L.J 298) where the Sub‑Divisional Magistrate who happened to be the Chairman of the Nankana Sahib Municipal Committee, had passed such an order to protect the interests of the persons carrying on business in the vegetable fruit market set up by the Municipal Committee and it was held that in the circumstances it was a prima facie illegal order. . Viru Kamu arid another v. Dewandas Jhamandas (A I R 1940 Sind 151) was also cited in which it was held that the use of section 144, Cr.P.C. could not be allowed to be invoked by one party to a dispute in order to obtain material advantage over the other. Learned counsel also relied on Ram Aular Sahr v. Kishnupt Ram (4 I C 577) in which it was held that section 144, Cr.P.C. could not apply to a case where the object of the order under the section appeared to have been merely to prevent pecuniary loss to the opposite‑party. It is submitted that since the impugned order benefited the ginning factory owners at the cost of the cotton growers and commission agents, it was passed mala fide.

Learned counsel for the respondent argued that the impugned order had not been passed in a mala fide manner as stated by learned counsel for the petitioners. 1t is submitted that in Bahawalpur District, with the exception of few tehsils like Hasilpur, etc., where superior variety of cotton, namely A C./134 was grown, the bulk of the cotton grown was 4.F.R. 13/26 variety which was of inferior quality. On the other hand, in Multan District, all the cotton grown was of superior quality, i.e. A.C/134. The impugned order was passed in order to prohibit the export from Bahawalpur District to Multan District only of inferior quality of cotton because such export led to adulteration and mixing of superior with inferior varieties of cotton as well as cotton seed in the District of Multan thereby causing damage to the quality of Pakistani yarn and tarnishing the image of Pakistan in foreign markets as well as resulting in the production of mixed seed which was likely to affect the future production of cotton in Pakistan. It is submitted that the impugn ed order was obviously not passed in order to benefit two or three ginning factory owners, but it was passed in good faith keeping in view the provisions of sections 22 and 23 of the West Pakistan Cotton Control Ordinance/Rules, 1966, and letter No. Cotton/13543, dated the 8th of November, 1973, of the Extra‑Assistant Director of Agriculture, Bahawal pur. Learned counsel for the respondent placed before me the record of the Agriculture Department, Government of the Punjab, as well as of the office of the Deputy Commissioner, Bahawalpur. I have perused the same. The record contains, the directives, instructions, correspondence, etc. of the Department of Agriculture, Punjab. In a letter dated the 5th of January, 1973, a directive was issued to the Secretary, Government of the Punjab, Agriculture Department, Lahore, from the. Director‑General, Government of Pakistan, Cotton Board, Karachi. It is stated therein that phutti was being moved. from the inferior quality areas to the superior quality areas which would result in mixture of different varieties of phutti that would 'not only damage the quality of Pakistani yarn and spoil Pakistan's image in foreign markets but would also result in the produc tion of mixed seed which would affect the future production of cotton in the country. The Secretary, Agriculture Department, Government of the Punjab, was asked to take necessary steps under the Provincial Cotton Act to ensure that such malpractices were stopped. 'There are many such directives, etc., in the file which were to similar effect. The file indicates that the Department of Agriculture was very much concerned about the mixing up of inferior qualities of cotton and cotton seed with superior qualities and was keen that action should be taken in each and every cotton growing district to stop such malpractices. Although a power is given to the authorities under rule 22 of the Cotton Control Rules, 1966, whereby the transport of cotton or cotton seed in or out of prescribed zones was forbidden without licence, it appears that the Department of Agriculture was unable to act in this matter alone or without the assistance of the executive. In this very connection memo. No. Cotton/13543, dated the 8th of November, 1973, was despatched from the Extra‑Assistant Director of Agriculture, Bahawalpur, to‑ the Deputy Commissioner, Bahawalpur, in which it was stated as follows

"The Department of Agriculture desires to establish check posts at the following places to check the illegal transportation of cotton from Bahawalpur District to Multan District with effect from 10th November 1973, as the Government have restricted its movement from one zone to another (prohibited zone) under the West Pakistan Cotton Control Ordinance/ Rules, 1966, to avoid adulteration arid ad mixture of different varieties which cause great loss to the‑country.

