Muhammad Akram, petitioner was tried by Summary. Military Court No. 9, Faisalabad, for offences under M. L. O. No. 5 (Zone 'A') read wish M. L. R. No. 14, and section 3/6 of Foodstuffs (Control) Act, 1958. He was convicted and sentenced to 6 months' rigorous imprisonment and fine of Rs. 50,000 (Rupees fifty thousand) and in default of payment of fine be was ordered to undergo rigorous imprisonment for a period of 6 months.
Muhammad Akram, petitioner, has assailed his conviction and sentence by means of this writ petition. This judgment will dispose of the same.
2. It is alleged by the prosecution that a raiding party arranged by the Food Department recovered 440 bags of wheat from the possession of the petitioner, who was hearding the same without lawful authority and thereby committed the offences under M. L. O. No. 5 (Zone 'A) read with M. L. R.
No. 14, and section 3/6 of Foodstuffs (Control) Act, 1958. The raid took place an 8th November 1978 .
3. Prosecution produced Ch. Abdul Aziz, Assistant Food Controller (Enforcement). P. W. 1; Muhammad Azhar, Food Grain Inspector, P. W. 2; Rana Muhammad Azim. Enforcement Inspector, P.
W. 3; and Ghulani Muhammad, A. S. I , P. W. 4.
4. The petitioner/accused denied the allegations of the prosecution. He stated that the wheat in dispute in fact belonged to one Habib Ahmad and Allah Ditta and that he was working as their Munshi at a monthly salary of Rs. 300 per month. He stated under the law a producer could transport his wheat to the market for sale. According to him he took this wheat to Adda Muridwala Food Purchase Centre but Mr. Zegham Shah, Food Inspector, refused to purchase the wheat from him and demanded Rs. 100 as illegal gratification. He further deposed that Habib Ahmad and Allah Ditta, his employers, did not agree to give this illegal gratification and they directed him to sell the wheat at Faisalabad. He continued that some of the wheat was damaged due to rain and could be sold only after getting it cleaned. He further stated that he had placed the same in an open space.
He further added that he had been implicated in this case by the staff of the Food Department who was inimical towards him. He further deposed that he had deposited Rs. 2,000 (Rupees two thousand) in Muslim Commercial Bank as security for 200 bags which he wanted to obtain from the Food Department. He produced two defence witnesses, namely Allah Ditta, D. W. 1, and Habib Ahmad, D. W. 2.
5. Ch. Abdul Aziz, Assistant Food Controller (Enforcement), P. W. 1, stated that on 8th November 1978, he was informed by Sub-Martial Law Headquarters in writing that the petitioner was indulging in hoarding and selling of wheat of very low quality and that this wheat was being mixed with water to increase its weight. He also added that on the same day he received a confidential report endorsing the facts mentioned in the report of Sub-Martial Law Headquarters mentioned above. He arranged a raiding party which consisted of Muhammad Azbar Food Grain Inspector P. W. 2; Rana Muhammad Azim Enforcement Inspector P. W. 3, and raided Ghausia Oil Mills Nighahban Pura where the petitioner used to stock and carry out hoarding of wheat. He had hired some accommodation from Ghausia Oil Mills. On reaching the spot they saw 150 bags of wheat outside the room and large quantity of wheat was stacked in two piles in the courtyard of the Mills. He got the wheat filled in the bags and it amounted to 190 bags of wheat. This filling was carried out on 9th November 1978, in the presence of the petitioner. He further deposed that while 150 bags were lying outside there was one room which was locked. The petitioner refused to produce the key and stated that it had been lost. This room was, however, opened on the next day and 100 bags of wheat were found inside the room. Thus the petitioner had hoarded 440 bags of wheat.
Muhammad Azhar Food Grain Inspector, P. W. 2 and Rana Muhammad Azim Enforcement Inspector, P. W. 3, fully supported and corroborated the version of occurrence as given by Ch. Abdul Aziz, P. W.
1. All these witnesses categorically denied that the petitioner was Munshi of Habib Ahmad and Allah Ditta, two cultivators of Chak No. 195/G. B.
Ghulam Muhammad A. S.1. P. W. 4, had taken into possession all the 440 bags of wheat and had arrested the petitioner. He had investigated the case on the basis of formal F.1. R. Exh. 'M'. He recorded the statement of the P. Ws. In the case. The version of the petitioner has been narrated in para. (4) above and need not be reproduced again.
