' S. A. SARWANA, J.---The above 13 Criminal Acquittal Appeals under Section 417, Cr.P.C. Have been filed by Muhammad Saleh Lakho, Field Officer, Market Committee. New Fruit Market, Hala Naka, Hyderabad, against the common judgment dated 21-12-2002 passed by the learned 7th Extra Joint Civil Judge and FCM Hyderabad, whereby he acquitted all the respondents/accused in direct complaints filed by him under Section 19 of the Agricultural Produce Market Act, 1939 (hereinafter referred to as "the Act") read with Rules 29, 30 and 52 of the Agricultural Produce Market Rules, 1940.
2. The brief facts which ate common in all the appeals are that all the respondents accused are conducting the business of agriculture produce at Millat-eIslamia Colony, Hyderabad, which area has been declared as a notified Market Area of Market Committee,- Hyderabad, under the licence granted and issued to them under the relevant provisions of the Act. The respondents/accused are accordingly required to pay licence and Market Fee and submit Returns of Transactions under Rules 29 and 30 respectively of the Agriculture Produce Market Rules, 1940 (hereinafter referred to as "the Rules").
3. It transpires that the Government of Sindh being satisfied that a situation had arisen in which the purposes of the Act could not be carried out in accordance with provisions of the Act, exercising its powers conferred by Section 25-A of the Act, by Notification dated 19-11-1996 directed that the functions of the Market Committee. Hyderabad shall be exercised by the Deputy Director Agriculture Marketing, Hyderabad. As a result of the aforesaid Notification the Market Committee (hereinafter referred to as "the MC") established and constituted under Sections 7 and 8 of the Act, it is alleged ceased to function and its functions devolved on the Deputy Director, Agriculture Marketing Hyderabad (Authorized Officer). The aforesaid Notification was partially modified by the Government of Sindh of Notification dated 22-6-2000 whereby the powers of the MC were ordered to be exercised by Assistant Director, Agriculture Marketing Hyderabad. The respondents/accused failed/refused to pay deposit the prescribed Market Fee in spite of issue of notices to them in this behalf. Consequently, the Assistant Director as an Authorized. Officer of the MC. Exerting his powers available under Section 20(2) of the Act, authorized Muhammad Saleh, Field Officer of the MC, appellant herein, to prosecute the defaulters in a competent Court of law. The appellant accordingly filed direct complaints against the respondents accused before the Vllth FCM, Hyderabad. On or about 12-6-2002 the respondents accused, filed applications under Section 249- A, Cr.P.C. For their acquittal which were rejected by Order dated 11-7-2002. Thereafter, pursuant to administrative orders of the Sessions Judge, Hyderabad, the complaints were transferred to the Court of VIIth FCM. The said FCM after perusing the complaints opined that before proceeding further in the matter it was necessary to determine whether the complaints were filed by a competent/ authorized person. After hearing the counsel for both parties the VIIth. FCM dismissed all the complaints by a B common judgment dated 21-12-2002 and acquitted all the respondents/accused under section 203 read with section 21 of the General Clauses Act and section 20 of the West Pakistan General Clauses Act read with sections 249-A and 559- A(sic),Cr.P.C. On the ground that the complaints, has not been instituted by a person duly authorized by a resolution of Market Committee in this behalf.
4. Mr. Muhammad Idrees Naqashbandi, learned counsel for the appellant vehemently contended that the Assistant Director, Agriculture (Authorized Officer) while acting under the provisions of Section 25-A of the Act has all the powers of the MC and, therefore, the authority given by him to the appellant was in accordance with law and valid. He added that the learned Magistrate had misinterpreted the law and consequently the dismissal of the complaints by him was in violation of the provisions of the Act and liable to be set aside and the complaints be remanded to the Vllth FCM for decision on merits. He referred to PLD 1989 SC 449, PLD 1978 Lahore 1124 and 2003 SCMR 162 in support of his contentions.
