These 24 applications under section 561-A, Cr. P. C. Involve common questions of law and accordingly they have been heard together.
2. The National Marble Industries Limited is a private limited Company, to which I will refer as the company, having its registered office at Mauripur Road, Karachi. It is engaged in the marble trade and owns marble mines at Baluchistan from where the marble is excavated and brought to their factory at Karachi. Mir Zafar Iqbal Zehri is the Managing Director of this Company while its General Manager is Bashir S. Khan. All these parties are shown as petitioners in the various applications which are under consideration. It appears that the Karachi Municipal Corporation, to which I will refer as K. M. C. Through its Superintendent Octroi, has filed as many as 24 complaints under sections 99 and 100 of the Sind People's Local Government Ordinance, 1972 to which I will refer as the Ordinance, against the General Manager and the Managing Director of the Company, alleging that on various consignments made by them they have failed to pay the octroi charges, leviable thereon. These complaints are pending before a learned Additional City Magistrate, Karachi. Some of the cases instituted upon these complaints have proceeded but the complaint of the applicants is that the progress made even in those case-- is very tardy, and since months no witnesses are in attendance. As regards the remaining cases, the complaint of the applicants is that they have not even been proceeded with.
3. I have heard Mr. Fasihuddin, the learned counsel for the applicants, Mr. Muslim Naqvi, who appeared for the K. M. C. And Mr. Ibrahim Memon, who appeared for the State.
4. The main ground on which Mr. Fasihuddin sought the quashment of the proceedings in the cases instituted by the K. M. C. Against the applicants is that such proceedings are violative of section 102 of the Ordinance. The said section bars Courts from taking cognizance of any offence under the Ordinance save on a complaint in writing from the Chairman of a person generally or specially authorised by the Council in this behalf. Mr. Fasihuddin submitted that in all these cases the complaint has been filed by the Superintendent Octroi of the K. M. C. And that the prosecution have failed to show that he is duly authorised by the K. M. C. Under section 102 of the Ordinance to file and make the complaints. It is unfortunate that despite cross-examination of the witnesses on this point, the requisite sanction was not produced before the trial Court. It was in these - circumstances that the appellants were forced to approach this Court under section 561-A and this Court had to admit these applications. Mr. Muslim Naqvi, the learned counsel for the K. M. C. Has now produced before me a certified copy of a resolution approved by the Administrator, K. M. C. On 12-9-1973, authorising the Superintendent Octroi and certain other specified officers under section 102 of the Ordinance, to file complaints under the Ordinance. It may be pointed out that Mr. Muslim Naqvi had previously produced before me a copy of the resolution which though it had the correct number, namely, 5269/Admn/73, which seems to indicate that the resolution pertained to the year 1973, unfortunately bore a wrong date, namely, 12-9-1974. However, the memorandum granting the approval gave the correct date namely, 12-9-1973. Today Mr. Muslim Naqvi has produced before me a correct true copy of the resolution and the memorandum granting approval to the same, both of which show that the approval to the resolution was granted on 12-9-1973, and not on 12-9- 1974, which later date appears to have been a typing error as submitted by Mr. Muslim Naqvi. Prima facie it appears that the approval to the proposal was given by the Administrator K. M. C. On 13-9- 1973, as stated in the true copy filed by Mr. Muslim Naqvi today. However, it will still be open to Mr. Fasihuddin to challenge this point before the trial Court and if there is any discrepancy with regard to the date of the approval, the learned trial Court may take such action as it considers appropriate. In view of the true copy filed by Mr. Muslim Naqvi, whereby the Administrator K. M. C., who is, since 1971, performing the functions of the K. M. C. Has authorised the Superintendent Octroi of the K. M. C. To file complaints in respect of offences under the Ordinance, the cognizance of the complaints appear to have been taken by the learned trial Court properly and prima facie do not suffer from any legal defect.
5. It was next contended by Mr. Fasihuddin that there have been delay both in the filing of the complaints as well as in the proceedings before the trial Court. However, there is no Statute of limitation so far as criminal proceedings are concerned. Mere delay in filing the complaints or in the final disposal of cases is not a valid ground for the quashment of proceedings as has been held by the Supreme Court in the case of Ghulam Muhammad v. Muzammil Khan (PLD 1967 SC 317). Of course, if it has been established that the proceedings filed against the applicants are an abuse of the process of the Court, a case for quashment may be made out. I am, however, not satisfied that these are cases of abuse of process of the Court.
6. It was next contended by Mr. Fasihuddin that although the complaints were invariably against the General Manager of the Company only, the trial Court has also issued processes against the Managing Director of the Company. The trial Court cannot be considered to have overstepped its jurisdiction in doing so. It is well settled that the Court takes cognizance in respect of an offence and not of offenders. If, therefore, while taking cognizance of an offence, the Court feels that there is case against persons not named in the complaint or in the challan, it is free to take proceedings against them.
7. It was then submitted by Mr. Fasihuddin that though the Company is not a dealer in butter, the complaints referred to in C. M. As. 702 to 705 of 1978 refer to alleged failure of the applicants to pay octroi on butter consignments. It, however, is a question of fact as to whether the Company is solely dealing in marble or is also dealing in certain other business in addition to its main business.
Of course, if the facts, which are to be led before the trial Court, disclose that the Company is not dealing in and has never dealt in butter, I am sure that the learned trial Court will have no hesitation in dismissing the cases against the applicants which involve evasion of Octroi on consignments of butter.
8. It was finally submitted by Mr. Fasihuddin that since the General Manager and the Managing Directors are both stationed in Baluchistan and have a statutory responsibility for the supervision and Management of their mines in that Province, it is extremely difficult for them to attend the numerous hearings of their cases at Karachi, which cases are essentially summon cases, wherein the maximum penalty which can be imposed is a fine of Rs. 1,000. The learned counsel pointed out that the trial Court itself has granted exemption to the applicants from personal appearance in some of the cases but as in the other cases it has issued warrants against them, the applicants are under a severe strain. The learned counsel also pointed out that at the time of admission of these applications, this Court had allowed the General Manager and the Managing Director to be represented before the trial Court by their counsel. This order was made in view of the applications made by the applicants for quashment of the proceedings. Since I propose to dismiss all these petitions, it will no longer be proper for this Court to continue its order for the exemption of the applicants from appearance before the trial Court. However, since the cases against the applicants are not of a serious nature, and as the maximum penalty involved in these cases is only a fine extending up to Rs. 1,000, the trial Court, if approached, can grant this exemption. The fact that the trial Court had issued warrants against the applicants is no bar to grant of exemption as has been held in the case reported in AIR 1952 Assam 151. If, for any reason the trial Court does not consider it fit to grant the exemption to the applicants, it will be open to them to approach this Court.
9. With the above observations and for the foregoing reasons, I find no merit in these applications, and dismiss the same.