In order to check this malpractice it will be helpful in the national interest by maintaining the quality in the international market if section 144 may kindly be imposed for a period of four months with effect from 10th November 1973, in Bahawalpur District, prohibiting export of cotton from Bahawalpur to Multan Division without per mission of undersigned user Cotton Control Act. I request you to kindly direct the Superintendent of Police, Bahawalpur to extend full cooperation= to the Agriculture Department by deputing at least two constables for 24 hours at each check post at the places as below :---

(1) Head Punjnad.

(2) Sutlej Bridge at Multan Road.

(3) Mailsi Link of syphon, and

(4) Head Islam. Ail‑early action is required.

Extra Assistant Director of Agriculture, Bahawalpur."

' It is submitted that it was on the basis of this memo that the impugned order was passed imposing prohibition on transportation of cotton/cotton seed for‑ a period not of four months but of two months and further the export of A.C./134 variety was not prohibited thereunder.

It is evident from the record that the impugned order had not been passed in order to benefit two or three ginning factory owners as opposed to cotton growers and commission agents. The facts of the authorities cited e by learned counsel are clearly distinguishable and they are not applicable to the circumstances of the instant case. The argument of learned counsel for the petitioners to the effect that the order had been passed mala fide is, therefore without any substance.

4. It is then argued by learned counsel for the petitioners that if the object was to act under Rule 22 of the West Pakistan Cotton Control Rules, 1966, then, the Agriculture Department could have done so and there was neither any occasion nor existed any compelling circumstances under which immediate preventive or speedy remedy was required to pass an order under section 144, Cr. P.C. dispensing with notice to the affected parties. Anyway, it is submitted that the order omitted to indicate the material facts of the case and, therefore., was ultra vires. According to learned counsel the petitioners should have been given notice and an opportunity of being heard before passing of the impugned order. Reliance was placed on Muhammad Afzal Khan Bangash v. The State and others (P L D 1969 Paesh.238) and Rani Bilkis Banoo alias Bilkis Chaudhary and another v. Syed Nurul A lam (1968 P Cr. L J 619).

I doubt if the authorities cited by learned counsel are of any help to him, firstly, because those cases related to prohibition of holding of meetings. In one of them it was held that an order passed under section 144, Cr. P.C. to prevent apprehended danger of breach of peace should be passed after prior notice to affected persons except in emergency. In the present case although the Agriculture Department could act under Rule 22 of the aforementioned Rules, it could not act effectively without the assist ance and cooperation of the executive. It is obvious that speedy action was required because the cotton season commenced from November and continued until February. It is conceded that the Authorities of the Depart ment of Agriculture could impose such restrictions under Rule 22, yet the competence of the Magistrate to pass the impugned order under section 144, Cr.P.C. for a limited purpose and for a fixed period of two months was unquestionable. Nazar Hussain alias Ranjha v. District Magistrate, Sahiwal and another (P L D 1972 Lah. 836) can be referred.

5. It is next submitted that since the material facts on the basis of which the impugned order was passed had not been given in it, this Court could interfere in revision with the `subjective' opinion of the Magistrate and strike it down. Reliance was placed on P.T. Chander, Editor, Tribune v. Emperor (A I R 1942 Lah.171) and In re: Sriremarty (A I R 1931 Mad.242).

It is indeed correct that this Court under its revisional jurisdiction can interfere where the elements essential to action under section 144 do not exist upon a fair view of the evidence. In P. T. Chander, Editor Tribune v. Emperor it was laid down that in examining the propriety of the order under section 144, the High Court would undoubtedly give due weight to the opinion of the District Magistrate who was the man on the spot and responsible for the maintenance of public peace in the district. In Nazar Hussain alias Ranjha v. District Magistrate Sahiwal and another it was held that subjective satisfaction of the District Magistrate regarding existence of sufficient grounds for proceeding under section 144, Cr. P.C. was good enough as indicated by expression "in his option" and that specific finding regarding the existence of such emergency was not absolutely essential. Somewhat similar views were also expressed in D Ithar Khan and others v. The State (P L D 1970 Pesh.19). Any way, after perusal of the record I am of the opinion that there was material before the Magistrate on the basis of which the impugned order could be passed.