5. In reply Mr. Mansoorul Haq Ansari, learned Advocate appearing for respondents/accused in Cr.Acq. Appeal Nos.21 to 28 and 30 to 32 of 2003, submitted that the Notification dated 19-11-1996 followed by Notification dated 22-6-2000 were not in accordance with the requirements, of Section 25-A of the Act inasmuch as the Notifications did not specify the extent to which the functions of the MC were to be exercised by the Authorized Officer and accordingly the Notifications were bad in law, the prosecution sanctioned/ordered by the Authorized Officer was void and consequently the complaints filed pursuant thereto were rightly dismissed by the learned Vllth FCM for want of a resolution. Mr. Abdul Ghani, strongly supported the arguments of Mr. Ansari.
6. Mr. Rasheed A. Qureshi, Asstt: A.-G. Supported the arguments of the respondents Counsel.
7. All the learned counsel agreed that all the petitions may be decided at the Katcha Peshi stage. I have therefore, heard detailed arguments advanced by all the three learned counsel and anxiously considered the matter and am deciding the 13 petitions by this common judgment.
9(sic). At the outset. I may state that all. The learned contesting counsel have candidly admitted that they were not challenging the levy of Market Fee and their liability to pay the Market Fee and file returns as required under the provisions of the Act and Rules made thereunder but were only challenging the competency of the prosecution instituted by the appellant as he has not been properly authorized by a resolution of the MC as stipulated by Section 29(2) of the Act.
9. Now Section 25-A of the Act pursuant to which the functions of the MC were conferred upon specified persons read as follows:- 24- A. Emergency Powers. - If at any time Government are satisfied that as situation has arisen in which the purposes of this Act cannot be carried out in accordance with the provisions thereof, Government may by notification:-
(a) declare that the functions of the market committee shall, to such extent as may be specified in the notification, be expressed by Government or such person or persons as they may direct;
(b) assume to themselves all or any of the powers vested in or exercisable by any market committee "and such notification may contain such incidental and consequential provision as may appear to Government to be necessary or desirable for giving effect to the objection of the notification." (underlining added).
' Exercising powers under the aforesaid provision, the Government of Sindh on 19th November, 1996 issued the following notification.
"NOTIFICATION ' No, 5 (114) SO(EXT) 96.-In exercise of the powers conferred by section 25-A of the Agricultural Produce Market' Act, 1939, the Government of Sindh are pleased to direct that /the functions of the Market Committee mentioned in Column 2 of the table below, shall be exercised by the officers mentioned in column 3 of the said table: TABLE 1 2 3 S.NO.NAME OF MARKET COMMITTEEAUTHORIZED OFFICERS APPOINTED 1
5. HyderabadDeputy Director, Agri; Marketing Hyderabad 43 ' The notification was later amended to designate a different Officer but the wordings remained the same. It . May be noted that the Notification does not specify the extent to which the functions of the MC are to be exercised by the designated officer (emphasis added). The functions of the MC are nowhere stated in the Act; however the duties of the MC are specified in section 9 of the Act which reads as follows:- "9. Duties of the Committee.-(1) A market committee shall- '
(1) enforce the provisions of this Act, and the rules and bye-laws made thereunder;
(ii) arrange open auction of the agricultural .Produce referred to in Section 4-A, and supervise all operations connected therewith including correct weighment and timely payment of its price in the prescribed manner;
(iii) if it considers necessary or if so directed by Government establish one or more fair price shops and for that purpose buy, sell, store (including storing in cold storage) agricultural produce in the prescribed manner;
(iv) if the financial resources so permit, set up or acquire markets, warehouses, cold-storages (including refrigerated mobile vans) for the benefit and facility of growers, dealers and other market functionaries in the prescribed manner;
(v) undertake any other duty or duties under this Act as Government may, from time to time direct. " behalf, it shall be the duty of the market committee to issue licences to brokers,, weighmen, measurers, surveyors, warehousemen, changers, palledars, borioats and rolas, for carrying on their occupation on their occupation in the market area in respect of agriculture as defined in the Act and to renew, suspend or cancel such licences.
