YAHYA JAN Versus DISTRICT MAGISTRATE; PESHAWAR

SHAH ABDUL RASHID, J ‑‑‑‑ Since common questions of law are `involved in all of' them this order, besides disposing of the present petition (W.P. No. 786 of 1979) by YYahy3 Jan etc., shall also dispose of W.P. No. 800 of .1979 by Major (Retd.) Nisar Muhammad Khan etc., P.W. No. 802 of 1979 by Noor Badshah etc., :and W.". 799 of 1979, by Said Badshah etc.

2. The present petitions, namely, W. P. No. 786 of 1979, W. P. No. 800 of 1979 W. P. No. 802 of 1979 arise out of the same order dated 6th November 1979, of the District Magistrate, Peshawar purporting to have been made under section 144, Cr. P. C. whereas W.P. No. 799 of 1979 arises out of a similar order made by the District Magistrate, Mardan on 22nd day of October, 1979. Though both the orders are differently worded, the intention thereof appears to be common, namely, to prevent the use of unauthorised sugar‑cane power crushing machines installed by the Zamindars in the districts of Peshawar and Mardan. The order of the District Magistrate, Peshawar, is as follows :‑

Whereas it has been made to appear to me that unauthorised sugar cane power crushing machine installed by the Zamindars in the Peshawar District are causing acute shortage of sugarcane supply to the Mills and there is every likelihood of disturbances of public peace and tranquillity.

And whereas I am satisfied that there are sufficient grounds to proceed under section 144, Cr. P, C. arid directions hereinafter appearing, are necessary in order to prevent danger to public peace and tranquillity.

This order shall come into force with immediate effect and shall remain in force for a period of 60 days.

Notwithstanding the expiry of this order anything done, action taken, obligation liability, penalty or punishment incurred/conferred shall be valid and fresh proceedings against offenders in Courts of Magistrates having 1st Class Powers under the Criminal Procedure Code and their punishment in respect of offences committed during the enforcement of the order shall be continued or launched as if this order has not expired.

Persons violating this order will be dealt with under section 188, P. P. C.

The prohibition under this order shall not apply to the sugar cane crushing machine duly authorised by the Government.

Given under my hand and seal of the Court. this 6th November, 1979.

(Sd.)

(Khalid Mansoor Khan),

District Magistrate, Peshawar"

The order made by the J District Magistrate, Mardan, on the other hand, is in the following words :‑

"Whereas it has been brought to my notice that a large number of unregistered/unauthorised electric/diesel cane crushers are working throughout the District of Mardan.

And whereas it is expedient to check these unregistered and un authorized cane crushers whose functioning is detrimental to the public interest.

Therefore I, Anwar Saifullah Khan, District Magistrate, Mardan in exercise of the powers conferred upon me under section 144, Cr.P.C. do hereby ban all unauthorized cane crushers not registered with Industries Department and operated by electric energy, diesel or any other means with immediate effect throughout the limits of Mardan District. This order shall remain in force for a period of two months from the date of its issue.

Given under my hand and the seal of the Court this 22nd date of October, 1979.

(Sd.)

(Anwar Saifullah Khan),

District Magistrate, Mardan."

3. In all the four petitions the orders purporting to have been made under section 144, Cr. P.C. have been challenged as being without lawful authority and of no legal effect. In all the petitions besides impleading the District Magistrates of the concerned Districts as party, the Executive Engineers have also been impleaded as respondents ; for they have dis connected the electricty supply to the crushing machines.

4. In order to analyse metrically and to examine the impugned orders necessary to scan the provisions of subsection (1) of section 144, Cr. P.C. under which the said orders have been made. The relevant part of the said subsection reads as follows :‑ "in cases where, in the opinion of a District Magistrate, .there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable.

Such Magistrate may, by a written order stating the material facts of the case direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends 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 a disturbance of the public tranquillity, or a riot, or an affray."

5. The above provisions would show that before making an order under subsection (I) of section 144, Cr. P.C. the first requirement is that the District Magistrate should be of the opinion that there is sufficient ground for proceeding under the said section. The second requirement is that immediate prevention or speedy remedy is desirable. For the form of the order, the first essential ingredient is that the order should be in writing. The second ingredient is that in the order material facts of the case should be stated. The contents of the order in the form of direction are to be addressed to a person for the following purposes :‑

(i) To abstain from a certain act.

