P L D 1972 Lahore 836 (PLP)

5. Having considered the contentions raised by the learned counsel for the parties I am clearly of the view that when the shortage of milk and milk products was brought to the notice of the District Magistrate by the Military authorities which presumably "in his opinion" amounted to danger to human's health, life or safety he could legitimately invoke the provisions o section 144, Cr. P. C., of course, to be properly exercised within the statutory limits. Again having considered the authorities relied upon by the learned counsel for the parties I am firmly of the view that the expression "public generally when frequenting or visiting a particular place" as occurring in subsection (3) of section 144, Cr. P. C. was not necessarily susceptible of a narrow construction but an order if otherwise properly passed in terms of the statutory provision could be extended to the members of a the public in general both residents of the district as well as those visiting the district from outside. This position seems to be clearly established by the authorities relied upon by the learned Additional Advocate‑General. In A I R 1937 Lah. 80, an order of the District Magistrate, Lahore passed in the purported exercise of his powers under section 144, Cr. P. C., putting an embargo on public meetings all over the district of Lahore was unsuccess fully challenged in the High Court on the ground that the entire district could not be equated with "a particular place" as envisaged by subsection (3) of section 144, Cr. P. C. The argument was repelled and the order was upheld by the High Court.

6. Two important questions, however, remain to be deter mined. Firstly, whether as contended on behalf of the petitioners, such an order even though temporary in nature banning export of article of food was beyond the competence of the District Magistrate and could only have been passed by the Provincial Government under the West Pakistan Foodstuffs Control Act, 1958 which left ample scope for extending the definition of "food‑stuff" to milk and milk products; secondly, whether saving of prosecutions, their continuation and even fresh initiation not withstanding the lapse of two months as envisaged by paragraph 7 of the impugned order could be validly directed by the District Magistrate, and further, in case the propositions were to be answered in the nagative whether the impugned order could be partly upheld despite this part of the same having been struck down.

7. Constroverting the first point raised on behalf of the petitioners that an order banning the export of milk and milk products was within the exclusive competence of the Provincial Government, learned Additional Advocate‑General relied in the first instance on the vast discretionary power conferred on a com petent Magistrate under section 145, P. P. C. to be exercised in the proper and timely safeguard of the legitimate interests of the public at large with a view to preventing, inter alia, danger to human life, health, or safety or a disturbance of public tranquillity etc. Reliance was also placed in this regard on three authorities, viz. Narayana Mudali and another v. Peris Kalathi and another (A I R 1939 Mad. 783), Pir Gul Hasan and another v. The Crown (P L D 1956 F C 190) and Qari Abdul Hameed Qadri v. District Magistrate (P L D 1957 Lah. 213) wherein the scope and extent of the powers of a competent Magistrate under section 144, Cr. P. C. were elaborately discussed. In the first of these authorities, the precise observation pressed into service, reads as follows:- "It must be remembered that orders under section 144, Cr. P. C. vary very widely in their scope and effect. They may have the most drastic effect in curtailing the liberties of individuals or communications or they may restrict for a considerable period the use by a man of his private property." In the second authority, Pir Gul Hasan and another v. The Crown the facts of the case were that the District Magistrate, by an order under section 144, Cr. P. C. had prevented the public at large from joining a religious meeting on the grounds, inter alla, that it was opposed to the religious susceptibilities of persons forming the Muslim Faith and Religion on account of the use of "insulting and outrageous devices" one of which was designed to create an impression upon the visitors that offering of prayers on the day of Haj in that place could be equated with the per formance of Haj in Mecca. The order was challenged in the Federal Court which repelled the argument that it amounted to extinction of a fundamental right of the citizens. Cornelius, J. as his Lordship then was, observed as follows:- "Even were the right in all respects a lawful one, the District Magistrate would be under a higher obligation to maintain public peace and tranquillity, should these have been suddenly threatened by the exercise of the aforesaid right, then his obligation to protect individual or individuals laying claim to such right in the exercise thereof. In such circumstances it is clearly right that the needs of public order should be paramount." In the last authority, Qari Abdul Hameed Qadri v. District Magistrate, Lahore and another the order of the District Magistrate, Lahore passed in exercise of his powers under section 144, Cr. P. C. prohibiting the assembly of five or more persons within the limits of the Lahore Cantonment was un successfully challenged on similar grounds before A. R. Changez, J. with whom I am in respectful agreement.

