AJMAL MIAN, J.-This petition i3 directed against the order dated 9-12-1978 passed by the respondent No. 1 under section 114, Cr. P. C. (hereinafter referred to as the Code). The facts leading to the filing of the above petition as asserted in the petition are that the petitioner-Company owns a sugar mill viz. United Sugar Mills, which is situated in Sadikabad, District Rahimyar Khan, and that petitioner has been purchasing sugar-cane for manufacturing sugar, from the neighbouring area including the District of Sukkur, for the last 6 years. It has further been averred that in order to encourage the sugar cane growers to grow more sugar-cane and thus enable the greater production of the sugar the petitioner has been making advances to the sugar-cane growers as an inducement or incentive. It has also been averred that at present the advances made by the petitioner to sugar-cane growers in the District of Sukkur are in excess of the sum of Rs. 5 lacs. The respondent No. 1, through his order dated 9-12-1971 passed under section 144 of the Code has prohibited for a period of 69 days the transport of sugar-cane from the limits of Sukkur District towards Punjab, through rail, road, river or by other mechanical means except under a valid permit issued by the competent authority. The petitioner, being aggrieved by the above order has filed this petition to the above impugned order.
2. Mr. Khalid Anwar the learned counsel for the petitioner has urged the following points.
(i) that the impugned order is beyond the scope of section 144 of the Code,
(ii) that under subsection (2) of section 144 of the Code an ex parte order could have been passed by the respondent No. 1 in cases of emergency or in cases where the circumstances do not admit of serving in due time of a notice upon the person against whom the order is directed, but in the instant case the conditions precedent to passing of an ex parte order referred to hereineabove were lacking and therefore, the order is illegal,
(iii) that as the West Pakistan Foodstuff Act, 1959, empowers a Provincial Government to impose restriction on the movements of the food--stuff, section 144 of the Code could not have been pressed into service by the respondent No. 1.
On the other hand Mr. Usman Ghani Rashid, the learned Advocate --General, and Mr. Ibrahim Memon Advocate for the respondents have contended that the above petition is liable to be dismissed as the petitioner did not avail of the relief of review provided for under subsection (4) of section 144 of the Code. They have further contended that the impugned order is within the ambit of section 144 of the Code and that the fact that there is another enactment empowering the Provincial Government to impose restriction on the movements of foodstuff would not make the instant order under section 144 of the Code as illegal or without jurisdiction.
Before dealing with the above contentions of the learned counsel for the parties, it may be observed that the respondents have not filed any counter-affidavit to the petition. However, during the arguments, the learned Advocate General has placed an official file containing a few documents which necessitated the passing of the impugned order. The learned counsel for the petitioner Mr. Khalid Anwar was given an opportunity to examine the aforesaid documents and upon examining the same, he submitted that he was ready to argue the case without filing any further affidavit or rejoinder affidavit.
3. Reverting to the first contention that the impugned order is beyond the scope of se.Tion 144 of the Code, it may be advantageous to reproduce hereinbelow section 144 of the Code and the impugned order: "144.-(1) In cases where, in the opinion of a District Magistrate, Sub. Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the third class) specially empowered by the (Provincial Government) or the District Magistrate to act under this section (there is sufficient ground for proceedings under this section and) immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material fact sof the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumotancps do apt admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.
(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
(4) Any Magistrate ma; (either on his own motion or on the application of any person aggrieved) rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor-in-office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order ; and if the Magistrate rejects the application wholly or in part, he shall record in writing this reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof ; unless, in cases, of danger to human life, health or safety, or a likelihood of a riot or an affray, the (Provincial Government) by notification in the official Gazette, otherwise directs."