(3) No broker, wieghmen, measurer surveyor, warehouseman, changar, palledar, boriota and. Rola shall, unless duly authorized by licence, carry on his occupation in a notified marked area in respect of agricultural produce as defined in this Act.
' A bare perusal of the above section shows that it gives in detail the duties of the MC but it does not anywhere state that prosecution of the offenders of the provisions of the Act is one of them. The qmission of such duty from Section 9 does not mean that violators of the provisions of the Act and the rules and bye-laws made thereunder can go scot free. Section 29 of the Act takes care of such situations. It rends as follows:-
(4) "29. Trial of Offences.-(1) No offence made punishable by this Act or any rule or bye-laws made thereunder shall be tried by a Court inferior to that of Magistrate of the First Class of the concerned area or by a Court -of Mobile Magistrate of any area by holding summary proceedings.
(2) Prosecution under this Act may be instituted by a person duly authorized by a resolution of the market committee in this behalf.
(3) All fines received from an offender shall be credited to Provincial revenues and grant equivalent to such fine shall, be paid to the market committee." (underlining added).
' Subsection (2) of Section 29 clearly states that prosecution of a person for the offence punishable by the Act or any rule or bye-law made thereunder may be instituted by a person duly authorized by a Resolution of the MC. Respondents' case is that there is no resolution of the Market Committee and, therefore, the authority given by the designated officer to Muhammad Saleh Lakho, the appellant, does not come within the ambit of section 20(2) of the Act as the Market committee does not exist and single person cannot pass a Resolution. Consequently, the direct complaint filed by the appellant without a resolution of the Market Committee is without lawful authority and of no legal effect. On the other hand, Mr. Naqshbandi, learned counsel for the appellants contended that after dissolution of the MC, the functions of the MC having been vested in the designated officer any order issued by him authorizing any person to prosecute the person who contravenes the provisions of the Act of the rules made thereunder should be deemed to be a resolution passed by the MC as the designated officer has been authorized without any limitation to exercise the functions of the Market Committee. In light of section 9(l)(i) of the Act, he argued that it is the duty of the MC to enforce the provisions of the Act and the Rules and bye-laws made thereunder which includes prosecution of the persons who violate the provisions of the Act, the Rules and byelaws made thereunder. The argument is devoid of any force because there are two sections which come in the way of this argument. The first is Section 25-A of the Act which requires that the functions of the MC to such extent as may be specified in the Notification, be exercised by a person so directed by the Government. The alleged Notification simply states that the functions of the MC shall be exercised by the officers mentioned in Column No,3 of the table and does not specify the extent to which the designated officer can perform the functions of the MC which is a requirement of the law. The Notification, therefore, prima facie, does not fulfil the requirements of Section 25-A of the Act. Secondly, Section 20(2) clearly states that prosecution under the Act may be instituted by a person duly authorized by a resolution of the MC in this behalf. As the MC is not functioning, the order of the Authorized/ Designated Officer- cannot under any principle of law be deemed to be a resolution of the MC. However, the position would have been different, if in the Notification the Government of Sindh had specified the functions of the MC which were to be exercised by the designated officer and had included the power to prosecute persons ' for violation of the provisions of the Act, the Rules and Bylaws made thereunder. In such event, the order of the Authorized Designated Officer authorizing the appellant to prosecute the defaulters would have been within the ambit of the law. In view of the clear provision of sections 20(2) of the Act, the Order of the Authorized Designated Officer authorizing' the appellant to prosecute the respondents herein is prima facie, and' in law and liable to be set aside.
10. Further, the powers of the MC and the meaning of the term "function" have been discussed in the case of Fauji Sugar Mills v. Market Committee, Tando Muhammad Khan, (1988 SCMR 155), where the learned Judges of the Supreme Court observed as follows:- "It is also manifest that the levy of a fee can only be in exercise of a power and not in exercise of functions; therefore, the powers vested in a Market Committee under the Act to levy a fee camiot be exercised by the Government in the absence of any notification conferring to it the powers of the Market Committees, merely in exercise of the functions of the said Committee. Hence in all the cases where Market Committee do not exist the powers conferred on them to levy a fee cannot be exercised by anyone, in purported exercise of- the function of the said Committee."
