This application under section 561-A, Cr. P. C. Has been preferred by the applicant with a prayer that the proceedings of the case, State v. Fazul. Rehman's alias Wadika under sections 3 and 6 of West Pakistan Foodstuffs Control Act, 1958, pending in the Court of A. C. & S. D. M., City Karachi, against him are mala fide and the charge being ground--less on which no conviction can possibly be sustained and the same be quashed.
2. The brief facts of the case are that A. S. I. Mohammad Khan, while on patrol duty on night between 7th and 8 of April, 1980, got spy information in Kalakot Area that the applicant has a stock-of sugar received by him through illegal means. He therefore searched his shop situated at "Purana Haji Camp", recovered 2 1/2 gunny bags of sugar, prepared such mashirnama in presence of mashirs Khuda Bux and Mohammad Sadiq, arrested the accused and lodged such report at Police Station, Kalakot of Karachi. The applicant was sent up to stand trial under sections 3 and 6 of Foodstuff (Control) Act of 1958, after usual investigation by the Police. The charge under sections 3 and 6 of Food--stuff Control Act, has been framed against the applicant by the learned Magistrate, on 4th June, 1980 and P. Ws. Khuda Bux, Mohammad Sadiq, Mohammad Bux and Mohammad Khan have so far been examined in the Court. The last witness has been examined on 24June, 1980. The applicant for the first time approached this Court for quashment of the proceedings on 19June, 1980.
3. The case of the applicant is that he is a bona fide purchaser of the sugar from Mohammad son of Nizam and Mohammad Umar son of Mitho as each of them got two bags of sugar from Thatta, Sugar Mills, out of sugar cane Growers quota and sold the same to the applicant at Karachi. It has also been contended that there is no restriction to purchase any quantity of sugar by anyth th th individual from a Sugar Cane Grower and keeping of such sugar in stock is no offence. The applicant is a General Provision store shop owner and also a "Halwai". He has produced photostat copies of the godown delivery memos for delivery of sugar to Mohammad son of Nizam and Mohammad Umar son of Mitho as Annexures `E' and `F' and also a gate-pass as Annexure `G' showing the bona fide removal of the bags from the Thatta Sugar Mills, Thatta. The Annexure `H is a certificate showing 4 bags of sugar as genuinely issued to the abovesaid persons out of Sugar Cane Growers quota. The police party actually raided the shop of the applicant at about midnight on 21st March, 1980 when nothing incriminating was recovered from there. The police party then illegally and forcibly dashed into the house of the applicant, misbehaved with the women folk and forcibly took away four bags of sugar weighing 400 kilograms after committing trespass. There was no mashir of seizure and no such memo whatsoever was prepa--red on that night and the applicant was wrongfully confined at the Kalakot Police Station where he was beaten red and blue and let of after extortion of sum of Rs. 5,000 as ransom from him. Neither any surety was taken from him nor any case was registered against him. The applicant thereafter raised hue and cry, approached the Higher Police and Martial Law Authorities and such application dated 31st March, 1980 has been produced as Annexure `A'. The applicant has also approached the Director Food, Karachi (Region), Karachi, seeking permission to keep stock of sugar in his house and a copy of such application has also been produced today. When Police was confronted with this situation the --in order to harass the applicant fabricated a false case with a mala fide intention and registered an F. I. R. Against him on 8th April, 1980 i.e. After about a fortnight of the actual occurrence The applicant's were Mst.
Mariam also filed a direct complaint against the S. H. O. Kalakot Police Station, A. S. I. Mohammad Khan (The first informant in the police case) and 4 other constables of the same police station under sections 392, 342 and 34, P. P. C. In the Court of S. D. M. City, Karachi on 10th April, 1980. The photostat copy of the complaint has been produced as Annexure `C'. The learned S. D. M. Recorded the statement of the complainant on receipt of the complaint and ordered preliminary enquiry in which statements of Noor Nawaz and Malang have so far been recorded. The learned S. D. M. Is still reluctant to register the case which is being put of from tii1w to time without any valid reason and the police case is being expeditiously tried.
4. The learned counsel for the applicant has contended that the prosecution against the applicant is mala fide and liable to be quashed in view of the above circumstances of the case. He has also relied upon an unreported case of this Court Criminal Miscellaneous No. 628/79 wherein the proceedings were quashed against all those who were carrying 130 bags of sugar in a truck and a van issued under growers quota.
5. Mr. Murtaza Hussain, the learned counsel appearing for the State has on the other hand contended that in spite of the fact that the incident is alleged to have occurred on 21March. 1980 still the applicant complainant neither reported this matter to any authority nor any such complaint was filed in any Court at least for ten days, the applicant has produced a photostat copy of an application as Annexure `A' purporting to have been made on 31st March, 1980 though there is no such proof to show if any such application was actually made on the above date. He has on the contrary produced Photostat copy of the same application With an endorsement of D.
M. L. A.'s office showing that such appli--cation was received there either on 7th or 9th April, 1980.
There is, therefore, nothing to show if the occurrence took place on 21st March, 1980 or 7April, 1980.
It has also been contended that stock of sugar in question was in violation of section 3 of West Pakistan Foodstuffs Control Act, 1958. The applicant very well knew that he cannot store sugar without a valid permission and it was on account of it that he applied for such permission to the Director, Food, Karachi. The learned counsel for the State has lastly contended that unreported case of this Court referred to by the learned counsel for the applicant has absolutely no relevancyst th with this case and the principles arrived at in that case cannot he applied so far as this case is concerned.
6. I have carefully considered the contentions of the learned counsel for the applicant as well as State. I have also gone through the citation referred to above by the learned counsel for the applicant. The point involved in that case was regarding movement and sale of the sugar growers quota and not keeping stock of sugar in violation of section 3 of West Pakistan Foodstuffs Control Act, 1958. When this point regarding stock of sugar was being agitated, I had even granted time to the learned counsel for the applicant to ascertain if such stock of sugar from Cane Growers quota was permissible, under the law. The case was adjourned to 29October, 1980. But he could not produce anything in this respect and instead produced a copy of application purporting to have been made by the applicant to the Director Food Karachi seeking permission to keep stock of sugar in his house which showed that it required a permission from the Food authorities. However the applicant shall be at liberty to agitate this point before the trial Court. The question before me is if the prosecution of the applicant is mala fide and no conviction can be sustained on evidence so far brought on the record. I would not like to appreciate and assess the evidence available on the record and leave it entirely for the trial Court to examine it.
7. The point that the incident occurred on 21st March, 1980 and not on 7th April, 1980 as shown by the police and the case against the applicant was registered only after he made hue and cry against the police would be also thrashed out in the trial Court where the case filed by the applicant's were against the police is also pending disposal. Therefore there are no circumstances to quash the proceedings at this stage. Let the trial come to it's conclusion on merits. In the result this application is dismissed.