(ii) To take certain order with certain ‑property in hi:, possession or under his management.

The direction can be issued if the Magistrate considers that such direction is‑‑‑

(i) likely to prevent, or tend to. prevent, obstruction or risk of obstruction ;

(ii) likely to prevent, or tends to prevent, annoyance or 4 risk of annoyance:

(iii) likely to prevent, or tend to prevent, injury or risk of injury ;

(iv) likely to prevent, or tend to prevent, danger to human life, health or safety ;

(v) likely to prevent, or tend to prevent, a disturbance of the public tranquillity, or a riot, or an affray.

6. In all the petitions, the petitioners, besides invoking the powers of this Court under section 43:, Cr. P.C., have also sought for relief by this Court in exercise of its extraordinary jurisdiction under Article 199 of the Constitution. The shelter behind the latter provision has been taken in view of the fact that the Executive Engineers of the WAPDA have stopped the supply of electricity to the crushing machines of the petitioners and since relief is sought against them as well, the provisions of section 439, Cr. P.C. alone would not give them any remedy against said Executive Engineers.

7. There is no doubt that the jurisdiction of the District Magistrate under section 144, Cr. P.C. is confined to the four corners of the powers given to him in the said section. Obviously, therefore, if the impugned orders are covered under the said section and have been made in accor dance with the procedure laid down therein the petitioners cannot success fully challenge them.

8. As far as the order of the District Magistrate of Mardan is con cerned, it shows that the petitioners, Said Badshah and others, were directed to close down the unauthorised crushing machines because he considered such an order to be in the "public interest." As already observ ed an order under section 144, Cr. P. C. cannot be made for the purposes mentioned therein. The order of the District Magistrate, Mardan does not say that the order made by him is likely to prevent, or tends to prevent, obstruction or risk of obstruction, or is likely to prevent, or tends to prevent, annoyance or risk of annoyance, or is likely to prevent, or tends to prevent, injury or risk of injury, or is likely to prevent, or tends to prevent, danger to human life, health or safety, or is likely to prevent, or tends to prevent a disturbance of the public. tranquillity, or a riot or an affray. The order, therefore, is not within the four corners of the provisions of section, 144 Cr. P. C. It can, however, be argued that it is not the form of the order but the substance thereof which has to be taken into consideration and that if the Magistrate had powers to issue an order under section 144, Cr. P. C. he could do so if the intention was to prevent anyone of the mischiefs mentioned in the said section. The learned Advocate‑General has urged that the intention of the District Magistrate was to prevent disturbance of the public tranquillity inasmuch as if the Zamindars continue to make gur with electric power on crushing machines, then they would not supply the sugar cane to the Sugar Mills which would cause partial, if not complete, closure of the Mills and that would result not only in the shortage of the sugar but also tend to put out of employment the labourers of the Mills. This eventuality, according to the learned Advocate‑General, would create public disturbances inasmuch as, on the one hand, the labourers who go out of the job, would create, disturbances and on the other hand the shor tage of sugar would give an occasion to the public at large to protest against the Government and thus create a law and order situation. The contingencies to which the learned Advocate‑General has referred are too far‑fetched and so remote that it is hardly possible to establish a connec tion between the working of the Sugar Mills and the public tranquillity. No doubt the public interest does include peaceful atmosphere and preven tion of disturbance and law and order situation nevertheless there should be some connection with the cause and the effect. If the line of argument as adopted by the learned Advocate‑General is accepted then the District Magistrate would be empowered to pass any order whatsoever under a self conceived conception that the order so passed shall have some indirect bearing on the law and order situation. In our opinion, therefore, the ground on which the order is based is not covered within the ambit of section 144, Cr. P. C.