11. It is thus clear that the Authorized/Designated Officer cannot exercise the powers of the MC but can only exercise the functions of the MC. Therefore, just as the- levy of fee, as observed by the Honourable Supreme Court, is an exercise of power and not an exercise of function, in my humble view, the order to prosecute is also an exercise of power and not an exercise of function of the MC.
12. Now Section 29(2) of the Act clearly states that prosecution under the Act may' be instituted by a person duly authorized by a resolution of the MC. It is, therefore, obvious that a resolution is a mandatory requirement for the prosecution of a person who contravenes the provisions of the Act, the rules and bye-laws made thereunder. In the absence of such a resolution, any prosecution would apparently be without lawful authority and void ab initio. I am supported in my view by a judgment of this Court in the case of Secretary Market Committee, Mehar District Dadu v. Narumal & others, (1992 MLD 2449), where a learned Division Bench observed as follows:- "The impugned order of acquittal is based on the provisions contained in subsection (2) of Section 29 of the Act which reads as under:- "Prosecution under this Act may be instituted by a person duly authorized by a resolution of the Market Committee."
' Learned counsel for the appellant contended that the resolution of the Market Committee was filed with the challan but no opportunity was given by the Trial Court to bring in evidence for the same. On examining the record of the Trial Court we find that there is no copy of any resolution having been passed by Market Committee Mehar, in the file. The original challan submitted in the Trial Court mentions enclosures of the challan to be a notice dated 3-6-1985 and resolution copy.
The words 'and resolution, copy' are written with a different ink and in a different hand and these words appear to have been incorporated .At a later stage. The challan is accompanied by copy of notice of demand dated 3-6-1985 but is not accompanied by any resolution said to have been passed by the Market Committee."
' Consequently, the acquittal of the accused by the FCM mider Section 249-A., Cr.P.C. Was upheld by the High Court.
13. It would be appropriate to refer at this juncture to Section 197 of the Criminal Procedure Code relating to prosecution of Judges and public servants, which reads as follows:-
197. Prosecution of Judges and public servants.- (1) When any person who is a Judge within the meaning of Section 19 of the Pakistan Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Federal Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with'the previous sanction:
(a) in the case of a person employed in connection with the affairs of the Federation of the President; and
(b) in the case a person employed in connection with the affairs of a Province of the Government of that Province.
"(2) . ..."
' While interpreting the above provision, the superior Courts have invariably held that without obtaining previous sanction of the relevant authority, no Judge or public servant can be prosecuted (See PLD 1962 SC 277 and 1991 SCMR 1261). Section 197, Cr.P.C. Stipulates the previous sanction by the specified person while Section 29-A of the Act which is a similar provision requires a resolution of the MC.
9. Similarly, Section 92, C.P.C. Relating to public charities stipulates that in case of any breach of any trust created for public purposes of a charitable or religious nature, the Advocate-General, of two or more persons having an interest in the trusts and having obtained the consent in writing of the Advocate General, may institute a suit, to obtain a decree for removing any trustee, appointing a new trustee, directing accounts and in inquiries or settling a scheme etc. Therefore, in case two or more persons having an interest in apy trust wish to file a suit for reliefs specified in said Section, they are required to obtain the consent in Writing of the Advocate-General before instituting a suit.
In the case of Haji Manzoor Ahmed & another v. Syed Mahboob Shah & others, (PLD 1963 Karachi 115), where proceedings initiated by the Advocate- General of the center under Section 92 of C.P.C.
