2003 PLP 893 (YLR)

Ainuddin Khan, Addl. A.‑G. for Respondents. SABIHUDDIN AHMAD, J.‑‑‑The petitioners, who claimed to be manufacturers and suppliers of Gutka and Manpuri under licence from the Karachi Metropolitan Corporation appeared to be aggrieved by an order dated 22‑4‑2000 of the District Magistrate, Karachi (West) the operative part whereof may be reproduced as under:‑‑ "Whereas, it has been made to appear before me that there is a danger to health and human life due to the use of Gutka, which has been declared through laboratory tests to be hazardous to the health, lives of the general public. And whereas I am satisfied that it is expedient to take immediate measures against the manufacture, sale and consumption of 'Gutka' which are made from opium water, low grade chhalia, non‑edible Katha and other hazardous material. Now, therefore, I Capt. Muhammad Rizwan Taqi, District Magistrate, Karachi (West) in exercise of power vested in me under section 144, Cr.P.C. do hereby prohibit the manufacture, sale and consumption of Gutka, in District Karachi (West) with immediate effect. This order shall remain in force for a period of two months unless withdrawn or modified earlier." The only question raised by Mr. Raja Mir Muhammad Khan, learned counsel for the petitioners is that identical order was passed by the same District Magistrate i.e. respondent No.3 on 21st February, 2000 and upon expiry of the period of two months he passed the impugned order in an identical term. Learned counsel contends that under section 144(1), Cr.P.C. a prohibitory order of the aforesaid kind could be passed by the District Magistrate only for a period of two months and in case the restriction was necessary to operate for a further period in cases of danger to human life, health or safety or likelihood of a riot only the Provincial Government could pass an order under section 144(6), Cr.P.C. The above question was considered in detail by a Division Bench of this Court in Constitutional Petitions Nos. D‑279, 288 and 297 of 1999 at Hyderabad Circuit in which one of us (Mr. Justice Sabihuddin Ahmed) was a member and it was held that a District Magistrate could not pass an order of the same nature, after expiry of the two months' period. Mr. Ainuddin Khan, learned Additional Advocate‑General attempted to argue that the impugned order was passed after the expiry of the first one but this contention was also repelled in the above mentioned judgment as well as in an earlier Division Bench judgment in Ch. Abdul Aziz v. District Magistrate, Sukkur (PLD 1980 Karachi 333) and the Lahore High Court in Niaz Muhammad v. District Magistrate, Bahawalpur (PLD 1975 BJ 36). For the foregoing reasons, this petition is allowed and the impugned order is A declared to be without lawful authority and of no legal effect. H.B.T./M‑421/K Petition allowed.