' SHAHNAWAZ TARIQ, J.---Through instant miscellaneous application, applicant Imdad Hussain has impugned order dated 16.05.2015, passed by the Court of learned Civil Judge and Judicial Magistrate Sobho Dero at Ranipur, whereby summary report submitted by Investigating Officer in C-Class was declined, and Investigating Officer was directed to submit report before Special Judge Anti-Corruption (Provincial), Sukkur.
2. Necessary facts narrated in instant miscellaneous application are that respondent No,1 ASI Zahoor Ahmed Phul lodged FIR No,73 of 2015, under sections 420, 406, 409, P.P.C. At Police Station Hingorja, that on 01.05.2015, he along with subordinate staff left Police Station for patrolling in the area. During patrolling from different places when they reached near Pir Paryal Shah at National Highway, he received spy information that ten wheeler truck loaded with wheat bags belonging to Larkana, was being off-loaded at Government Food Centre, Rasool Abad and said wheat was procured from Larkana by Incharge Food Centre by issuing Bardana to an unknown trader of Larkana. Complainant raided Food Centre, and found one ten wheeler Truck bearing No,AE-1950, loaded with wheat bags, while one person on seeing police party slipped away, whereas another person available near said Truck, was apprehended who disclosed his name as Gulzar Ahmed resident of Shiwa Mandi, Larkana, and further disclosed that he loaded wheat of an unknown trader from Larkana to deliver at Food Centre, Rasool Abad to Incharge Food Centre namely Imdad Magsi and Munshi Muhammad Murad alias Dado. Due to non-availability of private persons, PC Faiz Muhammad and PC Qurban acted as mashirs and said Truck along with 600 wheat bags were taken into custody. Accused Imdad Hussain has committed criminal breach of trust by issuing Bardana to unknown trader, hence accused Gulzar Ahmed, Driver Asghar Ali, Imdad Magsi Incharge Food Centre, Munshi Muhammad Murad alias Dado and one unknown trader were booked for the offence under sections 406, 420 and 409, P.P.C. Accused Gulzar Ahmed was arrested but nothing was recovered from his possession during search. Such mashirnama was prepared in presence of above named mashirs and accused along with recovered property, were brought at PS; hence instant FIR.
3. Learned counsel for applicant contended that impugned order is bad in law and against principles of natural justice as learned Magistrate has passed impugned order without perusing the material available on record; that main allegation of dishonestly receiving wheat from Larkana was not proved during the investigation, therefore, Investigating Officer had rightly submitted summary report under in 'C'-Class that learned Magistrate has failed to appreciate that Special Court has got no jurisdiction for the cases registered and investigated by the local police; that from bare perusal of FIR no scheduled offence was made out; that learned Magistrate is not competent to send case directly to Special Judge Anti-Corruption by taking cognizance without availability of any material; that neither the concerned quarter had made any complaint regarding the dishonestly procuring of wheat nor such record was collected in support of the allegations made in FIR., hence summary report submitted in 'C'-Class may be approved.
4. Learned APG supported the arguments advanced by learned counsel for applicant and contended that no complaint was moved by the Food Department to lodge FIR nor any material was available with complainant to initiate legal action against accused persons; hence summary report submitted by Investigating Officer in 'C'-Class may be approved.
5. Heard learned counsel for the parties and perused the material available on record prudently.
The operative part of the impugned order dated 16.05.2015, is reproduced as under:- "In view of the decision (supra) this Court is not competent to pass any order on the report under section 173, Cr. P. C. Submitted by the 1.0., therefore, without touching merits of the case, the report in hand along with all the police papers is returned to the I.O. For its submission before the concerned Honourable Special Court."
6. It is well settled that Magistrate is competent to accord or discard the summary report submitted by the Investigating Officer under section 173, Cr.P.C., but while declining such report, it is incumbent upon the Magistrate to apply his prudent mind and scan entire material collected by Investigating Officer during the course of investigation thoroughly including the averments of FIR, statements of witnesses A recorded under section 161, Cr.P.C., mashirnama and other relevant record, and such order should be passed strictly on tangible grounds rather than on the assumptions and presumptions. Magistrate while declining the opinion of Investigating Officer, should also keep in his mind the lengthy trial, mental torment and financial loss of an innocent person against whom cognizance has taken by him.
7. Admittedly, complainant ASI Zahoor Ahmed Phul lodged FIR under sections 420, 406 and 409, P.P.C., mere on receipt of spy information during patrolling, that accused had issued Bardana out of his authorized zone and purchased wheat from an unknown contractor of District Larkana.
