1968 P Cr (PLP)

DORAB PATEL, J.‑The respondents were convicted by the Additional District Magistrate Mianwali, on the 25th of October 1963,under section 6 of the West Pakistan Foodstuffs Control Act 1958, for possession of 85 bags of rice in contravention of the provisions of the West Pakistan Food grains Licensing (Control) Order, 1957, and sentenced to two years rigorous imprisonment each. The respondents filed an appeal against their conviction an the Court of Sessions Judge Mianwali, and by his Judgment dated the 10th February 1964, the learned Sessions Judge allowed the said appeal and acquitted all the respondents. The State has filed an appeal against the said acquittal.

2. According to the prosecution, on the 8th of February 1963, at about 11‑00 p.m., truck No. R I A 1185 owned by the Nauroz Goods Forwarding Agency, Rawalpindi was stopped by A. S.

1. Ali Asghar Shah P. W. in Mianwali District Border Post, Furlong No. 4, Mile No. 9 Quaidabad Harnoli Road, and found 3o contain 85 bags of basmati rice. The first respondent Fateh Khan was the driver of the said truck, and the other respondents were with him on the said truck. The respondents were arrested, but later released on bail and the said Asghar Ali Shah forwarded a report for the prosecution of the respondents under the West Pakistan Foodstuffs (Control) Act. The respondents were first charged under the said Act, for bringing 85 bags of rice in the truck from Sargodha district (which was a controlled area under the said Act) into Mianwah district (which was an un‑controlled area under the said Act), without a permit, and thereby committing breach of section 3 of the West Pakistan Supplementary Paddy and Rice (Control) Order, 1958 (hereafter called the Supplementary Control Order). On the 11th of June 1963, the respondents were also charged for being in possession of the said bags of rice without a permit, in violation of section 5 of the West Pakistan Food grains Licensing (Control) Order, 1957. The defence of the respondent Fateh Khan was that he was a driver, of the owner of the truck, and he was driving the truck With the bags of rice from Rawalpindi to Multan on the orders of Haji Khair Muhammad & Company of Multan, the owners of the rice bags. The second respondent first stated that he had merely taken a lift in the truck, and then admitted that he was a servant of the owner of the truck, but he asserted that he had nothing to do with the bags of rice. The third respondent stated that he was a servant of the owners of the truck, and was on the truck on their instructions. The learned Magistrate acquitted the respondents on the first charge of transporting the rice illegally from Sargodha a controlled district, into Mianwali without a permit. He rejected the defence of the respondents that they were merely the agents of a carrier for transporting the rice bags, and he held that they were the owners of the rice bags. Accordingly, he convicted all the respondents to two years' R. I. for contravention of section 5 of the Licensing (Control) Order. The appeal of the respondents was allowed by the learned Sessions Judge, Mianwali on the grounds that the Licensing (Control) Order had been repealed and was not in force at the date of the alleged offence.

3. It is, therefore, necessary to consider the relevant legislation under which the respondents were convicted. On the 6th of April 1957, the President promulgated the President's Ordinance of West Pakistan, No. 1 of 1957 to "control the supply, distribution and movement of, and trade and commerce in, foodstuffs in West Pakistan", section 2 of the said Ordinance enacted that foodstuffs include rice and paddy and that "Government" meant the Government of West Pakistan, and section 3 of the said Ordinance, in so far as it is relevant, stated as follows: "3. (1) The Government, so far as it appears to be necessary or expedient for maintaining supplies of any foodstuffs or for securing its equitable distribution and availability at fair prices, may, by notified order, provide for regulating or prohibiting the keeping, storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption thereof and trade and commerce therein. (2) Without prejudice to the generality of the powers conferred by subsection (1) and order made thereunder may provide (a)

(b) for controlling the prices at which any foodstuff may be bought or sold: (c) for regulating by licences, permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any foodstuffs. (d)

(e) for requiring any person holding stock of any foodstuff to sell the whole or a specified part of the stock to such persons or class of persons or in such circumstances as may be specified in the order (f)

(g)

(h)