9. The order of the District Magistrate, Peshawar is somewhat artfully drafted and it has been stated therein that the use of unauthorised sugar cane crushing machines by the Zamindars is likely to create distur bance of public peace and tranquillity. However, as already observed, there is, no connection between making of gur by power on crushing machines and public tranquillity and the law and order situation and the connection which the learned Advocate‑General has tried to establish is too far‑fetched to. appeal a judicial mind. For this reason, therefore, the order of the District Magistrate, Peshawar also suffers from the same defect.

10. The learned Advocate‑General argued that when an order under section 144, Cr. P. C. is made by a District Magistrate it cannot be chal lenged on the ground that the purpose for which it is made has no connec tion with the mischief which it seeks to prevent. In other words it was urged that if the District Magistrate is subjectively satisfied that the direc tion preventing certain act would tend to prevent ;;reach of public peace and tranquillity, the order cannot be challenged on the ground that it has no connection with the subject‑matter of direction. In substance the learned Advocate‑General contends that it is the subjective satisfaction of the District Magistrate in making the order and that the order itself is not open to judicial scrutiny and this Court cannot, sit in judgment and come to a different conclusion that the order passed is not within the four corners of section 144, Cr. P. C. in this contention there is no substance. The satisfaction of the Magistrate as to the necessity of making an order like the one which is under attack cannot be made entirely subjective under sub‑section (5) of section 144, Cr. P. C. Where such an order is challenged the Magistrate is bound to give an opportunity to the person concerned of appearing before .him and showing cause against the order. The decision of the Magistrate in the proceeding would thus undoubtedly be a judicial order and he shall have to set it aside unless he comes to the conclusion that the grounds on which it rests are in law sufficient to warrant the order. As such it cannot be said that the section requires only subjective satis faction of the Magistrate not open to judicial scrutiny. No doubt the order is not appealable, the High Court has power under section 435 read with section 439, Cr. P. C. to entertain an application for revision of such an order. Again a penalty for the infringement of an order under sec tion 144, Cr. P. C. is provided in section 188. P. P. C. Therefore, when a prosecution is launched thereunder the validity of the order under sec tion 144 Cr. P. C. could be challenged. The remedy of judicial review not being illusory it cannot be said that mere subjective satisfaction of the District Magistrate is sufficient and that the High Court while sitting as a Court of revision cannot go into the merits of the order and hold that the order has no connection whatsoever with the mischief which it seeks to prevent.

11. The learned Advocate‑General in support of his contention, referred to above, has relied on the cases of Itbar Khan v. State (P L D 1970 Pesh. 19), Muhammad Ismail v. Muzaffar Qadir, District Magistrate, Sahiwal (P L D 1968 Lah. 1353), Nida Hussain v. District Magistrate, Sahiwal (P L D 1972 Lah. 836), and Maqbool Ahmad v. A.D.C., Bahawalpur (1980 P Cr. L J 851), I do not want to encumber this order with discussing the facts of these cases because they lay down law relating to the particular orders which had been impugned therein. In such matters each case has to depend on its own merits and the precedents can be taken into account only with regard to the general enunciation of law and not for the purposes of examining a particular order or an instru ment. The learned counsel for the petitioners has mainly relied on the case of United Sugar Mills v. District Magistrate, Sukkur (P L D 1979 Kar. 410), in which most of the cases relied upon by the learned Advocate‑General had been discussed and distinguished. This case too relates to the particular facts of the order made under section 144, Cr. P. C. which had been challenged therein and it is not necessary to state the facts thereof in detail. Other cases relied upon are Thankin Aung Bala v. District Magistrate, Rangoon(A I R 1939 Rang. 181), Muhammad Afzal Bangash v. State (P L D 1963 Pesh. 38) and Gulab Din v. The Azad J. & K. Government (PLD 1960AzadJ&K51). These cases too encompass the particular facts of the orders impugned therein and no useful purpose can be served by discussing the facts of those cases.

12. As already observed the order of the learned District Magistrate not being within the four corners of section 144, Cr. P.C. prohibiting the Zamindars from making gut with the aid of power on crushing machines cannot be upheld and is, therefore, set aside. It is further directed that the Executive Engineers, WAPDA, shall, in each case, resume the supply of power to the crushing machines of the petitioners if the order had followed as a result of the order of the District Magistrate and not due to any other violation on the part of the petitioners.

Order set aside.