2009 PLP 807 (MLD)

ZIA-UD-DIN KHATTAK, J.

Messrs Pak China Fertilizers (Pvt.) Ltd., Karachi, petitioners have filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan and assailed the validity of order promulgated by the District Coordination Officer, Hairpur/respondent on 21-1-2009 under section 144, Cr.P.C. imposing ban on shifting of machinery from the premises of Pak China Fertilizers Factory, Haripur for a period of two months.

2. The necessity for this action (according to the order), arose when it was made to appear to the District Coordination Officer, Haripur that due to the default in payment of Rs.21.663 (millions) on account of electricity/gas bills and dues of the ex-labourers, the management intended to remove the machinery out of the factory premises which was likely to disturb the public peace and tranquility.

3. The learned counsel' for the petitioners contended that the District Coordination Officer is appointed under N.-W.F.P. Local Government Ordinance, 2001 and no such powers have been given to him to impose section 144, Cr.P.C.; that the provisions of section 144, Cr.P.C. have been invoked maliciously by respondent No.1 (to coerce the petitioners to clear WAPDA/SNGPL dues and pay outstanding wages to the ex-labourers) and without any imminent danger to public peace and, therefore, the impugned order was illegal.

4. The learned Deputy Advocate General appearing for the State/ respondent raised a legal objection to the maintainability of this writ petition. According to him, the petitioners should have in the first instance approached the Court of Session at Haripur. for the relief sought in this petition. In this connection, he referred to section 439-A, Cr.P.C. whereby an order under section 144, Cr.P.C. could be revised.

5. We have heard the learned counsel for the parties and perused the record.

6. It is not denied that under section 144, Cr.P.C. the District Coordination Officer has now the powers and jurisdiction in an emergency to issue an order to prevent apprehended danger likely to disturb the public peace. The District Coordination Officer, Haripur having immediate knowledge of local conditions was satisfied that there was an emergency and that it was necessary to impose ban on removal of machinery out of the factory premises. If the DCO (as alleged) had erroneously exercised jurisdiction over the subject-matter, it would be a case of merely an illegal order erroneously passed in the exercise of jurisdiction and not a case of an order passed without jurisdiction and being voidable order, it is liable to be set-aside at the instance of an aggrieved person in appropriate legal proceedings, either by having it rescinded or altered under subsections (4) and (5) of section 144, Cr.P.C. or by filing a revision petition to the Sessions Court under section 439-A, Cr.P.C.

7. Petitioners have alleged malice, which is essentially a question of fact requiring recording of evidence which exercise cannot be undertaken in writ proceedings. Since, factual controversy is involved in this case and alternate, adequate and efficacious remedy is available to the petitioners under the Criminal Procedure Code, 1898 for redressal of their grievance, they could not question the validity of order under section 144, Cr.P.C. under Article 199 of the Constitution.

8. The writ petition being not maintainable is dismissed along with C.M. No. 49 of 2009 with the observation that if need be and advisable, the petitioners may assail the impugned order either by filing an application under subsections (4) and (5) of section 144, Cr.P.C. or revision petition to the Sessions Court under section 439-A, Cr.P.C. H.B.T./76/P Petition dismissed.