P L D 1987 Quetta 94 (PLP)

The petitioner is a wholesale shopkeeper of Chaman. On or about 24‑6‑1986 he purchased 30 bags of sugar valued at Rs. 13,620 from Quetta and was transporting the same to Chaman in Bus No. QAC‑526 on 25‑6‑1986. The said vehicle was seized by Militia authorities of Sheela Bagh. The petitioner made an application to the Commandant, Pishin Scouts to the effect that the sugar was lawfully purchased by him and there was no prohibition under any law for its transportation to Chaman but the said ofcer directed the petitioner to approach the Assistant Commissioner Chaman or Deputy Commissioner, Pishin. The petitioner consequently made an application to the Deputy Commissioner Pishin on 26‑6‑1986 for return of the seized sugar. However in the meantime the Assistant Commissioner, Chaman on 5‑7‑1986, without summoning the petitioner, proceeded to decide the case under sections 3 and 6 of the West Pakistan Foodstuffs (Control) Act, 1958 and imposed a fine of Rs. 1,500 upon Muhammad Ymar, driver of the vehicle. The Assistant Commissioner also ordered confiscation of the sugar. The petitioner approached the Assistant Commissioner, Chaman on 16‑7‑1986 by an application requesting for release of his goods as also the Deputy Commissioner, Pishin for the same purpose by an application dated 15‑7‑1986 but both the officers declin ed to release the goods of the petitioner although there was no prohibition for transportation of sugar to any place within the Province. The petitioner challenged both the aforesaid orders before the Sessions Judge, Quetta by way of a revision petition filed on 28‑7‑1986 but the learned Additional Sessions Judge‑I, Quetta, to whom the revision petition was transferred, by his order dated 12‑10‑1986 refused to exercise jurisdiction on the ground that the order of conviction of the driver had not been challenged and he could not bifurcate the order of confiscation of goods from that order. Hence the petitioner came up with the present revision petition under section 435 read with section 439, Cr. P. C. 2. 1 have heard learned counsel for the parties and have also gone through the record. At the time of preliminary hearing of this petition an objection was raised by my Lord the Acting Chef Justice whether a second revision was competent, whereupon the learned counsel submitted that if the second revision is not competent the petition may be treated as one under section 561‑A, Cr. P. C. The learned counsel was also directed to address the Court on the question whether second revision was competent or this Court could exercise jurisdiction under section 561‑A, Cr. P. C.

3. In so far as the question of second revision filed in this Court is concerned that seems to be very clear. It is now common knowledge that second revision is not competent when a first revision has already been disposed of.

4. In so far as the second point is concerned although revision to High Court was not competent once the Sessions Judge had exercised revisional jurisdiction, but the impugned order being illegal on the faee of it, the High Court could suo motu exercise its powers to secure the ends of justice and the second revision could be treated as an application under) section 561‑A, Cr. P. C,

5. It is admitted that on the date when the sugar was being transpor ted there was no prohibition under any law for the transportation of sugar from one place to another. No control in regard to movement of sugar was in existence on the said date. The sugar was lawfully purchased by ,.,. the petitioner from Quetta and it was being transported to Chaman for commercial purpose. As no control regarding movement of sugar was in existence its seizure by the authorities is illegal and without lawful autho rity. Consequently the Assistant Commissioner, Chaman could also not confiscate it to Government. The impugned order is patently illegal and without lawful authority. It is a case where not only injustice has been done to the petitioner, but it has also been perpetuated and in order to secure the ends of justice it is appropriate to exercise the inherent powers of this Court so that an illegality is prevented from continuing. There were two separate portions of the impugned order of the A. C. Chaman. He convicted the driver for transporting the sugar and also confiscated the same. Admittedly the sugar did not belong to the driver and it was the owner of the sugar who was competent to challenge the order of confiscation of sugar and he was within his right to challenge the order of the A. C. with regard to the circumstance with which he was adversely affected. The learned Additional Sessions Judge, by refusing to interfere with the impugn ed order, allowed an illegality to perpetuate.

6. The net result of the above discussion is that this revision petition is converted into a petition under section 561‑A, Cr. P. C. This petition, c is, therefore, accepted, the impugned order of confiscation of sugar is se aside and the Assistant Commissioner is directed to return the seized sugar to the petitioner. s. G. D./262/Q Order accordingly.