The impugned order dated 9-12-1978 reads as follows :- "Order under section 144, Cr. P. Code.-Whereas it has been made to appear to me that United Sugar Mills, Sadiqabad is lifting sugar-cane from Sukkur District area, which is likely to cause deficit in the two Sugar Mills in the region, and thereby jeopardise the Government policy ; And whereas in my opinion there are sufficient grounds to proceed under section 144, Cr. P. Code ; Now, therefore, 1, Ghiasuddin Junejo, District Magistrate, Sukkur do hereby prohibit transport of sugar-cane from the limits of Sukkur District towards Punjab through rail, road, river or by other mechanical means except under a valid permit issued by the competent authority.
This order shall take effect from the date of its issue and will remain in force for a period of 60 days.
This order shall be given wide publicity by publication in the official Gazette, local newspapers, proclamation by beat of drums and affixing its copies on conspicuous places throughout the district.
Given under my hand and seal of the Court this 9th day of Decem--ber, 1978.
(Sd.) Ghiasuddin Junejo, District Magistrate, Sukkur."
4. A perusal of subsection (1) of section f44 shows that under the above subsection a District Magistrate, S. D. M. Or any other Magistrate specially empowered by the Provincial Government for the District Magistrate, to act under this section if he is of the opinion that there is sufficient ground for proceedings under the section and immediate prevention or speedy remedy is desirable, such Magistrate, by a written order stating the material facts of the case and served in a manner provided by section 134, Cr. P. C. Direct any person to abstain from certain act or to take certain order with certain property in his possession or under his management, if such Magistrate consi-- ders that such direction is likely to prevent or tend to prevent obstruction, annoyance or injury or risk to obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or disturbance of the public tranquility or a riot or an affray. It may be noticed that subsection (1) of section 144 of the Code does not confer an arbitrary power on a District Magistrate to pass an order. It contemplates existence of certain conditions referred to hereinabove as a pre- condition to the passing of an order under it.
In the instant case, the material facts are mentioned in sub-pare (1) o A the impugned order in the following words "Whereas it has been made to appear to me that United Sugar Mills Sadikabad is lifting sugar- cane from Sukkur District area, which likely to cause deficit in the two sugar mills in the region, and thereby jeopardise the Government policy."
The above-quoted reason, which prompted the respondent No. 1 to pa the impugned order apparently does not fit in any of the objects specified in subsection (1) o f section 144 of the Code.
5. The learned Advocate. General has submitted that the Cane Com--missioner under section 10 of the Sugar Factories Control Act, 1950 through his order dated 2-10-1978 has declared the Sukkur District as . a reserved area for the supply of sugar cane for the two mills, namely, P.
1. D. C., Larkana Sugar Mills Naudero (Larkana) and Consolidated Sugar Mills, Ranipur (Khairpur) on equitable basis for crushing season 1978-79. It has been further contended that in violation of the above order the petitioner was purchasing the sugar-cane from the aforesaid reserved area and, therefore, the respondent No. 1 was justified in passing an order under section 144 of the Code prohibiting the movement of sugar-cane from Sukkur District to Punjab. It may be noticed that the two sugar mills mentioned in the aforesaid order of the Cane Commissioner dated 2'-10-1978 are not situated within the limits of the Sukkur District. This position was not controverted by the learned Advocate General and therefore, it cannot be urged that the impugned order was intended to maintain a regular supply of sugar-cane to the Sugar B Mills situated within the District of Sukkur. Nor it is the case of the respondents that the Sukkur District gets its sugar quota from the aforesaid two Sugar Mills situated in Larkana and Khairpur Districts. Therefore, prima facie the immediate object of the passing of the impugned order was not to suppress any mischief which had taken place or was about to take place within the limits of the Sukkur District.
6. The learned Advocate-General in support of his contention that the impugned order could have been passed under section 144 of the Code has relied upon two reported cases, namely the case of Nazar Hussain v.' District Magistrate, Sahiwal (PLD 11972 Lab. 838and the case of Maqbool Ahm2d v. Additional Deputy Commissioner, Bhawalpur (PLJ 1974 Cr. C (B J) 78In the former case the facts were that the District Magistrate, Sahiwal through his order dated 16-5-1972 under section 144, Cr. P.