6. It is then contended that it was stated in the impugned order that it had been passed in order to prevent annoyance or risk of annoyance to the general public and disturbance of public tranquillity. But, in the present case there did not exist even any connection between the act prohibited and the danger apprehended to prevent which the order was passed. Reliance was placed on P. T. Chander, Editor, Tribune v. Emperor.

Again the authority cited by learned counsel is not applicable to the facts of the present case where speedy action was required to be taken in order to stop a particular type of malpractice. The connection between the act prohibited and the danger apprehended was quite obvious and need not be further elaborated. This" argument of learned counsel is without force in the light of what has been discussed above.

7. Learned counsel for the respondent had earlier raised a prelimi nary objection that the petitioners could have availed of the remedy provided under section 144 (4) and (5), Cr.P.C. before rushing to invoke the revisional jurisdiction of this Court. It was pointed out that in para. 4 of the petition it was stated that the Magistrate did neither give an opportunity to be heard to the affected persons before the passing of the impugned order nor was it i given after the promulgation of the same.. It was submitted that afters the promulgation of the impugned order the petitioners, before coming to this Court should have moved an application under subsections (4) and (5) of section 144; Cr.P.C. It was contended that since the petitioners had not moved such an application before coming to this Court, their present revision should be dismissed on that account alone. Reliance was placed on Said Omar v. Federation of Pakistan (P L D 1968 Lah. 382) Raival Ali Amir v. Messrs Dalmia Cement Ltd. (P L D 1961 Kar. 265), Ithar Khan and 18 others v. The State and Pitrchai v. Muna Muna Chena Muhammad Atham Sammatti and others (A I R 1932 Mad. 720).

Learned counsel for the petitioner vehemently argued that direct revision before this Court against an order passed under section 144 (3), Cr.P.C. was competent. Reliance was placed on Nazar Hussain alias Ranjha v. District Magistrate,. Sahiwal and another ; Abdul Sattar Fazal Din v. The State (1971 P Cr. L J 228), Pitchai v. Muna Muna Chena Muhammad Atham Sammatti and others and In re : Ardeshir Phirozshaw Murzban (AIR 1940 Bom. 42).

From amongst the authorities cited by learned counsel this aspect of the case was not discussed. In. Nazar Hussain alias Ranjha v. District Magistrate, Sahiwal and another and Pitchai v. Muna Muna Chena Muhammad Atham Sammatri and others it was held that although direct revision lay, but should not at first instance be filed in the High Court. In Abdul Sattar Fazal Din v. The State and In re : Ardeshir Phirozshaw Murzban 'the facts were distinguishable from the present one. Learned counsel for the petitioners submits that if the impugned order was passed to ‑stop the malpractice of mixing inferior qualities of cotton and cotton seed with superior qualities, then this was never done by ,the cotton growers or the commission agents and therefore they should not be made to suffer on account of the wrongs committed by others. According to learned counsel the cotton growers or‑the commis sion agents did not indulge in such malpractices because their concern was only to sell their product. That may be so, but had the petitioners moved an application under sub sections (4) and (5) of section 144, Cr.P.C. the Magistrate may have altered his order so as to redress their genuine grievances. He may have satisfied them that the impugned order was not passed mala fide to benefit two or three ginning factory owners. But since they did not file such an application, they laboured under a false impression that the impugned order had been passed by the Magistrate to benefit two or three ginning factory owners at their cost. If the petitioners feel that they are not responsible for any such malpractice on account of which the impugned order was passed and that their aim is only to sell their product, then they can still move an application under subsections (4) and (5) of section 144, Cr. P. C. if so advised, and the Magistrate, concerned, I trust, shall consider their case sympathetically on merits.

8. In the light of what has been discussed above, I am of the opinion that the impugned order calls for no interference by this Court. This petition is dismissed.

Petition dismissed.