(i) for any incidental and supplementary matters including, in particular, the entering and search of premises, vehicle, vessels and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order bas been, is being, or is about to be committed, or any records connected therewith, the grant or issue of licences, permits or other documents, and the charging of fees thereof. (3)

(4)

In exercise of the powers conferred under this section, on the 15th of April 1957, the Governor of West Pakistan issued the West Pakistan Food grains Licensing (Control) Order, 1957, (hereafter called the Licensing (Control) Order) under the Licensing (Control) Order, no person can hold for his own consumption more than the normal quantity of rice as prescribed in the said Order. On the 23rd October 1957, the West Pakistan Foodstuffs (Control) Ordinance, 1957, being Ordinance XI of 1957 was enacted and the President's Ordinance No. 1 of 1957 was repealed, but it was specifically provided that all Orders passed under section 3 of the President's Ordinance would continue to be in force. Finally on 23rd April 1958, the West Pakistan Foodstuff's (Control) Act of 1958 (hereafter called the said Act) was enacted and Ordinance XI of 1957 was repealed. It may be pointed out that unlike Ordinance XI of 1957 there was no specific provision in the said Act saving Orders passed by the Governor under Ordinance XI of 1957. However, all such orders would be saved by the provisions of the General Clauses Act. Unfortunately the learned Sessions Judge did not consider the provisions of General Clauses Act, and came to the conclusion that the Licensing (Control) Order had ceased to be valid when West Pakistan Ordinance XI of 1957 was repealed.

4. The effect of the repeal of Ordinance XI of 1957 on the Licensing (Control) Order has been considered by a bench of this Court in Muhammad Waris Shah v. The Province of West Pakistan (P L D 1959 Lah. 898). At page 913 of the said judgment Mr. Justice Kaikaus observed as follows :‑ "Ordinance XI of 1951 was repealed by the West Pakistan Foodstuffs (Control) Act, 1958 (section 14) and by virtue of section 23 of the West Pakistan General Clauses Act, 1956, the orders which were continued in force by this Ordinance remained in force. In accordance with section 23 of the General Clauses Act whenever an enactment is repealed and re‑enacted, any order promulgated under it is deemed to have been promulgated under Act by which it is repealed and re enacted. By virtue of section 28 provisions relating to "Acts" apply also to "Ordinances" and "Regulations" so that although section 23 applies in, terms only to Acts, it is applicable to Ordinances also." Accordingly the Court held that the Licensing (Control) Order continued to be in force, despite the repeal of Ordinance XI of 1957. We have no hesitation in following this judgment, and we hold that the finding of the learned Sessions Judge that the Licensing (Control) Order had elapsed was erroneous. However, in view of the said finding, the learned Sessions Judge acquitted the respondents, and did not examine the finding of the learned Magistrate that the respondents were in possession of the bags of rice in contravention of the Licensing (Control) Order. Therefore, we have to examine the said evidence and decide whether the respondents were rightly convicted for having illegal possession of the bags of rice found on the‑truck.