Allah Ditta, D. W. 1, stated that the petitioner was his Munshi and that he sent 200 - bags of wheat in the month of May 1978, for sale at AddaMuridwala but as the same was damaged and the Food Department was not willing to purchase the same he directed the petitioner to sell the same in the market at Faisalabad. He, however, had no knowledge about the place where the wheat was being stacked. Habib Ahmad, D. W. 2, made a similar statement.
6. Record of the case has been produced by Mr. Khalil-ur-Rehman Ramdey, learned Assistant Advocate-General, and has been perused with the help of the learned counsel for the parties and arguments heard.
7. The recovery of 440 bags from his possession is not denied by the petitioner. He has, however, taken the plea that he was acting as a Munshi of two producers namely Allah Ditta and Habib Ahmad. Sections 3/6 of Foodstuffs (Control) Act, 1958 specifically prohibits the hoarding, storage, movement, distribution of Foodstuffs except under a licence. Admittedly the petitioner bad no licence for the purchase, sale or storage or distribution of the food-grain in question. The defence plea is further falsified by the fact that wheat was allegedly given to him by Habib Ahmad and Allah Ditta D. Ws. In May 1978, for disposal and sale. But the petitioner was arrested on 8th November 1978, while he was hoarding 440 bags in the premises of Ghausia Oil Mills. Moreover, the D Ws. i.e. The principals of the petitioner were not aware of the place where the wheat was being stacked by the petitioner. Hoarding is not a term of art. It means amassing and putting away something for future use. The petitioner was hoarding 440 bags of wheat without any licence or authority under the Foodstuffs (Control), Act from the relevant authorities. This enterprise is also an offence under M. L. O. 5 of Zone 'A' read with M. L. R. 14.
In the circumstances discussed above I hold that there was ample material/evidence before the Summary Military Court for the conviction of the petitioner in this case.
8. The aforementioned Martial Law Provisions provide a maximum punishment for a period of term which may extend to 5 years, forfeiture of property and/or whipping not exceeding 20 stripes. While section 6 of Foodstuffs (Control) Act, 1958 provides that any contravention of section 3 of the said Act would be punishable with imprisonment for a period of a term which may extend to 3 years or with fine or with both. The law also provides forfeiture of the property. The petitioner in the instant case had -been sentenced to 6 months' R. I. Plus a fine of Rs. 50,000 (Rupees fifty thousand) and in default of payment of fine he had been ordered to undergo further rigorous imprisonment for a period of 6 months. Clearly the Martial Law Order No. 5 and Martial Law Regulation No. 14 do no provide for the imposition of any fine. Fine, however, could be validl imposed under section 6 of the Foodstuffs (Control) Act, 1953. Case involving violation of West Pakistan Foodstuffs (Control) Act, 1958 6 are tried by Tribunals constituted under West Pakistan Foodstuffs (Control) (Punjab Second Amendment) Act, 1975 (Act XLVIII of 1975). The Tribunals have power to pass any sentence and exercise all or any of the power which a Magistrate of 1st Class empowered under section 30 of the Code of Criminal Procedure may pass or exercise under the said Code. Thus the powers of the Tribunals under the Foodstuffs (Control) Act are circumscribed by the powers which are enjoyed by a Magistrate of 1st Class under section 30 of the Code of Criminal Procedure. Under section 32 of the Code of Criminal Procedure, Magistrate of 1st Class cannot impose a sentence exceeding 3 years. His powers of imposing a fine are limited to the maximum of Rs. 5,000 (Rupees five thousand). Thus even if the petitioners were tried by the Foodstuffs (Control) Act, they could not be burdened with a fine exceeding Rs. 5,000 (Rupees five thousand). As stated earlier Martial Law Order No. 5 read with Martial Law Regulation No. 14 make no provision for the imposition of fine.
In the circumstances while upholding the conviction of the petitioner I hold that the imposition of fine beyond Rs. 5,000 (Rupees five thousand) was illegal. The petitioner could only be fined up to the maximum of Rs. 500. This writ petition is accepted only to the extent that a fine of Rs. 45,000 (Rupees forty-five thousand) is declared to be illegal and without lawful authority. The petitioner, however, would be liable to pay a fine of Rs. 5,000 (Rupees five thousand) only.
There would be no order as to costs.