2011 PLP 2647 (YLR)

SAGHEER AHMAD QADRI, J.--Muhammad Ajmal accused/petitioner is owner of a "Bakari" with the name and style of "FOOD-FESTIVAL" wherefrom the complainant/respondent No. 4 a Senior Headmaster, Government High School, Khanewal purchased food items to be served to the students, out of which a large number of students fell seriously ill and case vide F.I.R. No. 148 of 2010 dated 13-3-2010 under sections 21/23(c) of West Pakistan Pure Food Ordinance, 1960 read with sections 272, 273 and 420, P.P.C. was registered against the petitioner/accused, who after arrest was subsequently bailed out; that challan has been submitted in the court and petitioner and his co-accused have been charged under section 23(1)(C) of West Pakistan Pure Food Ordinance, 1960 road with section 273, P.P.C. on 29-4-2010. Instant petition under sec?tion 561-A, Cr.P.C. read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is moved by the petitioner for the quashing of F.I.R. and the proceedings pending before the learned trial Court on the grounds that under section 32 of the West Pakistan Pure Food Ordinance, 1960 it is provided that no court shall take cognizance of any offence punishable under this Ordinance except on the report in writing of the facts constituting such offence made by a Health Officer or a Local Authority or an Inspector authorized in this behalf by a general or special order of the Director or Government; that F.I.R. has been lodged by an unauthorized person and subsequent cognizance taken by the learned Trial Magistrate is illegal. It was further agitated by the learned counsel for the petitioner that offences under sections 272 and 273, P.P.C. are non-cognizable offences and in this respect no F.I.R. can be registered prior to the completion of the procedure under section 155, Cr.P.C. While relying on "Mubarik Ali v. The State (1969 PCr.LJ 404) prayed that this petition be allowed. 2: On the other hand, learned Law Officer assisted by learned counsel for the complainant has vehemently opposed this petition by contending that petitioner and his co-accused provided adulterated and substandard food to the complainant as after having taken the same so many students fell ill and their lives were in danger; that challan has already been submitted, in the learned trial Court and equal, efficacious and effective remedy is available with the petitioner to file a petition under section 249-A, Cr.P.C. before the learned trial Court; that at this stage petition for quashing of F.I.R. when charge has already been framed and the trial has commenced is not maintainable. Reliance is placed on "Izzat Khan v.???????? Muhammad Iqbal and another" (2010 PCr.LJ 558), Sharafat Ali v. S.H.O. and others (PLD 2009 Lahore 8) and "Haji Sardar Khalid Salem v. Muhammad Ashraf and others" (2006 SCMR 1192). Prayed that this petition be dismissed.

3. I have considered the arguments addressed by learned counsel for the parties.

4. A specific procedure under the West Pakistan Pure Food Ordinance, 1960 is provided for the initiation of action/ proceedings against the accused person. Under section 32 of the Ordinance, ibid, it is provided as under:-- "Complaint to be filed by whom.

No Court shall take cognizance of any offence punishable under this Ordinance except on the report in writing of the facts constituting such offence made by a Health Officer or a Local Authority or an Inspector authorized in this behalf by a general or special order of the Director or Government." Admittedly, Muhammad Ashraf Rana/respondent No. 4 is not an authorized person as provided under section 32 of the West Pakistan Pure Food Ordinance, 1960 to lodge the complaint under the said Ordinance. Registration of the F.I.R. and subsequent cognizance taken by the learned Magistrate in these circumstances is void, ab initio and illegal. It is settled law that without adopting the specific procedure provided under the law, all the subsequent proceedings on the basis of said initiation and taking of the cognizance are always taken as unlawful and void. West Pakistan Pure Food Ordinance, 1960 is a special law which prevails on the general law of the land i.e. Code of Criminal Procedure. Herein this case, as the complaint was never lodged by the authorized person as provided under section 32 of the Ordinance ibid, therefore, registration of F.I.R. and subsequent proceedings are illegal and cannot be taken as lawful and sustainable in the eye of law. The judgment cited by the learned counsel for the petitioner is fully applicable to the facts and circumstances of the present case. 5.? far as application of sections 272 and 273, P.P.C. is concerned, these offences are non-cognizable and in case of a non- cognizable offence F.I.R. under section 154, Cr.P.C. cannot be registered directly. The procedure for information and further action in non-cognizable cases is provided under section 155 of Cr.P.C. Basically it is an information which is to be provided to the concerned Police Officer/ Incharge of a Police Station in case of commission of a non-cognizable offence then it is to be recorded in the book kept in the Police Station for the said purpose and that information is forwarded to the concerned learned Magistrate and after getting his permission the investigation can be further carried on. In this case no such procedure has been followed by the police and' F.I.R. was registered and challan subsequently was submitted in the trial court. In these circumstances, registration of F.I.R. in non- cognizable offence is also illegal. 6.? what has been discussed above, this petition is allowed and the case F.I.R. No.148 of 2010 dated 13-3-2010 under sections 21/23(c) of West Pakistan Pure Food Ordinance, 1960 read with sec?tions 272, 273 and 420, P.P.C. registered at Police Station City Khanewal is hereby quashed, resultantly, all the proceedings pending before the learned 'trial court are declared as null and void.

7. Before parting with the judgment it is to be clarified that so far as initiation of the action under sections 272 and 273, P.P.C. is concerned, as the complainant has submitted the application before the S.H.O. concerned, therefore, it is for the concerned police to proceed further with the investigation and initiation of the proceedings against the accused in accordance with law. N.H.Q./M-865/L???????????????????????????????????????????????????????????????????????????????? F.I.R. quashed.