Conversely, there was no such complaint from District Food Officer or any other competent authority against accused for the above referred allegations. Even neither any documentary proof nor tangible evidence was available with complainant when he raided at Govt. Food Centre where wheat bags were being unloaded from the truck and said wheat bags along with said truck were confiscated and instant FIR was registered. Investigating Officer during investigation had failed to collect any corroborative and tangible evidence against accused for committing cheating or dishonestly inducing delivery of property or making any alteration or destruction of a valuable security or criminal breach of trust. Considering insufficient incriminating material against the accused, Investigating Officer submitted summary report for disposal of the case in "C"-Class before the learned Magistrate, but he without examining the summary report and other material judiciously, disapproved said report and directed Investigating Officer to submit said report before the Special Court. Section 3 of the Foodstuffs Control Act, 1958, reflects that the Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any foodstuffs or for securing its equitable distribution and availability at fair prices, may, by notified order, provided for regulating or prohibiting the keeping, storage, movement, transport, supply distribution, disposal, acquisition, use or consumption thereof and trade and commerce therein. Similarly; Government of Sindh, Food Department, issued Policy Guide Lines for Wheat Procurement Campaign Crop-2015, vide letter No,SO(W)- 7(23)/2015-Wh: Proc./490, dated 04.03.2015, issued by Section Officer (Wheat), addressed to Deputy Director Food, Assistant Director Food, Storage and Enforcement Officer Food and District Food Controller, Karachi/Hyderabad/Mirpur Khan/Sukkur/Larkana/S. Benazirabad, and in order to maintain transparency in distribution of bardana during wheat procurement, constituted a Committee with following terms of references:- a) The Committee shall ensure proper and equitable distribution of bardana to growers; b) The Committee shall monitor and ensure achievement of wheat procurement target during the current year; c) The Committee shall monitor and ensure safe storage of procured wheat during the current year.
13. The District Food Controller concerned will visit each procurement center daily to monitor the pace of procurement and verify the stocks physically.
16. No Centre Incharge should be allowed to issue bardana without prior permission of District Food. Controller concerned in writing.
22. All the S&E.0s/A.A.0s/R.A.Os should check the procured stock as well as the payments to be made to the growers as envisaged in the Wheat Policy."
8. In the case of Dhana Rani Ganga Ram v. Municipal Committee, D.I. Khan (AIR 1935 Peshawar 24), it was observed that it is necessary that the Inspector should be authorized by the Director of Public Health for laying complaint under Pure Food Act and a conviction on a complaint without such authorization cannot stand. In the case of Muhammad Akram and others v. The State (1991 MLD 1761), it was observed that neither Health Officer nor Notified Officer had lodged the report/ complaint and instead the same had been lodged by Magistrate. Trial Court, therefore, was not competent to take cognizance of the offence and accused was acquitted in circumstances. In the case of Said Khan v. The State (PLD 1962 (W.P.) Lahore 122), it has been held as under:- "It is clear that unless there is evidence to prove that the owner of the truck knew or had reason to believe that a contravention was being committed the truck could not have been ordered to be forfeited. If there was evidence to that effect, not only the truck could have been confiscated but even the owner was liable for punishment under subsection (1) of section 6. There is not an iota of evidence to prove that the owner knew or had reason to believe that his truck was being used in contravention of the provisions of section 3 of the Act. It is the duty of the prosecution in case they desire the confiscation of the conveyance, that it should lead evidence to prove that the owner knew or had reason to believe that the contravention of an order under section 3 was being committed, failing which the Court will not be justified in passing an order of forfeiture of the conveyance. In case the order of the Magistrate was one under section 517(1), Criminal Procedure Code, as interpreted by the learned Sessions Judge, it would be illegal, as no order could have been passed under the general provisions of the Criminal Procedure when there was specific provision in the special Act. Recourse cannot be taken to the general provisions as contained in the Criminal Procedure Code when there was specific provision in special Act for the forfeiture of the property used in the commission of an offence. There are other special Acts as well which specifically provide for the confiscation of a conveyance used for the commission of an offence.
Section 11 of the Opium Act, 1878, provides for the confiscation of the animals and conveyance used in carrying contraband opium. It would be illegal for a Court in a case under the Opium Act to order the confiscation under section 517(1) of the Criminal Procedure Code. The order passed by the learned Sessions Judge, therefore, deserved to be set aside, as no order of confiscation of the truck could have been passed under section 517(1) of the Criminal Procedure Code. I would, therefore, accept this revision petition and order the restoration of the truck to the owner. The learned trial Magistrate will deliver it back to Said Khan or any other person whosoever proves himself to be the owner to his satisfaction."
