1993 PLP 569 (MLD)

Ijaz Ahmad Ch., AA: G. for the State. Date of hearing: 17th October 1992. The petitioner through this Constitutional petition has sought the quashment of F.I.R. No.49, dated 10-2-1991 registered with Police Station Chak Jhumra, District Faisalabad under section 353/186/153, P.P.C.

2. The facts as supplied in the petition are that petitioner is owner of factory running the business of cloth printing at Chak Jhumra, District Faisalabad. He supplies printing cloth to one Haji Muhammad Akram of Ehsan Cloth House. Ahmad, brother of the petitioner is a councillor of Town Committee, Chak Jhumra and is the leader of opposition group who alongwith other councillors moved an application against Atta-ul-Rehman Chairman for vote of no confidence. A complaint against Secretary and Chairman Town Committee regarding the misappropriation of funds was separately moved to the Secretary, Local Government by the Members of Town Committee and as a result thereof inquiry was ordered to be conducted. The brother of the petitioner deposed no confidence in the inquiry officer, Ch. Abdul Majid, Illaqa Magistrate who in connivance with the Chairman and Secretary of the Town Committee got the case registered against the petitioner under section 353/186/153, P.P.C. As per contents of FIR the Illaqa Magistrate was raiding the shop in connection with the checking of foreign cloth at main bazar where the petitioner intervened and interfered in the official business of the Illaqa Magistrate when he was busy in checking the shop of Muhammad Akram. Muhammad Akram and Muhammad Riaz were fined under section 161 of the Punjab Local Government Ordinance.

3. The learned counsel for the petitioner has contended that the offences mentioned in Schedule 3rd of the Punjab Local. Government Ordinance, 1979 can only be taken cognizance through a written complaint from the Chairman or a person authorised under section 161, Punjab Local Government Ordinance, 1979 and that the Magistrate who imposed the fine had no authority to act as such and therefore no question of interference in his function arises. He further contends that the Magistrate has also no authority to raid the shops for the purpose of checking of cloth of the foreign nature which function exclusively falls within the domain and purview of official agency notified under the Customs Act. The Magistrate having no power to act as customs officer could not discharge the function and therefore there was no question of interference in his official function. He submitted that the case against the petitioner is mala fide and is not made out on the basis of the FIR in question, which needs to be quashed.

4. The learned AA.-G. has pointed out that the challan has already been submitted and the case is pending before the Court for trial, therefore this petition is not liable to be proceeded.

5. The question as to whether the Illaqa Magistrate had the power to raid the shops for the purpose of checking of the foreign cloth and that whether he was competent to impose the fine for the encroachment made by the shopkeepers is a matter which cannot be dealt with on the basis of mere assertion with no document in support thereof. The learned counsel has not1 been able to substantiate the contention by placing any material on record to show lack of jurisdiction of Magistrate in the matter. Anyhow, this is a matter of evidence to be gone into by the learned trial Court and not by this Court in exercise of writ jurisdiction. The challan has already been submitted and the A petitioner can raise all these points at the trial. He has also remedy of tiling application under section 249-A Cr.P.C. on the basis of the grounds being agitated before this Court. The question of mala fides, if any, is again a question of fact, which can only be determined after recording of the evidence.

6. I, therefore, see no ground to interfere to the matter in Constitutional jurisdiction. The writ pctition in accordingly dismissed. H.B.T./G-94/L Petition dismissed.