5. The prosecution examined several witnesses, but the witnesses gave evidence about the recovery of the bags of rice from the truck, and about the alleged infringement by the respondents of section 3 of the Licensing (Control) Order by transporting the rice bags from Sargodha district into Mianwali district without a permit. The respondents never denied that the bags .of rice were in the said truck, and they have been acquitted on the charge of contravening the Supplementary Control Order. Therefore, the evidence of the prosecution witnesses is completely irrelevant to this appeal. As to the evidence of the respondents, only the evidence of Ghulam Muhammad and Abdur Rahim is relevant to this appeal. Ghulam Muhammad D. W. 2 stated in evidence that he was an agent of the firm of Haji Khair Muhammad & Company of Multan and that his firm was licensed under the Licensing Control Order, and he produced the Licence Exh. D. A. of his firm. He said that he had gone to Rawalpindi to purchase rice and on the 7th of February 1963, he purchased 85 bags of rice from the firm of Haji Dost Muhammad Ghulam Muhammad of Rawalpindi, and paid them Rs. 9,100 for the said purchase on 13‑2‑63, vide receipts Exh. D. B. and D. B/1. He has also said that on the 8th of February 1963, he hired truck No. R I A/1185 to transport the said bags of rice to his firm in Multan, and that the first respondent was the driver of the said truck. Abdur Rahim D. W. 3 was a Munshi of the firm of Haji Dost Muhammad‑Ghulam Muhammad of Rawalpindi. He said that his firm had a licence under the Licensing Control Order, and that his firm had sold 85 bags of rice to Haji Khair Muhammad & Company of Multan on the 7th of February 1963. He also identified the receipts Exhs. D. B. and D. B/ I for the price paid by Haji Khair Muhammad & Company, and said that the receipts were signed by one Yaqoob Hussain Naqvi who was in India. He also produced the stock register of his firm, in which sales and purchase were entered, and he identified the sale of the said bags of rice to Haji Khair Muhammad & Company of Multan at page 106 of the register, which even showed that the weight of the rice was 212 maunds and 20 seers. The Court examined two witnesses Mr. Parvez Latif, C. W. 1, was a junior clerk in the office of the District Food Controller, Multan. In his evidence, he admitted that the licence Exh. D. A. issued to the firm of Haji Khair Muhammad of Multan was valid, but in cross examination of the prosecution, he said that the licence was only for the purchase and sale of rice within the Multan district, and that licences for dealing in rice outside the district of Multan were issued separately. Aurangzeb C. W. 2 was a Food Inspector of Rawalpindi, and stated that the licence of the firm of Haji Dost Muhammad‑Ghulam Muhammad of Rawalpindi had expired on the 5th of June 1962. He supported the evidence of Parvez Latif. The evidence of the Court witnesses would have been relevant to the prosecution either of the firm of Haji Dost Muhammad Ghulam Muhammad of Rawalpindi or the prosecution of Haji Khair Muhammad & Company of Multan. It has no relevance to the prosecution of the truck driver and the other servants of the owner of the truck in question. Further we are of opinion that there was no evidence whatever to controvert the fact that the firm of Haji Khair Muhammad had purchased the 85 bags of rice in dispute, and that these bags were being transported on their instructions to Multan, when they were seized. However, the learned Magistrate has held that the respondents were in possession of these bags of rice in an illegal or improper manner and he convicted them, to two years' R. I. each. In order to come to this conclusion, the learned Magistrate had to find some way of explaining away the evidence of Ghulam Muhammad D. W. 2 and Abdur Rahim D. W.

3. The learned Magistrate appears to have held that the evidence of Ghulam Muhammad D. W. 2 could not be, relied upon, because he did not accompany the truck with the bags of rice to Multan. The learned Magistrate did not accept the evidence of Abdur Rahim D. W. 3 because the person who sold the rice on behalf of Haji Dost Muhammad Ghulam Muhammad was not examined. Abdur Rahim had produced the stock register of his firm. As these books are kept in the ordinary course of business, there is a presumption of their correctness. Their correctness was not challenged in cross examination and, therefore, as far as the evidence of Haji Ghulam Muhammad‑Dost Muhammad of Rawalpindi is concerned, they have given sufficient evidence of the sale by them to Haji Khair Muhammad & Company. Similarly, we think it unfortunate that the learned Magistrate rejected the evidence of Ghulam Muhammad of the firm of Haji Khair Muhammad of Multan on the extraordinary grounds that he could not be believed because, he did not sit on the bags of rice, and have them transported under his custody to Multan. Finally, we find that the finding of the learned Magistrate has also been affected by the opinion of the Court witnesses, Mr. Parvez Latif and Mr. Aurangzeb. The licence Exh. D. A. issued to Haji Khair Muhammad merely states that the licensee shall carry business at Multan. In our opinion, there is nothing in this condition to make it a criminal offence for the licensee to purchase rice outside Multan. As a matter of fact, Parvez Latif C. W. 1 has stated that the licence Exh. D. B. was valid for purchase and sale within Multan and that licences for dealings outside Multan were issued separately. We are not aware whether the statement of Parvez Latif. P. W. 1, that licences were issued separately for purchases of rice outside Multan, is correct or not. There was no evidence whatsoever before the Magistrate to accept the contention of Mr. Parvez Latif. At the highest, the evidence of Mr. Parvez Latif that under their licence, Haji Khair Muhammad could only purchase rice in Multan District was a statement of his own opinion on a question of law not free from doubt. We are, therefore, con strained to express our regret that the learned Magistrate should have treated the opinion of a junior clerk as a statement of the law, and convicted the respondents on such evidence. Accordingly we have no hesitation in holding that the bags of rice in question belonged to Haji Khair Muhammad & Company of Multan, and that the respondents were merely the servants of the carrier for transporting this rice from Rawalpindi to Multan.

