This Petition has called in question order of Judicial Magistrate, Noshki dated 9-9-2004 and order passed by Sessions Judge Noshki dated 31-12-2004.
2. Facts of the case are that the petitioner is a Motor Driver of Bus No,QAH.8234 Quetta to Dalbandin.
It was stated that on 16-8-2004 at 4-00 p.m., when he reached from Quetta to Dalbandin near Galangoor Check Post in Noshki area the Levies personnel i,e, Respondent No,3 stopped bus. It was further stated that said bus was loaded with rice 72 bags weighing 50 Kgs. Each and 25 bags of rice weighing 25 Kgs. Each were taken into possession and the bus was detained under section 22/112, 44/106, 90/112, 3/112 of Motor Vehicle Ordinance, 1965. It was further stated that the rice recovered were detained under section 3/7 of Food Stuff (Control) Act, 1958.
3. The Challan was submitted before the Judicial Magistrate Noshki in respect of both offences, which was decided on 9-9-2004. The record shows that petitioner pleaded guilty and was convicted under section 6 of Food Stuff (Control) Act, 1958 and fine of Rs,3,000 was imposed and in default of payment of fine to further undergo 10 days S.I. The articles recovered i,e, rice were directed to be confiscated in favour of State.
4. Against the aforementioned order of forfeiture of rice petition was filed before the Court of Sessions Judge Noshki and the learned Sessions Judge came to the conclusion (i) that the petition is time-barred (ii) that the petitioner has pleaded guilty and thus the articles have been rightly confiscated.
5. After dismissal of Revision Petition this Petition under section 439 and section 561-A, Cr.P.0 was filed. Mr. Nazir Durrani, Advocate appeared on behalf of petitioner while Mr. Amanullah Tareen, Assistant Advocate-General appeared for State.
6. It has been contended by the learned Counsel for the petitioner that petition was competently filed under section 561-A Cr.P.0 and this Court has the jurisdiction to adjudicate upon the matter.
The learned Counsel has referred Judgments reported in 1996 SCM R 1476, 1995 SCMR 1689. It was further claimed that the learned revisional Court has wrongly concluded that petition was time barred as the order was made on 9-9-2004 and petition was filed on 7-12-2004. It was further stated that Levies Hawaldar had no authority under law to take into custody said articles and he has not been dealt with in accordance with Articles 4, 23 & 25 of the Constitution of Islamic Republic of Pakistan. The learned counsel appearing for the State has contended that the petitioner has not challenged the order of fine to the tune of Rs,3,000 and has only sought release of rice confiscated. He has also stated that petitioner is not an aggrieved person within the meaning of Criminal Procedure Code and according to him he was only carrier of the rice, which belonged to four persons as mentioned in the memo. Of petition. It was further stated that the petitioner having pleaded guilty cannot turn around and claim the said articles.
7. In order to appreciate the contentions of the learned counsel for the petitioner is it necessary to examine the law applicable to the area. The Balochistan Food Stuff (Control) Act, 1958 is applicable to the area and it has further been extended to tribal areas by the then Governor of Balochistan with the approval of President of Pakistan vide Amendment on 21-7-1971. The Government of Balochistan has further notified the Food Control Order, 1990 whereby areas have been specified. It has declared border areas as also the persons who can competently take into custody the foodstuff being taken without legal permit or licence have been given in section 2-C(iv)(a) of said order. The same is reproduced as under:-- "2-C(iv) (a) An Assistant Director Food a District Food Controller, an Assistant Food Controller, or any other Gazetted Officer of the Food Department, a District Magistrate, a Revenue Officer not below the rank of Naib-Tehsildar, a Police Officer of not below the rank of Sub-Inspector; Officer of Pakistan Rangers not below the rank of Havaldar/Head Constable commanding a patrol or a post and the Junior Commissioned Officers of the Civil Armed Forces and the Levies Risaldars; and" The Levies Hawaldar is quite competent to take into custody rice being taken without permit or licence.
8. In order to further appreciate the above contentions it is to clarify that the petitioner himself had come forward and admitted the guilt and having accepted the violation of law committed by him cannot turn around and say that the said order is illegal on the ground that Havaldar of Levies was not competent to take into possession. As reproduced above section 2-C(iv)(a) of Food Stuff (Control) Order, 1990 clearly authorizes the Havaldar Levies to take into possession the vehicle and rice intended to be smuggled towards border area. It has not been denied that the area from where the rice was taken into custody was not a prohibited area of the border. Moreover, there is a substance in the contention raised by the learned counsel for the State that rice belonged to Muhammad Ayaz, Ali Muhammad, Muhammad Naeem and Ghulam Sarwar and there was no occasion for the petitioner to have filed application seeking release of same. The learned counsel for the petitioner has also contended that there exist violation of Articles 4, 23 and Article 25 of the Constitution of Islamic Republic of Pakistan. It is to note that the petitioner has not challenged the vires of law before the revisional Court or before this Court and during course of arguments for the first time this ground has been raised. The learned counsel for the petitioner has failed to point out as to how he has not been dealt in accordance with law or treated discriminately. The learned counsel for the petitioner further was urged and stressed that there is violation of Article 23 of the Constitution of Islamic Republic of Pakistan. The Article 23 of Constitution is reproduced as under:- "23. Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restriction imposed by law in the public interest."
The said Article also provides that property of citizen cannot be taken. However, the said provision is subject to the Constitution and restriction imposed by law in the public interest. These are laws enacted by the legislature for reason to protect the smuggling of food stuff in the border area. The law referred to above i,e, Balochistan Border Area Food Stuff (Control) Act, 1958 and Food Stuff (Control) Order, 1990 clearly prohibit movement of food stuff described in the schedule in the border area in order to restrict smuggling to other countries. There is no violation of either Article 4, and Article 25 of the Constitution of Islamic Republic of Pakistan. The contention of the learned counsel that it is also violation of Article 23 is also incorrect.
The petitioner is not entitled to transfer the foodstuff unless he has valid lawful permit granted by the competent authority in this behalf. The present petition thus has no force is accordingly dismissed.