Was in issue, a learned Division Bench of this Court observed as follows:- "If a certain functionary is authorized to do a thing then the mere fact that the other person is higher in status cannot exercise the function of the other person. In this connection a reference may usefully be made to the Kadir Bux and others v. The Crown, (PLD 1955 FC 79). Their Lordships of the Federal Court in this case where the appeal under Section 417 was filed by the Advocate- General and not by the Public Prosecutor held that the Advocate-General was not competent to file the appeal. The Advocate-General may be - higher in rank, but as Section 417 of the Criminal Procedure Code requires that the appeal should be filed by the Public Prosecutor, it was held to be incompetent being filed by the Advocate-General. "
' Similarly, the Honourable Supreme Court of Pakistan in the case of Fakir Shan and others v.
Mehtab Shah Pir Bukhari Masj id Committee and others (PLD 1989 SC 283), emphasized the necessity of the consent of the, Advocate-General in the following words:- ".....That having regard to the substance of the case pleaded in the plaint, the suit was of the nature contemplated in Section 92, C.P.C. And therefore, it was not competent without the requisite prior sanction of the Advocate-General. The plaint in the suit itself disclosed that the suit was barred under the said provision of law and consequently the plaint was liable to be rejected under Order VII, rule 11(d) C.P.C."
' It is, therefore, clear that cases to which the provisions of Section 92, C.P.C. Are applicable are barred in the absence of consent of the Advocate-General. In light of the above observations of the Supreme Court in respect of Section 197, Cr.P.C. and Section 92, C.P.C. And the provisions of Section 29(2) of the Act, it can be safely stated that no person can be prosecuted for violation of the provisions of the Act in the absence of a resolution of the MC.
16. The cases cited by Mr. Naqshbandi are not relevant as none of them deals with the questiom of the powers of the Authorized/Designated officer to order prosecution of the offenders of the Act. In the case of Noon Sugar Mills Ltd. v. Market Committee & others, (PLD 1989 SC K449), the question before the Court related to the Preamble and Sections 2, 3, 4, 7, 8, 9, 10, 20, 21, and 27 of the Punjab Agricultural Produce Markets Act, 1939 which are similar to the provisions of the Sindh Act. There is no discussion in the judgment relating to Section 25-A or 29 of the Act. This case, therefore, does not help the appellants. The case of Allahdad & others v. Province of Punjab, PLD 1978 Lahore 1424, Is of no assistance to the appellant as in the said case the Court held that no injunction could be granted in favour of the dealers permitting them to do any business in contravention of the provisions of Section 4 of the Act. Mr. Naqshbandi also referred to the case of Pakistan Flour Mills Association v. Government of Sindh & others. (2003 SCMR 162), where one of the points for determination by the Court was whether the respondents could legally determine Market Fee when the Market, Committee stood dissolved as per Notification dated 25-11-1993 and an Administrator had been appointed under Section 25-A of the Act. The Honourable Supreme Court held that the Market Committee having been dissolved under Section 33-A of the Act, all properties, funds and dues which were immediately before the date of dissolution vested in and realizable by the Market Committee would vest in and be realizable by the Government or such authority as may be specified in the Notification under Section 25-A read with Section 33-A of the Act and, therefore, collection and recovery of arrears of fees could be effected through the Government functionaries in view of subsection (2) of Section 33-A of the Act. The Honourable Supreme Court approved the judgment of the High Court of Sindh which had held .That the mere collection of fee as distinguished, from levying it could legitimately be treated as ministerial act falling within the category of functions of the market committee. In the instant case it is not the case of other party that MC has been dissolved under section 33-A of the Act. Even assuming that it were so, the judgment of the Supreme Court relates to the recovery of Market Fee and does not throw any light on the powers of the Authorized Designated Officer to sanction prosecution under Section 20(2) of the. Act.
17. In light of the above discussion, I am convinced that the impugned judgment dated 21-12-2002 passed by the learned I Vllth FCM is in accordance with law and is upheld. Consequently, all the Appeals are dismissed.
18. Before parting, I may clarify that the Government of Sindh is at liberty to issue a new or revised Notification strictly in accordance with section 25-A of the Act, specifying the extent to which the functions of the MC may be exercised by the Authorized/Designated Officer.