6. The learned counsel for the appellant has submitted that the respondents are guilty of the alleged offence, even as servants of the carrier, because the transport of the said rice constituted an offence under the Licensing Control Order. The submission is that the said bags of rice, weighing 212 maunds and 20 seers; exceeded the normal quantity prescribed under the Licensing Control Order. Under Clause 2 (xii) of the said Order, no person can hold more than the normal quantity of rice but in the case of a producer, he is allowed to keep a larger quantity for his personal consumption and other needs. Under sub‑clause 12 of section 2, "normal quantity" is defined as follows:‑ (xii) "Normal quantity" means the quantity specified below or such quantities as the Provincial Government may notify from time to time namely‑ (a) In relation to a person other than producer, the quantity required by him for his consumption or that of his house hold at the scale of half a seer of Food grains per day for himself and for each member of his house hold for a period of 4 months. (b)

These provisions do not apply to dealers in foodstuffs, but dealers in foodstuffs can carry on business only by obtaining licences from the Licensing authority, and they are bound by the instructions and orders of the Licensing authority. It is obvious that if dealers could not store more than the "normal quantity" of foodstuffs they would not be able to carry on business and therefore appropriate provisions were made in the said order. The Licensing Control Order does not make any specific provision for the transport of foodstuffs by carriers. If the argument of the appellant is accepted, it would mean that a carrier would not be able to transport in. his conveyance foodstuffs in excess of the normal quantity as defined under sub‑clause (xii) of section 2 of the Licensing Control Order. This would make the transport of foodstuffs from place to place totally impossible, and instead of facilitating the objects of the said Act, the effect of this would be to paralyse the proper distribution of foodstuffs. Prima facie, there fore, the Licensing. Control Order does not appear to us applicable to carriers, and the normal quantity prescribed is only the quantity that citizens can hold for their personal consumption and use. This is very clear from the language of sub‑clause (xii), which we have already quoted. As a matter of fact, the relevant provisions affecting carriers are contained in the Supplementary Control Order, in respect of which the respondents have been acquitted. This order was issued on the 15th of October 1958. It restricts the right of any person even to transport rice, and section 3 states that no person shall carry or transport rice exceeding five seer within areas prescribed under the said order without a permit from the Director appointed under the said Order. Therefore, it appears to us that the Licensing Control Order under which the respondents were convicted, was not applicable to them.

7. We are fortified in our opinion by the provisions of the West Pakistan Foodstuffs (Control) Act, 1958. However, the learned counsel submits that his case is also based on the pro visions of the said Act especially sections 3 and 8 of the said Act. We have, therefore, to examine these provisions. Section 3 of the said Act (which replaced section 3 of the previous Ordinances and is identical to section 3 in both the said Ordi nances) confers very wide powers on the Government to regulate the sale and transport of rice. But the power to regulate does not include a power to prohibit the sale or transport of rice, and we have no doubt that if the provisions of the Licensing Control Order were made applicable to carriers, this would not amount to a regulation of their business, but to a prohibition of that business. In this connection the provisions of section 6 of the said Act are very relevant and we, therefore, set them out hereunder. Section 6 states as follows:‑ "6. (1) If any person contravenes any order made under section 3, he shall be punished with imprisonment for a term which may extend to three years or with fine, or with both and, if the order so provides any Court trying such contravention shall direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to the Government, unless for reasons to be recorded in writing, it is of the opinion that, the direction should not be made in respect of the whole, or as the case may be a part of the property. (2) The owner of any vessel, conveyance or animal carrying any property in respect of which an order under section 3 is contravened, shall, if the carrying is part of the transaction involving the contravention and if he knew or had reason to believe that the contravention was being committed, be deemed to have contravened the order and, in addition to the punish ment to which he is liable under subsection (1), the vessel, conveyance, or animal shall when the order provides for forfeiture of the property in respect of which the order is contravened, be forfeited to the Government. (3)

