MUHAMMAD RAFI Versus AHMAD SALEEM, ASSISTANT COMMISSIONER, LAHORE

This is a petition by twenty‑eight persons dealing in Karahi Tikka and Karahi Gosht seeking the revision of the order dated 29th of January 1974 passed by the Sub‑Divisional Magistrate, Lahore under section 144 of the Code of Criminal Procedure forbidding the sale of mutton in the shape of Karahi Tikka and Karaki Gosht for a period of two months from the date of the order.

2. Ch. Mohammad Anwar Khan, the learned counsel appearing for the State in this case. tried to raise a preliminary objection regarding the jurisdiction of this Court to revise the said order under section 439, Cr. P. C. on the ground that the order in question is not a judicial order and therefore, not open to revision by the High Court.

Apart from the fact that section 435 or 439, Cr. P. C. does not draw any distinction between the executive and judicial orders passes by an inferior criminal Court it is by now well‑settled that an order passed under sec tion 144, Cr. P. C. is revisable by this Court under section 439, Cr. P. C. The objection is, therefore, overruled.

3. The learned counsel for the petitioners has challenged the order on three main grounds. In the first place be contends that the order is liable to be set aside on the short ground that it was passed without notice to the persons affected in violation of the principle of audi alteram partem. That the petitioners were not afforded an opportunity to be heard before the passing of the order is clear from the text of the order itself. Further, it has not been asserted by the learned counsel appearing for the State that such an opportunity was afforded.

From paragraphs I and 2 of the order in question it is clear that it was passed under subsection (1) of section 144, Cr. P. C. and not under subsection (3) thereof, The said paragraphs read as follows:‑‑

"Whereas, it has been made to appear to me that mutton sellers and Tikka sellers etc. are still resorting in malpractices resulting in acute scarcity of the mutton causing sudden rise in prices resulting in hardship and annoyance to the general public.

And, whereas, in. my opinion there are sufficient grounds to proceed under section 144 of the Code of Criminal Procedure, 1898 and immediate prevention and speedy remedy is desirable and the directions hereinafter appearing are necessary in order to prevent disturbance of the public tranquillity and annoyance to the general Public."

The circumstances which prompted the learned Sub‑Divisional Magistrate to pass to impugned order do not disclose that the prohibition was necessitated by a situation of emergency. Therefore, passing of the order ex parte was not warranted in law. It was held in a Dacca case reported in 1968 P Cr. L J 1 at page 619 that except in emergency, prior notice to the directed persons could not be done away with while proceeding under section 144, Cr. P. C. To the same effect is the observation made by my learned brother, Shamim Hussain Kadri, J., in Abaus Sattar Fazal Din v. State (1971 P Cr. L J 228). The order in question is, therefore, bad in law.

4. Secondly, the learned counsel for the petitioners has pointed out that material facts justifying an action under section 144, Cr. P. C. have not been stated in the order. There is, no doubt, a vague reference to malpractices resulting in acute scarcity of mutton causing sudden rise in prices resulting in hardship and annoyance to the general public but no mention of any specific malpractices has been made.

It is to be noted that there is no charge of hoarding against any of the petitioners or any kother Karahi Tikka and Karabi Gosht seller for that matter. There is no indication that the sale of Karahi Tikkas or Karahi Gosht has caused any direct annoyance to the citizens of Lahore. The learned counsel for the State has, however, asserted that the consumption of mutton in the shape of Karahi fikkas and Karahi Gosht is creating scarcity of mutton in the Sub‑Division and thus pushing the prices up which is a source of annoyance to the general public. If this is the case it is clear that sale of Karahi Tikka and Karahi Gosht is only a remote and indirect source of annoyance to the general public.

In such circumstances I do not thick the power under section 144, Cr. P. C. can be exercised to deprive the petitioner of their legitimate means of livelihood. Before the Power, conferred by section 144, Cr. P. C. can be invoked it is necessary that the authority exercising the said powers should be satisfied that the apprehended effect will be or the alleged effect is. the direct consequence of the alleged cause and that there is a nexus between the two. Such satisfaction is not apparent from the order.

5. Thirdly, the learned counsel for the petitioners contends that an order under section 144 can be justified only in cases of absolute necessity,

And in this case, he asserts, better alternatives were available. It is true that if scarcity of mutton was the only problem created by the sale of Karahi Tikkas and Karahi Gosht then the sale could be restricted within reasonable limits instead of imposing a 'total ban thereon. However, this is merely a suggestion by the learned counsel for the petitioners. It isle entirely up to the authorities concerned to think' of less drastic and non‑discriminative measures. But from the facts mentioned in the order itself it is clear that the imposition of total ban on the sale of Karahi Tikka and Karahi Gosht was not an absolute necessity. Further, imposition of such a ban only for two months does not solve the problem of scarcity of mutton. It may at the most provide only temporary relief. Taking of such measures at the expense of a small section of population is not justifiable under the authority of section 144, Cr. P. C.

5. I, therefore, accept the revision petition.

It must, however, be noted that the order in question affects not only the sellers of Karahi Tikka and Karani Gosht out mutton sellers in general. Paragraph 3 of the order reads as follows:-

"3.-(i) No person/shopkeeper/mutton seller shall sell the mutton of sheep and goats etc. at a price more than Rs. 7-50 per seers.

(ii) Each shopkeeper mentioned above shall have a notice board at the conspicuous place of the shop, showing the said rate.

(iii) No person shall sell, keep for sale or expose for sale the mutton in shape of Karahi Tikka, Karahi Gosht."

It is only clause (iii) of para. 3 that affects the petitioners. I, therefore, set aside only the order contained in clause (iii) of para. 3 of the impugned order.

Order accordingly.