C. Banned the export of milk and milk products out of the District Sahiwal. The three' petitioners who were milk sellers and who used to export milk from the District Sahiwal felt aggrieved and filed three revision petitions in the High Court. It may be stated that the above order was passed by the District Magistrate, Sahiwal on. a representation made by the Military Authorities to the effect that there was shortage of adequate supply of milk and milk products to the armed forces deployed along the border and, therefore, it was suggested that a ban be imposed on the export of milk and milk products. A learned Single Judge of the Lahore High Court was pleased to uphold the above order of the District Magistrate and held that the aforesaid order was within the ambit of section 144, Cr. P. C. It may be observed that in para. 9 of the judgment at page 842 it has been stated that there was acute shortage of milk and milk products in Sahiwal District 1. e. The district within the jurisdiction of the District Magistrate.
7. In the latter case of Baghdadul Jadid of 1974 a cotton grower and three commission agents in cotton filed a revision petition in the Lahore High Court against the order dated 12-11-1973 passed by the Additional Deputy Commissioner, Bahawalpur under section 144, Cr. P. C. Prohibiting the export of cotton/cotton seed from Bahawalpur District to Multan District by any means of transport except A. C. 134 variety on a permit issued by the Extra Assistant Director of Agriculture Bhawalpur.
In the preamble of the order it was stated that it appeared to the District Magistrate that indiscriminate export of cotton from Bhawalpur to Multan District was likely to cause annoyance, to the General public and disturbance, of public tranquillity. The reason for passing the aforesaid impugned order has been stated at page 80 of the above judgment which was as follows :- "the impugned order was passed in order to prohibit the export from Bhawalpur District to Multan District of only inferior quality of cotton because such export led to the adulteration and mixing of superior with inferior varieties of cotton as well as cotton seeds in the District of Multan thereby causing damage to the quality of Pakistani yarn and tarnishing the image of Pakistan in foreign markets as well as resulting in the production of mixed seed which was likely to affect the future production of cotton in Pakistan."
The learned Single Judge was persuaded to uphold the above order on the consideration that the order was in the larger interest of the country to maintain good quality of cotton and cotton seeds for export.
8. The ratio decidendi of the above two cited cases is that under section 144 of the Code a District Magistrate etc. Is competent to impose a ban on the export of any item from his district. In the aforesaid Lahore case of 1972 there was a shortage of milk and milk products in the District of Sahiwal, as pointed out hereinabove, and therefore, the District Magistrate was justified in passing an order under section 144, Cr. P. C. In order to avoid any ugly situation which might have occurred because of the aforesaid short supply of milk and milk products. The facts of the above case are distinguishable from the instant case inasmuch as in the instant case, the two sugar factories which are to get sugar-cane from the District of Sukkur are not situated within the District of Sukkur and, therefore, in our view, to maintain the supply of sugar-cane for the two sugar mills situated outside the limits of Sukkur District is beyond the scope of section 144 of the Code. The learned Advocate-General submitted that the Sukkur District will be deemed to be part of the Larkana and Khairpur Districts as it has been declared as a reserved area under section 10 of the Sugar Factories Control Act, 19 for the two sugar mills situated in the said two Districts. In our view the limits of the Sukkur District for the purpose of section 144, Cr. P. C. Are quite distinct from the limits which might have been fixed for the reserve area under section 10 of the Sugar Factories Control Act, 1950 as under the latter Act the District Magistrate has not been assigned any power to enforce the compliance of an order passed under the Act.
The aforesaid case of Baghdadul Jadid is also distinguishable from the instant case inasmuch as there is no question of mixing of inferior quality of sugar-cane with the superior quality or the possibility of tarnishing the image of Pakistan in the foreign countries. The object of the passing of the impugned order is to enable the two sugar mills situated in Larkana and Khairpur Districts to get sugar-cane at a cheap price which object cannot be achieved by pressing into service section 144 of the Code. In our view there is no nexus between the objects specified in section 144 of the Code and the reason for passing the impugned order referred to hereinabove.
