1985 P Cr (PLP)

It is further recorded that he conducted the raid and found Hafiz Ghulam Muhammad son of Muhammad Sultan caste Arain, resident of House No.9, Gali No.4, Misri Shah, Sharif Abad, Lahore, receiving receipts from the customers, which showed that the cement was being disposed of by way of sale in black at the Railway Godown, instead of at their godowns on the fixed price. Chits Nos.1568, 1569, 1599 and 1549 and two chits without number were taken into possession from Hafiz Ghulam Muhammad, which he had collected for delivering cement to customers. Likewise, chits numbers 254 and 330 were taken into possession from the person of Muhammad Ali alias Mahnda, an agent of Messrs. M.L. Qureshi, resident of 27/C‑111, Gulberg‑

111. On checking it was found that cement against some chits had already been despatched from the godown while arrangements were being made for despatching the remaining cement, but on seeing them, the wagons on which the cement was to be taken, were returned without loading cement and that each of the two accused slipped away from the spot. The Magistrate sent the, above report to the police station for registration of the case under section 3/6 of the Punjab Essential Articles (Control) Act, 1973.

2. After necessary investigation, report under section 173, Cr. P. C. was submitted. Muhammad Tufail, Muhammad Saeed and Hafiz Ghulam Muhammad were challaned and their names were placed in column No.4 of the challan form. None else was challaned. The report contains the fact that during investigation about Muhammad All alias Mahnds, it had come to light that vide letter, dated 12‑6‑1979, from the State Cement Corporation, Messrs. M.L. Qureshi were authorised to sell the cement at the railway godown. Apparently, it was for this reason that these two persons were not challaned. According to the learned counsel for the petitioner, M.L. Qureshi, petitioner, and Muhammad Ali, were got discharged by the police from the Magistrate, submitting report that since Messrs. M.L. Qureshi had authorization from the State Cement Corporation to dispose of the cement at railway godown, they may be discharged from the case.

3. During trial in the challan submitted against Muhammad Tufail, Muhammad Saeed and Hafiz Ghulam Muhammad, statement of Mr. Abdul Matloob Khan, Magistrate was recorded on 20‑1‑1980. The Magistrate while giving facts about the raid, in the end stated that while he had taken two chits from Muhammad Ali, an agent of the petitioner, the petitioner had also arrived at the spot and at his instance the wagons were taken away, which had been brought for lifting the cement and that at his instance the accused had slipped away from the spot. He also stated that apart from the accused persons in Court, Muhammad Ali and petitioner were also accused in this case. After recording this statement, the learned trial Magistrate passed the following order:‑

4. Aggrieved by this order, M.L. Qureshi, filed petition under section 561‑A, Cr. P. C. for quashment of this order.

5. At the time of admission of the petition on 13‑7‑1981, while giving detailed history of the facts of the case, it was contended that the Punjab Essential Articles (Control) Act, 1973 is a Special Act and a special procedure for proceeding against the culprits has been laid down under section 10 of the said Act, according to which, no Court could take cognizance of any offence under this Act except on a report in writing of the facts constituting such offence made by a public servant authorised by Government in this behalf. Learned counsel had contended that in view of the special provision, the Magistrate could not proceed under section 190, Cr. P. C. While giving facts, it was also claimed that since the petitioner had been discharged by the Magistrate on a report by the Police, that no case is made out against him, the petitioner could not have been proceeded against by the Magistrate by way of passing the order under section 190, Cr. P. C. without first order of acquittal having been got set aside. He had also submitted that the petitioner was an authorised dealer and in this connection had relied upon Annexure 'A', according to which the petitioner had been authorised to deliver stocks to their customer from any convenient spot including railway shed, against proper cash memos. Learned counsel had also contended that after the order of discharge was passed by the Magistrate, on an application moved by the Investigating Officer, the petitioner had filed a civil suit against Mr. Abdul Matloob, Magistrate, claiming a sum of Rs.50,125, as damages, that counsel for the Magistrate appeared in the suit on 13‑10‑1979 and that thereafter the Magistrate had been obtaining adjournments, to gain time to press the petitioner to withdraw the suit, to which the petitioner did not agree. Learned counsel today reiterated all those contentions except that he conceded the objection of the learned Additional Advocate‑General that section 10 of the Punjab Essential Articles (Control) Act, 1973 has been amended suitable and the proceedings can be initiated without the complaint by an authorised officer. In addition, learned counsel today contended that the statement made by Mr. Abdul Matloob, Magistrate was, because of ill‑will and malice, and that he had made improvements over the raid report submitted by him adding the name of the petitioner, alleging that he had also come to the spot at the time of raid and had abetted the other accused to slip away and had sent away wagons, though this fact was not mentioned by him in the raid report. Learned counsel vehemently contended that even this statement does not warrant any action against the petitioner, firstly, for the reason that he was an authorised agent and could deliver the cement to the customers at the railway godown, and, secondly, that no allegation had been levelled even by the Magistrate that he was selling the cement in black.

6. Learned Additional Advocate‑General controverted the contention of the learned counsel for the petitioner, that the petitioner could not have been summoned by the Magistrate, under section 190, Cr. P. C. till the order of discharge was set aside. However, he did not controvert the contention ~ of the learned counsel for the petitioner that whatever was stated in the statement against the petitioner by Mr. Abdul Matloob, during trial, was not sufficient to warrant the order of summoning of the petitioner.

7. In view of the factual position raised and conceded, I do not want to go into the merits of the contention raised, whether the Magistrate had power under section 190, Cr. P. C. to sommon the petitioner, in spite of earlier order of discharge being in field, as the petition can be disposed of even without deciding this point. The factual position thus is that the petitioner held an authorization from the State Cement Corporation to dispose of the cement to the customers in whole of Lahore, at any place convenient to the customers, including the railway godown, and the fact also remains undisputed that the Magistrate while sending the raid report for registration of the case, had not said anything about the petitioner having come to the spot, what to say of having done any overt act. No material had come on record warranting the trial of the petitioner. It may be of interest to mention here that the order of discharge in favour of the petitioner was passed by the same Magistrate. The contention of the learned counsel that statement was made by Mr. Abdul Matloob, Magistrate, because of malice, as a result of the suit filed by the petitioner against him for damages also has its own weight.

8. In the circumstances, enumerated above, the petition is allowed and the order of the Magistrate, dated 20‑1‑1980, summoning the petitioner as accused stands quashed.

9. Before concluding, I would like to mention another fact that the petitioner had at an earlier stage moved a petition for quashment and Mr. Justice K.M.A. Samdani (as he then was) had directed the petitioner first to appear before the Magistrate and explain the position, both on factual and legal point and should invoke the jurisdiction of this Court under section 561‑A, Cr. P. C. in case of failure. The petitioner had moved an application under section 249‑A, Cr. P. C., which was rejected by the trial Magistrate vide order, dated 23‑4‑1981. M.Y.H. Impugned order quashed.