Therefore, the Legislature has imposed a restriction on the power of the Government to pass Orders for the regulation of the business of transporting foodstuffs. Mens rea has been specifically made an ingredient of an offence by the carrier under the said Act. Therefore, in the absence of knowledge by the respon dents that the transport of the bags of rice from Rawalpindi to Multan on the instructions of Haji Khair Muhammad & Company was illegal, there was absolutely no basis for the prosecution of the respondents. Confronted with this difficulty, the learned counsel for the appellant submitted that he relied on the provisions of sections 8 and 12 of the said Act. Section 8 states as follows:‑ "

8. If the person contravening an order made under section 3 is a company or other body corporate, every director, manager, secretary, or other officer or agent thereof shall, unless he proves that the contravention took place without his know ledge or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention." The submission of the learned counsel for the appellant is that the truck driver and cleaners of the owner of a truck are his officers or agents with the meaning of section

8. In the first place, a cleaner or a driver of a truck is not an officer or agent of the owner of the truck in normal parlance. The submission of the learned counsel is contrary to all canons of construction. The words "other officer or agent" in section 8 come after the words "every Director, Manager and Secretary". As Directors, Managers and Secretaries constitute a class generally described as the Unanagerial class, who run a corporation, it is clear that the word "other" in section 8 has to be construed ejusdem generis with the preceding words, and therefore these words "other officer or agent" can only mean those employees of a corporation who are managing the affairs of the corporation. Accordingly even on the assumption that the Nauroz Goods Forwarding Agency, who owned the truck, are a corporation, the respondents would not be liable to prosecution under section 8 of the said Act. However, the prosecution has not produced any evidence whatever to show that the Nauroz Goods Forwarding Agency was a Corporation. On the contrary, according to the statement of the respondent Fateh Khan, the owners of the truck were Ahmad Sher and others, and this would suggest that the truck was owned by a firm. Therefore, the provisions of section 8 which relate only to corporations, have no relevance to the appeal.

8. The only other relevant provision under the said Act, which requires consideration, is section

12. Section 12 states as follows :‑ "Where any person is prosecuted for contravening any order made under section 3 which prohibits him from doing an act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other document, shall be on him.

9. The respondents were originally prosecuted both under the Licensing Control Order and the supplementary Control Order. They were acquitted under the Supplementary (Control) Order, and no appeal was filed against the said acquittal. It is further admitted at the bar that the route taken by the truck from Rawalpindi to Multan was a route for which no permit was required under the Supplementary (Control) Order. This was the only Order passed under the said Act under which the respon dents, who were the servants of a carrier, could have been prosecuted. We have pointed out that tine provisions of the Licensing Control Order do not apply to carriers or their servants. Therefore, the respondents did not require any permit for trans porting the rice under the Licensing Control Order and the conviction of the respondents by the learned Magistrate is illegal and cannot be upheld. In consequence, there has been no infringement of any provisions of the said Act in respect of which the respondents had to show under section 12 that they had the custody of the bags of rice lawfully. However, the respondents have produced evidence which shows that they had the custody of the rice lawfully in their capacity as carriers, on the instructions of Haji Khair Muhammad & Company who were the owners of the said bags of rice. The prosecution has not produced any evidence to rebut this evidence, and even if there was any burden on the respondents under section 12 of the said Act to show that they were carrying the said bags of rice lawfully, they have fully discharged that burden. There is no merit in this appeal, which is dismissed. Appeal dismissed.