MUMTAZ ALI SHAH Versus THE STATE
This is an application praying quashment of criminal proceedings entitled State v. Mumtaz Ali Shah instituted in pursuance to F. I. R. No. 424/ 1973, dated 13th September, 1973, at Police Station, Baghbanpura, which are pending trial in the Court of Mr. Jehangir Khan Goraya, M. I. C, Lahore.
2. The facts leading to this petition are that the police through a decoy witness purchased a tin of Banaspati Ghee from the petitioner who sold it at a rate of Rs. 150 which was higher than the one fixed by the 1 District Magistrate in his order dated 13th September, 1963 promulgated under section 144, Cr. P. C. The challan of the case was submitted for trial of the petitioner under section 188, P. P. C. read with section 6 of the West Pakistan Foodstuffs (Control) Act, 1958.
3. It is submitted by the learned counsel for the petitioner that no offence was committed under section 6 of the Foodstuffs Act referred to above, for no notification had been issued by the Government under section 3 thereof. The learned counsel for the State agreed with this contention. In this view of the matter the petitioner could not have been challaned under section 6 of the Act. As regards section 188, P. P. C. the learned counsel submitted that the order referred to above was ultra Tires of the powers of the District Magistrate as it could in no case be passed under section 144, Cr. P. C. It is submitted that there is a specific law under which only the Government can regulate the prices of food products. Banaspati Ghee had been declared as a foodstuff under section 2 (a) of the West Pakistan Foodstuffs (Control) Act, 1958. Admittedly, therefore, the Government could, if it was so minded, issue another notification under section 3 as well to regulate the prices of this commodity. The provisions of section 144, Cr. P. C. can only be resorted to for immediate prevention or a speedy remedy. The material facts are also to be stated and the order can only be passed if the District Magistrate considered that such an order is likely to prevent or tend to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or or a disturbance of the public tranquillity or a riot, or an affray. Obviously no such situation can be imagined to have either arisen or to have been taken care or under this order. Even no circumstances are stated to exist at the relevant time while it was considered necessary to pass such an order. In a somewhat similar situation this Court in the case of Ch. Abdul Rehman v. District Magistrate, Lyallpur (1974 P Cr. L J 495) observed as follows:‑
"One can with some reasoning demonstrate the correctness of the first three propositions non of which refers to such a local condition, situation or emergency as may attract the exercise of power under section 144, Cr. I'. C. The link is sought to be provided by proposition No. (iv). A commodity may be scarce in the country, butt not in a particular locality, or in a locality but not in the country. It is not the scarcity in the country which attracts the emergency power of the Magistrate but scarcity of a particular nature in the locality within his jurisdiction. Not only there must be scarcity, because one may learn to live with it, but a scarcity which, as stated, is likely to result in disturbance of public peace and tranquillity. Therefore sugar had to be scarce in Lyallpur or a part of Lyallpur and not necessarily in the country and the shortage anticipated bad to be such as could threaten public peace. There is an omission to state this fact.
11. The order does not conform to law in yet another aspect. An order under section 144, Cr. P. C. can be passed only where 'immediate prevention or speedy remedy is desirable'. The involved process set out above in the four propositions makes it clear that no immediate prevention or speedy remedy is aimed at."
In the circumstances the order passed under section 144, Cr. P. C. by the learned District Magistrate cannot be condoned and, therefore, a violation thereof would not amount to an offence to be punished under section 188, P. P. C.
.
For the reasons stated above the criminal proceedings pending against the petitioner in the Court of Mr. Jehangir Khan Goraya, M. I. C., Lahore are declared to be illegal and hence quashed.
Petition allowed.