P L D 1993 Karachi 1 (PLP)

This application filed under section 561-A, Cr.P.C. involves a somewhat important point of law on which there does not seem to be any direct authority of our own High Court.

2. Abdul Ghani Dars, the respondent No.2, besides being MPA, Sindh is a member of Sugar Control Board and also a big Zamindar of Taluka Tando Allahyar, District Hyderabad. On 31-1-1990 he filed a direct complaint against Haji Hashim, Managing Director, Haji Daud, Resident Director, Muhammad Ibrahim, Director, Muhammad Sulleman, Technical Director, Muhammad Hussain, Director, Muhammad Oasim, Director, Shahid Muhammad Khan, General Manager (applicant No.1), Rao Muhammad AIL Ca5ne Manager (applicant No.2), and Abdul Aziz Memon, Accounts Manager (applicant No.3), of M/s. Mehran Sugar Mills Ltd., Tando Allahyar, for the violation of Rules 13(2) and 14(7) of the Sugar Factories Control Rules, 1950, punishable under section 21(a) of the Sugar Factories Control Act, 1950. The learned Civil Judge and F.C.M. Tando Allahyar, to whom the complaint was transferred took cognizance against the applicants for the offence under section 21(a) of the Sugar Factories Control Act, 1950, read with section 406, P.P.C. vide order, dated 3-6-1990. The complaint filed against rest of the accused persons who are Managing Director, Resident Director, Technical Director and Directors of M/s. Mehran Sugar Mills Ltd., Tando Allahyar was, however, dismissed under section 203, Cr.P.C. The ' applicants have now invoked the inherent jurisdiction of this Court seeking quashment of proceedings pending against them in the Court of Civil Judge and F.C.M. Tando Allahyar.

3. It is alleged that the applicants had unauthorisedly deducted the amount of transport charges without the consent of respondent No.2, and the permission of Cane Commissioner, Sindh, in violation of Rule 13(2) of the Sugar Factories Control Rules, 1950. It is also the case of respondent No.2 that the applicants enhanced the transport charges in the year 1987-88 without the permission of Cane Commissioner, Sindh, in violation of Rule 14(7) of the Sugar Factories Control Rules, 1950, an offence punishable under section 21(a) of the Sugar Factories Control Act, 1950.

4. Admittedly the applicants are the employees of M/s. Mehran Sugar Mills Ltd. Tando Allahyar, being the General Manager, Cane Manager and Finance Manager, respectively. There is also no dispute that sugarcane growers who do not have their own arrangement for lifting of their crop, request the Mills Management to make arrangements on their behalf for haulage of their crop from their fields to the Mills for which Mills Management hire trucks for lifting of cane of such Zamindars, the fare is paid by Mills Management on behalf of cane growers/suppliers which is subsequently deducted from their sale proceeds. It is pleaded on behalf of the applicants that this service is provided without any profit or gain, just to facilitate the cane growers to supply their sugarcane.

5. Rule 13(2) of the Sugar Factories Control Rules, 1950, which is alleged to have been violated by the applicants provides as follows:-- "The occupier. of a factory or a purchasing agent shall not make any deduction from the amount due for cane sold to him by a Cane Grower or a Cane Growers' Cooperative Society except such ,deduction as may be prescribed or as the Provincial Government may, by notification, from time to time, allow."

6. Rule 14(7) of the Sugar Factories Control Rules, 1950, again lays down as follows:

"When transport is provided by the occupier of the factory he may deduct the cost of transport according to the rate fixed by the Cane Commissioner. (i) Deduction may be made, if cane is definitely below the average of standard cane for the area on account of delay in transport or natural cause, e.g., serious water logging, intensive insect general instructions for the guidance of the occupier in regard to the extent to which such deductions are to be made and in cases of dispute the decision of the Cane Commissioner will be final."

7. The question that has been raised in this application filed under section 561-A, Cr.P.C. thus relates to the interpretation of the term "occupier of a factory" who in fact is made liable for the violation of the aforesaid rules. The word "occupier of a factory' as defined by section 2(k) of the Sugar Factories Control Act, 1950, means the person who has ultimate control over the affairs of a factory: provided that where the affairs of a factory are entrusted to a Managing Agent, or a Managing Director or a Director incharge, such Managing Agent, Managing Director or Director Incharge shall be deemed to be the occupier of the factory. Rule 2(iii) of the Sugar Factories Control Rules, 1950, again defines this word as follows:-. 'Occupier of a factory' means the person who has ultimate control over the affairs of a factory."

8. Section 19 of the Sugar Factories Control Act, 1950, provides for the determination of "occupier" for the purpose of this Act in the following words:

"Determination of 'occul2ier' -for purpose of this Act.--(l) Where the occupier of a factory is a firm or other association of individuals any one of the individual partners or members thereof may be prosecuted and punished under this Act for any offence for which the occupier of the factory is punishable: Provided that the firm or association may give notice to the Collector that it has nominated one of its members to be the occupier for the purpose of this Act until further notice cancelling his nomination is received by the Collector or until he ceases to be a partner or member of the firm or association. (2) Where occupier of a factory is a company, any one. of the Directors thereof, or, in the case of a private company, any one, of shareholders thereof, may be prosecuted and punished under this Act for any offence for which the occupier of the factory is punishable: Provided that the company may give notice to the Collector that it has nominated a Director, or, in the case of a Private Company, a share holder, to be the occupier of the factory for the purposes of this Act and such Director or shareholder shall be deemed to be the occupier of the factory for the purposes of this Act, until further notice cancelling his nomination is received by the Collector or until he ceases to be a Director or shareholder.-

9. It is thus obvious, that none of the applicants falls within the definition of 'occupier' and they cannot be held liable for the alleged violation of Rules 13(2) and 14(7)' of the, Sugar Factories Control Rules, 1950. In fact the accused against whom t ' he complaint was dismissed were covered by the definition of "occupier of factory". The respondent No.2, however, did not challenge the order passed against them under section 203, Cr.P.C. and he should thank himself for this situation. The proceedings against the applicants, therefore, amount to the abuse of process of law and are thus liable to be quashed on this score alone.

10. The cognizance taken against the applicants, for the offence under section 406, P.P.C. alongwith a case under section 21(a) of the Sugar Factories Control Act, 1950, has again no legal sanctity. Both these offences, one being under special law and the other under general law cannot be tried together. Even otherwise it was not a case of criminal breach of trust. The proceedings against the applicants are thus liable to be quashed on this ground also. It was obviously for this reason that the learned AA.-G. has also supported the prayer of the applicants.

11. Before I take leave I would like to dispose of a legal objection raised by Mr. Ashique Hussain Leghari learned counsel for respondent No.2, who has contended that the applicants ought to have moved the trial Court for acquittal under section 249-A, Cr.P.C. before invoking the inherent jurisdiction of this Court. The learned counsel for respondent No.2, should have known that a complete answer to this objection is provided in the cases of Mian Munir Ahmad v. The State reported in 1985 SCMR 257, Ghulam Ali v. Javid and another reported in 1989 PCr.LJ 507, and Zahid Hussain v. The State and 8 others reported in 1990 PCr.LJ 1209. In the first cited authority the Supreme Court observed as follows:-- "That the powers of the trial Court under sections 249-A, Cr.P.C. and 265-K, Cr.P.C. are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C. and both can be resorted to. It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C. directly."

12. For the reasons given above, I accept this application made under section 561-A, Cr.P.C. and direct the quashment of above proceedings pending E against the applicants in the Court of Civil Judge and F.C.M. Tando Allahyar. N.H.Q./S-920/K Proceedings quashed.