8. Having considered the numerous authorities, Changez, J. relied on the following observations made in A I R 1951 S C 118:- "The phrase `reasonable restriction' connotes that the limita tion imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public. The word `reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates." Earlier, in this judgment, it was observed:- "Surely the danger to human life and safety and the distur bance of public tranquillity fall within the purview of the expression "Public Order", and if an order is passed by the District Magistrate to prevent danger to human life and safety and the disturbance of public tranquillity, it is an order passed in the interest of public order within the meaning of Article 9 of the Constitution." The last observation pressed into service from this judgment was as follows:- "It therefore follows that in determining the reasonableness of restrictions several circumstances shall have to be taken into consideration, including the conditions prevailing at the time, and the nature, extent and duration of the restrictions of the fundamental right having regard to all the surrounding circumstances of the case."

9. It was next argued by the learned Additional Advocate General that the power conferred under section 144, Cr. P. C. were one of an emergent nature and the order passed thereunder could only remain operative for a maximum period of two months, liable to be recalled earlier subject to the disappearance of the danger or threat. It was argued that in view of the acute shortage of milk products in Sahiwal District making it difficult to provide the Armed Forces deployed on the Border the learned District Magistrate was fully justified in invoking these powers in wider public interests. It was conceded that no such order for more than a period of sixty days could be passed by the District Magis trate which would be within the exclusive competence of the Provincial Government whose responsibility it was to regulate and ensure the supply and distribution of foodstuffs within the province as sought to be guaranteed or at least envisaged by the West Pakistan Foodstuffs Control Act, 1958.

10. In defence of para. 7 of the impugned order which purported to protect the continuation of proceedings initiated on account of the violation of an order passed under section 144, the learned Additional Advocate ‑General relied on Emperor v. Rajendrasing Ramsing (A I R 1940 Bom. 195) and Sakhawat Ullah Khan v. The State (1969 P Cr. L J 42). In the Bombay authority, which was a Division Bench case the view taken was that when an order under section 144, Cr. P. C which could not operate for more than two months was with drawn earlier, a person could still be charged with its violation if it was committed at a time when the order was still in operation The precise observation reads as follows:- "When such an order is withdrawn on a particular date, the position is exactly the same as if the original order had beet: restricted to that date, and, in my opinion, it is clear that person can be charged with committing an offence against the order at the time when it was in operation. The fact that he was tried after the order had ceased to be in operation seems to me to be entirely irrelevant." The facts of the Supreme Court case, Sakhawat Ullah Khan v. The State briefly, were that a Sub‑Divisional Magistrate had drawn up proceedings under section 144, Cr. P. C. and had directed a Circle Officer to inquire into the matter and submit a report. On the basis of the report, the learned Magistrate directed the issuance of summons, against the petitioners at a time when the statutory life of the order under section 144, Cr. P. C. had already elapsed. The validity of the action of the Magistrate was upheld throughout, including the Supreme Court.

11. The learned Additional Advocate‑General tried to dis tinguish Akhtar Mahmood v. District Magistrate, Lahore wherein Ortcheson, J. as he then was, had struck down a part of an order passed by the District Magistrate under section 144, Cr. P. C. restricting dancing in a restaurant known as the "Peoples` Restaurant" of which the language was identical with that employed in para. 7 of the impugned order. It was precisely the continuation of criminal proceedings initiated on the violation of the order within a period of two months or a fresh launching of such proceedings which was successfully assailed before his Lord ship on the basis of Queen‑Empress v. Sheodin (I L R 10 All. 115) wherein a Full Bench authority of the Calcutta High Court, Gopi Mohan Mallak v. Tara Moni Chowdhrani (I L R 5 Cal. 7), was discussed. Relying on this as also on Crown v. Haveli (P L D 1949 Lah. 550) another Full Bench decision, the learned Judge took the view that the District Magistrate had attempted to secure permanence or semi‑permanence of the impugned order, a procedure entirely unknown to the Law". His Lordship quoted the following observation from the Full Bench case of Lahore:- "The general law in relation to temporary Statutes is that once such a Statute has expired it ceases altogether to have effect as if it had never been except as to the transactions past and closed. This result follows unless there be provision made in the Statute itself for continuing the effect thereof in any respect." In this view of the matter his Lordship struck down the impugned para. being ultra vires of the powers of the District Magistrate but maintained the rest of the order.