8-A. Mr. Usman Ghani, the learned Advocate-General has drawn our attention to Messrs Consolidated Sugar Mills, Khairpur's letter dated 8-12-1978 addressed to the Deputy Commissioner, Sukkur, in which it was stated that the petitioner was purchasing sugar-cane in violation of the order of the Cane Commissioner, Sind, dated 2-10-1978 and was paying good price. It was also stated that consequent to the illegitimate and illegal activities on the part of the petitioner they had violated the Sugar Factories Control Act, 1950 and were creating law and order situation in that area. Our attention was also invited to the P. I. D. C., Larkana Sugar Mill's letter dated 10-12-1978 addressed to the Deputy Commissioner, Sukkur, wherein a similar complaint was made. It was also stated in the said letter by the General Manager of the Sugar Mill that their staff was going to use force to stop the petitioner from purchasing the sugar-cane and that there was likelihood of serious trouble. On the basis of the above assertions contained in the above two letters of the aforesaid two Sugar Mills, it was urged by the learned Advocate-General that though the respondent No. 1 has not stated in his impugned order that there was any apprehension of breach of peace but factually there was a possibility of breach of peace and we should presume that the respondent No. 1 had in mind the aforesaid aspect at the time of passing the impugned order. In our view the above contention is devoid of any force inasmuch as there is no indication in the impugned order that the respondent No. 1 had adverted to the above aspect. Further--more, it will amount to placing of a premium on an illegal threat held out by the P. I. D. C. Larkana Sugar Mills in its aforesaid letter dated 10-12-1978 to use force in order to stop the petitioner from purchasing sugar-cane in in the Sukkur District. The above threat was apparently illegal as the said mill was not competent under any law to use force.
9. (a) Mr. Khalid Anwar learned counsel for the petitioner has referred to the case of Ch. Abdul Rehman and 7 others v. District Magistrate, Lyallpur (1974 P Cr. L J 495 The facts of the above case were that the District Magistrate, Lyallpur passed an order under section 144, Cr. P. C. Prohibiting the export of Gur, Sbakar and Khandsari to any place outside the district of Lyallpur on the ground that the aforesaid export of the above items would seriously affect the production of sugar causing scarcity and shortage of sugar in the country resulting in disturbance of public peace and tranquillity. It was held by Shafi-ur-Rehman, J. That a commodity may be scarce in the country but not in a particular locality or in a locality but not in the country. It was further held that it was not the scarcity in the country which would attract the emergency power of the Magistrate but the scarcity of a particular nature in the locality within his jurisdiction would attract the provisions of sec--tion 144, Cr. P. C. The above revision petition was allowed and the order of the District Magistrate, Lyallpur was set aside. The above case on all fours is applicable to the instant case.
The object of an order under section 144 of the Code should be t suppress a mischief of the nature referred to in subsection (1) of the aforesaid section, which either has already taken place or is about to take place within E the limits of the district over which the District Magistrate concerned ha jurisdiction and not to cater for a matter foreign to his District.
(6) Mr. Khalid Anwar has also referred to the case of Joynal Biswas v. Kazi Abdul Majid (PLD 1953 Dacca 61) and the case of Badulal Parte v. The State of Maharashtra and others (AIR 1961 SC 884).