In the case of Abrar Beg v. The State (PLD 1975 Lahore 1440), in which it has held that section 10 of the Food Stuffs (Control) Act, 1958, places a restriction on the Court's power to take cognizance of an offence punishable under the said Act, similar to that placed by section 190, Code of Criminal Procedure, 1898. It provides that every one should not be permitted to move the Court and it is only on the report of the 'public servant' as defined in section 21, P.P.C. That the Court can take cognizance of such cases. Investigating Police Officer making report under section 173, Cr.P.C. Is not a public servant. If the intention of the Legislature was to prevent the harassment of persons dealing with foodstuffs and for this purpose it has specially provided in section 10 of the Foodstuffs (Control) Act, 1958 that no one except a 'public servant' can move the Court in connection with an offence under the said Act committed by them, then to say that even a private person could bring the machinery of the Court into motion but lodging an FIR would amount to circumventing the provisions of section 10 of the said Act. If this contention is to be accepted as correct then there would be no difference between offences under the West Pakistan Foodstuffs (Control) Act, 1958, and other offence envisaged by Clause (b) of section 190, Code of Criminal Procedure.
9. In present case, learned Magistrate had travelled beyond his legal mandate while not considering the summary report submitted under cancel class and directed the Investigating Officer to submit said report before the Special Court as offences under sections 420, 406 and 409, P.P.C. Are not triable by the Court of. Magistrate, therefore, he was exclusively competent to take cognizance of the offence or to regret the summary report, but he without scanning the summary report coupled with relevant material, returned the same to the Investigating Officer to produce it before the Special Court. In the case of Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31), the honourable Supreme Court has observed that no power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i,e, against only such persons as the Court desired or only with respect to such offences as the Court wished. In the case of Ch. Khalid Mushtaque v. Special Judge (Admn.) and 8 others (PLD 2010 Lahore 114), it was observed that Anti-Terrorism Court had directed the Investigating Officer to submit Challan under section 365-A, P.P.C., in the Court. Special Court constituted under Anti- Terrorism Act, 1997, had travelled beyond its jurisdiction while directing the Investigating Officer to submit Challan in the Court under section 365-A, P.P.C., which was the sole job of the Investigating Agency to submit a report under section 173, Cr.P.C. Before the Court of competent jurisdiction. Even section 19 of the Anti-Terrorism Act, 1997, did not empower the Trial Court to issue such type of direction to the police. Impugned order was not sustainable in law and the same was consequently set aside.
10. Indeed, neither District Food Officer nor any Authorized Officer nor Government made any complaint for lodgment of FIR against accused for committing the alleged offences. There were neither any allegations of misappropriation of wheat stock stored in Govt. Food Centre nor any shortfall of the stock of Bardana nor issuance of any Bardana to any unknown contractor which was proved from the relevant stock registers. Perusal of entire material it is crystal clear that there is no iota of evidence nor any tangible proof which may prima facie corroborate the allegations levelled by the complainant in FIR. Even impugned order is completely silent and learned Magistrate while passing impugned order, has neither discussed the availability of such corroborative material nor furnished any reasonable ground that alleged offences fall within the ambit of provisions of Prevention of Corruption Act, 1947, for transmitting the summary report to Special Judge for passing appropriate order. Thus, in absence of any supportive and tangible material, learned Magistrate while disapproving summary report submitted by the Investigating Officer, had committed serious illegality and material infirmity which calls for interference by this Court.
11. Considering the facts, circumstances and case law referred supra, I am of the view that only District Food Officer was competent to approach the concerned police for lodgment of FIR.
Nevertheless, complainant was neither competent nor authorized to register instant FIR in view of S.3 of the Foodstuffs Control Act, 1958, and Policy Guide Lines issued by Govt. Of Sindh, Food Department for procurement of wheat and distribution of Bardana for the year 2015, as well as to conduct all the subsequent proceedings and events. Consequently, the search and seizure of Truck and wheat bags as well as lodgment of FIR are declared as illegal and ultra wires. Consequently, impugned order dated 16.05.2015, passed by learned Magistrate is set aside and summary report submitted by Investigation Officer is approved under C-Class. Resultantly, instant criminal miscellaneous application stands allowed.
' These are the detailed reasons for the short order dated 03.02.2016, passed by this Court, whereby instant criminal miscellaneous application was allowed.