1984 P Cr (PLP)

Appellant abovenamed has filed the above application for quashment of proceedings pending against him under section 3 of the Sind Foodgrain (Licensing Control) Order, 1957 read with section 6 of the West Pakistan Foodstuffs Control Act, 1958, in the Court of Civil Judge and F.C.M. Tando Adam, under section 561-A, Cr.P.C. on the facts and grounds mentioned in the above petition.

2. The learned Advocate for the applicant in support of the above petition submitted as under:- (a) That lodging of complaint under section 3 of the Sind Foodgrain (Licensing Control) Order, 1957 which was issued on the basis of West Pakistan Foodstuffs Ordinance, 1957 amounted to abuse of the process of the said learned trial Court as the West Pakistan Foodstuffs Ordinance, 1957 was repealed by West Pakistan Foodstuffs Control Act, 1958 in April, 1958 and consequently the notification issued under section 3 of the Foodgrain (Licensing Control) Order, 1957, on the basis of which complaint against the applicant has been filed ceased to exist on repeal of the West Pakistan Foodstuff Ordinance, 1957 in April, 1958. (b) That since the complaint in question has been filed against the applicant under the Notification which was not in existence and under the Notification dated 25th November, 1971 issued under the Pakistan Foodstuffs Act (Control Act), 1958 which is not at all applicable to the applicant's case, it is prima facie obvious that the complaint in question has been filed mala fidely in order to harass the applicant and as such the above petition is maintainable, in spite of the fact that the' applicant has not moved the learned trial Court under section 249-A. Cr.P.C. as the cases reported in 1979 S C M R 94 and P L D 1981 S C 607 and P L D 1982 Pesh. 20, on which the learned Advocate for the State has relied are not applicable to this case. In addition to this the learned trial Court has taken the cognizance of the complaint on the basis of the repealed notification not at all applicable to the applicant's case no useful purpose will be served in moving the learned trial Court under section 249/A, Cr.P.C. as the learned trial Court has issued process against the applicant.

3. That in view of his submissions hereinabove mentioned the complaint pending against the applicant cannot result in the conviction of the applicant and as such continuance of the proceedings before the learned trial Court would amount to abuse of the process of the learned trial Court.

4. The learned advocate for the State on the other hand submitted, that since applicant has not moved the learned trial Court under section 249-A, Cr.P.C. in view of the law laid down by Hon'ble Supreme Court in cases reported in 1979 S C M R 94 and P L D 1981 S C 607 as well as the case reported in P L D 1982 Pesh. 20, the above petition is not maintainable. However, on merits, the learned Advocate for the State submitted that there was no question of repeal and re-enactment of the Act in question and he further admitted rightly so that the Notification dated 25th November, 1971 issued under the Pakistan Foodstuffs Act (Control Act), 1958 was not at all applicable to the applicant's case and the earlier Notification issued under section 3 of the Sind Foodgrain (Licensing Control) Order, 1957 stood repealed, on repeal of West Pakistan Foodstuffs Ordinance, 1957 by West Pakistan Foodstuffs Control Act, 1958 and as such on merits he cannot challenge the contentions of the learned Advocate for the applicant.

5. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the complaint in question as well as through the cases cited by the learned Advocates before me.

6. Complainant, who is Mukhtiarkar Tando Adam, filed the complaint in question on 14th July, 1980 under section 3 of the Sind Foodgrain (Licensing Control) Order, 1957 allegedly amended Notification, No. SOF(III) /71 , dated 25th November, 1971 , read with section 6 of West Pakistan Foodstuffs (Control) Act, 1958, against the applicant for not being in possession of Foodgrain Licence while dealing with purchase sale/storage of wheat, in spite of the admitted fact that West Pakistan Foodstuffs Ordinance, 1957 was repealed by West Pakistan Foodstuffs (Control) Act, 1958, in April, 1958 and that Notification dated 75th November, 1971 had nothing to do with possession of licence. In spite of this learned trial Court registered the complaint and issued process remains the applicant. These facts clearly show the mala fide nature of the, complainant, ab initio and as such in my opinion, the above petition is, maintainable, as cases cited by the learned Advocate for the State would not be applicable to facts of present petition, as in the above petition quashment is not sought on basis of facts but on the non-existence of law, under which complaint against the applicant has been filed.

7. On merits, the learned Advocate for the State has rightly conceded, that the complaint in question cannot end in conviction of the applicant and as such continuance of proceedings before the learned trial would amount to abuse of the process of the learned trial Court entirely agree with the contentions of the learned Advocates before on merits of the case in question, in view of the above admitted legal position, that Sind Foodgrain (Licensing Control) Order, 1957, ... automatically repealed, on repeal of West Pakistan 1957, on enactment of West Pakistan Foodstuffs (Control) ,Act, 1958 as such present pending proceedings against the applicant cannot end his conviction and as such continuance of the said proceedings amount to abuse of the process of the learned trial Court.

8. Therefore, I allow the above application and quash the findings; pending against the applicant under section 3 of Sind Foodgrain ( Licensing Control) Order, 1957, in the Court of Civil Judge and F.C.M. Tando Adam and discharge the bail bonds executed by the applicant. M. Y. H. Proceedings quashed.