1969L3011 (PLP)

(b) West Pakistan Food Stuffs (Control) Act (V of 1958)

S. 6 read with West Pakistan Food Grain Licensing Control Order, 1957, S. 3‑Accused convicted and sentenced to 6 months' R. I. by trial Court‑Appeal having failed, accused filing revision before High Court‑Accused keeping waiting for disposal of revision petition for more than five years‑‑Sentence of 6 months' R. I. reduced to that already undergone (about 3 weeks). Ch. Khalil‑ur‑Rahman for Petitioner. Tajammal Hussain for A.‑G. for‑the State. The petitioner was convicted under section 14 of the West Pakistan Food Grain Licensing Control Order of 1957 read with section 9 of West Pakistan Food Stuff (Control) Act of 1958 and was sentenced to six months' rigorous imprisonment. 2. The allegation against him was that he was carrying on business of rice and paddy without any licence and had in his possession rice and paddy far in excess of the quantity permitted under the law. A raid party visited his house on the 15th of July 1962. One of the rooms of the house was locked. The accused produced the key of the lock to Mr. Nasim Ahmad Qureshi, Assistant Food Controller who unlocked the room. The raid party recovered 46 bags of Basmati rice and 7 bags of paddy lying in the said room. The petitioner was not able to produce any licence, entitling him to keep such big quantity of rice and paddy. He did produce a ration‑card but this did not entitle him to keep so much quantity of rice and paddy with him. The rice, paddy, lock, key and ration‑card were taken into possession by the Assistant Food Controller vide Memo. Exh, P. B. The petitioner was proceeded against and was convicted and sentenced as described above. An appeal was taken to the Sessions Judge, Gujranwala, who dismissed the same but altered the conviction to one under section 6 of Pakistan Food Stuff (Control) Act of 1958 read with section 3 of the West Pakistan Food Grain Licensing Control Order of 1957. Section 9 of the Pakistan Food Stuff Control Act, 1958, is actually not relevant and it appears that the trial Court inadvertently based the conviction under that section. 3. The prosecution produced Nanhe Khan (P. W. 1), Mr. Nasim Ahmad Qureshi (P. W. 2), Khushi Muhammad (P. W. 3) and Mr. Habibullah Rice Inspector (P. W. 4). All of them were the members of the raiding party. The Courts below held that the witnesses were disinterested and independent and that the recovery of the rice and paddy had been duly proved against the petitioner. The plea taken by the petitioner was that he was residing in house No. 42 whereas house No. 43, from which rice and paddy had been recovered, belonged to some body else. Both the Courts repelled this contention and held that even if the petitioner was residing in house No. 42, the prosecution evidence clearly established that house No. 43 was also in his possession. 4. Mr. Khalil‑ur‑Rahman, learned counsel for the petitioner, raised a preliminary objection to the legality of the conviction and sentence of the petitioner. He said that the West Pakistan Food Stuffs (Control) Act of 1958 did not continue the applica tion of the West Pakistan Food Grain Licensing Control Order of 1957 and, therefore, no conviction could be based under the provisions of this order. The learned Sessions Judge has effec tively met this law point. The West Pakistan Food Grain Licensing Control Order was issued under the provisions of West Pakistan Food Stuffs (Control) Ordinance I of 1957. This Ordinance lapsed on the 15th of July 1957, and a fresh Ordinance (No. XI of 1957) by the same name was promulgated by the Governor of West Pakistan on the 23rd of October 1957. Sec tion 16 of this Ordinance continued the application of the Orders made under the provisions of its predecessor. There is no doubt that in the West Pakistan Food Stuff Control Act of 1958, which repealed the West Pakistan Food Stuffs Control Ordinance XI of 1957, did not specifically refer to the Orders made under the first Ordinance of 1957. According to section 23 of the General Clauses Act, the Orders made under the Ordinance I of 1957, will continue even after the promulgation of the Act of 1958, unless the law itself prohibits its application. The learned coun sel referred to Muhammad Waris Shah v. Province of West Pakistan (P L D 1959 Lah. 898) in support of his contention. This was a case where Food Stuffs were seized on a date when the Ordinance I of 1957 had lapsed and their Lordships held that in view of the fact that the basic law under which the West Pakistan Food Grain Licens‑ A ing Control Order had been promulgated and lapsed, no conviction could be based on the basis of the provisions of the Order. Their Lordships, however, referred to section 23 of the West Pakistan General Clauses Act of 1956, and held that Orders made under repealed Acts continue in force. Under clause 67 of section 2. of the General Clauses Act, West Pakistan Act also means a West Pakistan Ordinance. The Order promulgated under ordinance I of 1957 shall therefore continue to be in force. The preliminary objection of the learned counsel fails. 5. The case against the petitioner stands proved. The two Courts below have appreciated the evidence in a manner which is not open to exception. The conviction of the petitioner is, therefore, maintained. 6. It is urged by the learned counsel that this revision petition was filed in 1963, and it will be now very harsh on the petitioner if he is sent back to jail. He was sentenced on 13‑3‑1963. The record shows that he was bailed out by the Sessions Judge on 18‑3‑1963, during the pendency of his appeal. His appeal was dismissed on 14‑5‑1963. His sentence was suspended by the High Court by order dated the 28th of May 1963. By this calculation, he has undergone imprisonment for about three weeks. It will ordinarily be inadequate sentence for such an offence but keeping in view the fact that he has been waiting for the disposal of his revision petition for more than five years, I feel that ends of justice would be met if his sentence is reduced to that already undergone. I order, accordingly. Order accordingly.