12. It was contended by the learned Additional Advocate -General that this view of the learned Single Judge could not prevail in the face of Emperor v. Rajendrasingh Ramsing a Division Bench authority, and the Supreme Court judgment in Sakhawat Ullah Khan v. The State referred to earlier. Reliance was also placed in this regard on the statutory provision con tained in section 188, P. P. C. wherein the disobedience of an order passed under section 144, Cr. P. C. had been made a substantive offence punishable with a maximum term of six months' imprisonment or with fine extending up to Rs. 1,000 or with both.

13. Lastly, it was contended by the learned Additional Advocate‑General that in case the contention raised by him in defence of para. 7 of the impugned order did not find favour with this Court, it was competent for it to partly strike it down and exclude para. 7 which would not make the least difference in so far as the prosecution of persons violating the impugned order or for that matter the present petitioners were concerned. Reliance was placed in this regard on Ramchandra B. Loyalka v. Shapurji N. Bhownagree (A I R 1940 Bom. 315).

14. Having carefully considered the position I am of the view that although an order banning export of milk and milk products from certain specified areas in the province could be C legitimately made by the Provincial Government under the West Pakistan Foodstuffs Control Act, 1958, as also envisaged by a Notification No. SOF‑1‑161/661 dated 3‑10‑1963 whereby the definition of "foodstuffs" was also extended to milk and milk products, yet the competence of the District Magistrate to pas the impugned order under section 144, Cr. P. C. for a limited purpose and a temporary period of two months or less is unquestionable. The statutory life of such an order is only two months and does not extend beyond it. The object primarily is to meet an emergent situation the existence of which cannot be denied in the instant case having regard to the background and the circumstances which led to the imposition of the ban in question.

15. Learned counsel for the petitioners tried to argue that no specific finding regarding the existence of such an emergence had been given by the District Magistrate before passing the impugned order nor did the circumstances justify such an inference. The contention, obviously, has no force. I have already referred to the vast discretionary power vesting in the District Magistrate in this regard whose subjective satisfaction regarding the existence of sufficient grounds for proceedings under p section 144, Cr. P. C. would be good enough as already indicated by the expression "in his opinion". Of course, as stated earlier, the order has to be made within the four corners of the statutory provision which does not appear to have been transgressed in the instant case. The shortage of milk supply to the members of the armed forces surely constitutes a valid ground for proceedings in the matter.

16. As regards the objection to paragraph (7) of the impugned order it is abundantly clear that in case a violation o the order under section 144, Cr. P. C. made punishable under section 188, Cr. P. C. has taken place during the subsistence o the order and some sort of proceedings have also been initiated in that regard during that period, the validity of subsequent prosecutions would not be open to challenge on that account. Of course, it is hardly necessary to say that the provisions of the General Clauses Act which dealt with the effect of repeal of statutes cannot by analogy be extended in its application to a case of this nature. But assuming that paragraph (7) leas to be struck down on the view taken by Ortcheson, J. in Akhtar Mahmood v. District Magistrate, Lahore referred to earlier, it would hardly make any difference in so far as the validity of the material part of the impugned order is concerned. Even otherwise, the learned District Magistrate appears to have been a very reason able and realistic view in drafting the impugned order wherein ample scope has been left to except genuine cases of hardship from the rigour and hardship of the impugned order which could also be altered a rescinded in suitable cases under section 144(4), Cr. P. C. by the District Magistrate himself.'

17. The upshot of the discussion, therefore, is that there is no force in these petitions which are hereby dismissed. S. A. H. Petition dismissed.