In the above Dacca case it was held that while considering the proceeding under section 144 of the Cr. P. C. The necessary requisite was to see whether there was an imminent danger of breach of peace. In the absence of such imminent danger the action could not be sustained, as the proper action would have been under section 107, Cr. P. C. In the aforesaid Indian Supreme Court's case it was observed that the later part of subsection (1) of section 144, Cr. P. C. Specifically mentions that the order of the Magistrate should set out the material facts of the case and that it would not be possible for the Magistrate to set out the facts unless he makes an inquiry or unless he is satisfied about the facts from the personal knowledge or a report made to him. It was further observed that the above section does not confer an arbitrary power on the Magistrate in the matter of making an order. It will suffice to say that the language of section 144 clearly contemplates that before passing an order under the aforesaid section the Magistrate concerned should be satisfied 'that the conditions precedent to invoking of the sections are present.
It may be observed that if the petitioner has been violating the Cane Commissioner's aforesaid order dated 2-10-1978 by making the purchases of sugar-cane in the reserved area as alleged by the respondents, section 21 o the Sugar Factories Control Act, 1950 provides to meet such an eventuality F by providing penalty but there is no justification for the respondent No. 1 to act under section 144 of the Code for the purpose of enforcing the provisos of the aforesaid .Act under which he has not been assigned an power.
1,0. Referring to the second contention of Mr. Khalid Anwar that the requirements of subsection (2) of section 144 of the Code were not complied with and, that there was no justification for passing an ex parse order. W may observe that there is no denial from the side of the respondents that the petitioner has been purchasing sugar-cane from the Sukkur District for the last 6 years and that they have advanced a sum in excess of Rs. Lacs to the sugar-cane growers with the object to encourage them to grow more sugar cane. In view of the above factual position there was no justification to pass an ex parte order when the address of the petitioner was known to the respondent No. 1, which was given in the two representations made by the aforesaid two Sugar Mills, namely, P. I. D. C. Sugar Mill and Consolidated Sugar Mill. Furthermore there was no imminent danger which could have justified the passing of an ex parte order without serving a notice in accordance with section 134, Cr. P. C. On the petitioner. In our view the impugned order is also bad for the aforesaid reason.
11. Referring to third contention that as the Government has ample power to impose restriction on the movement of sugar-cane under section 3 of the West Pakistan Food Stuff (Control) Act, 1958, there was no justification for the respondent No. 1 to press into service section 144 of the Code, it will suffice to say that if there is another enactment empowering the g Government to control the supply and distribution etc. Of foodstuff it would not debar the respondent No. 1 from exercising his power under section 144 of the Code if the circumstances exist to justify the passing of such an order. We are fortified in our above view by the aforesaid two cases cited by thelearned Advocate- General.
12. Referring to the objection of the learned Advocate-General that the petitioner has rushed to this Court without availing of the remedy of review provided for under subsection (4) of section 144, Cr.
P. C. Whereas according to the learned counsel for the petitioner, the petitioner had approached the respondent No. 1 for reviewing of his impugned order. In this regard reliance was placed on the copy of a telegram dated 14-12-197 sent by the petitioner to the respondent No. 1 (Annexure B to the petition). Be that as it may, the consistent view of the superior Courts has been that if an order is attacked as wholly without authority, partial, unjust, and mala fide, the High Court in the exercise of writ jurisdiction has power to grant relief to the aggrieved party even when the aggrieved party had not availed of the remedy available to him under any law. In this regard Mr. Khalid Anwar referred to the case of the Murree Brewery Company Ltd. v. Pakistan (PLD 1972 SC 279In the above case the Capital Development Authority had requisitioned certain land for the purpose of suitable accommodation for the more efficient functioning of the President's Secretariat. It was held by the Supreme Court that the above purpose was not covered by the Capital Development Authority Ordinance (XXIII of 1960) and, therefore, notwithstanding that the petitioner had not availed of the remedy of appeal provided under the said Ordinance the writ was competent. Furthermoreit was held that the impugned order was not a final order and therefore, no appeal could have been held.
It may be observed that in the aforesaid Supreme Court case the High Court had dismissed the petition filed by the appellant but the Supreme Court allowed the same.
In view of the above discussion we allow the petition and declare that the impugned order is without lawful authority and is of no legal effect. There will be no order as to costs.