AFTAB AHMED GORAR, J.---The instant Criminal Miscellaneous Application is directed against the order passed by the Court of learned IV-Judicial Magistrate Malir Karachi; by invoking constitutional jurisdiction of this Court as is envisaged under section 561-A, Cr.P.C. The said miscellaneous application has been filed by the Applicant / accused / Proprietor of Messrs Erum Poultry Feed, against the complaint which was registered under Sections 6(1) & 19/26 Rule 29/30 R/W Rules 51 and 52 of Agricultural Produce Markets Act, 1939; and Rules, 1940.
2. Necessary facts are that Messrs Erum Poultry Feed is conducting sale and purchase of Agriculture produce as defined under Section 2(a) of Agriculture Produce Market Act, 1939 within the jurisdiction / notified market area of Market Committee Karachi; Messrs Erum Poultry being trader / dealer of sale and purchase is bound under the law to (i) Keep his license up to date but he is fail to take the license (ii) Keep record of his sale/purchase in a prescribed form, (iii) Submit report his daily transaction of sale/purchase in H.A.Form to Market Committee Karachi on, daily basis and (iv) Pay market fee on sale/purchase of Agriculture produce at the rate prescribed under Rule 29(ii) of Agriculture Produce Markets Rules, 1940; In the light of above stated reasons, accused has violated Sections 6(1), 19 and 26 Rules 29, 30 of Agriculture Produce Markets Act, 1939 Rules 1940 and has failed to get the license and pay the market fee to the Market Committee Karachi.
3. Ch. Abdul Rasheed, advocate representing the applicant contended that proceedings of Complaint No 05 of 2017 and impugned order passed by the learned Judicial Magistrate Malir Karachi are improper, without jurisdiction, unjust, in variance with law as well as facts of the case; per learned counsel applicant is senior citizen of age of seventy eight years; and is owner of Messrs Erum Poultry Feed situates selling/purchasing agricultural produce as alleged; per learned counsel the provisions of Agriculture Produce Market Committee Act, 1939 has been repealed by the Provincial Assembly Sindh on 28-06-2010 while passing the Sindh Wholesale Agriculture Produce Markets (Development and Regulation) Act, 2010; per learned counsel respondent No,1 has failed to produce any documentary evidence against the applicant; per learned counsel the leaned trial Court has not looked into, analyzed and scrutinized the facts of the case as such maintainability of the complaint was also not considered; per learned counsel Section 29 subsection (2) Agriculture Produce Market Committee Act, 1939 is authorizing to pass "Resolution" to authorize office bearer to file such complaint but herein this case only authority letter has been issued by the Chairman to file such complaint therefore Chairman is not empowered to issue authority letter for lodgment such a complaint against the accused / applicant proprietor of M/s Erum Poultry Fee; per learned counsel the order of the learned trial Court may be quashed under Section 561-A, Cr.P.C.
Learned counsel for the applicant has relied upon the case law reported in PLD 2015 Sindh 382, PLJ 2015 Cr.C. (Karachi) 748, 2003 YLR 533 and 2006 PCr. LJ 476.
4. Mr. Abdul Shakoor Memon, representing the respondent No,1 contended that the proceedings as is envisaged in the complaint are summary in nature and same would not requires statement to be recorded under Section 200, Cr.P.C. because proceedings under Section 200, Cr.P.C. can be invoked in a Direct Complaint for recording of evidence instead summary proceedings; per learned counsel final notice was issued and was duly served upon son of the accused / applicant / proprietor of Messrs Erum Poultry Feed; per learned counsel the Chairman of the Committee after passing "Resolution" issued authority letter in favour of the applicant to file such a summary complaint; per learned counsel complainant is able to produce such "Resolution" before the trial Court as and when required; per learned counsel the instant Criminal Miscellaneous Application for quashment may be dismissed.
Learned counsel for the respondent No,1 relied upon the case law reported in PLD 2016 Sindh 201, SBLR 2015 SC 267, PLD 2016 Supreme Court 55.
5. Ms. Seema Zaidi, learned Deputy Prosecutor General for respondent No,2 adopted the arguments advanced by the learned counsel for the respondent No,2 and submitted that criminal miscellaneous application is meritless and is not maintainable as such same is liable to be dismissed.
6. Heard and record perused.
7. The contention of learned counsel for the applicant with regard to the repeal of the Act of 1939 requires appreciation by virtue of section 21 of the Act of 2010, it would be advantageous if the provision of Section 21 of the Act are reproduced herein as follows:- Section 21. Repeal.-The Agricultural Produce Markets Act, 1939 shall stand repealed on expiry of three years of the commencement of this Act; provided that the Government shall continue to exercise all the powers under the Agricultural Product Markets Act, 1939 to ensure that the statutory functions are performed by the notified markets until the same are transferred to market companies within the stipulated period as may be prescribed.
Although the Act of 1939 has been repealed by the Act of 2010 but the statutory functions have not yet been transferred to market companies by the markets notified under the Act of 1939; therefore, the Government and the market committees are still operating and exercising all the powers as conferred under the Act of 1939.
In the case of Muhammad Farooq v. Ahmed Nawaz Jagirani, reported in PLD 2016 SC 55, it has been held as follows:-- "Exercise of jurisdiction under section 561-A, Cr. P. C. by the High Court is akin to the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; exercise of such jurisdiction is not to be exercised in routine and or as a matter of course merely because such jurisdiction is available and or could be exercised. Exercise of inherent jurisdiction is dependent on non-availability of alternate and efficacious remedy and or existence of some extraordinary circumstances warranting exercise of such jurisdiction bypassing such alternate remedy by the High Court. Another rule of propriety, that has evolved by precedent law must not lose sight is that where two Courts have coextensive or concurrent jurisdiction, than the propriety demands that jurisdiction of Court of the lower grade is to be invoked in the first instance.
11. The remedy under section 561-A, Cr.P.C. is not an alternate and or substitute for an express remedy as provided under the law in terms of sections 435 to 439, Cr.P.C. and or sections 249-A or 265-K Cr. P. C, as the case may be. One cannot be allowed to bypass and or circumvent the ordinary remedy in normal course of the event. In the case of Maqbool Rehman v. State (2002 SCMR 1076) in paragraph 6 thereof, it was held that "normally, High Court does not exercise inherent jurisdiction unless there is gross miscarriage of Justice and interference by the High Court seems to be necessary to prevent abuse of process of court or to secure the ends of justice.
Jurisdiction under section 561-A, Cr.P.C. is neither alternative nor, additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available and that the provisions should not be used to obstruct or direct the ordinary course of Criminal Procedure. This kind of jurisdiction is extraordinary in nature and designed to do substantial justice. It is neither akin to appellate nor the Revisional Jurisdiction.
In another case of Bashir Ahmed v. Zafarul Islam reported in PLD 2004 SC 298 it has been held by the Honourable Supreme Court of Pakistan that:-- "22. Using the powers under section 561-A, Cr.P.C. to determine the fate of a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal path is always pregnant with risk of being led astray. Such a deviation can, therefore, never be ordinarily advisable. Extraordinary circumstances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route. Mere claim of innocence by an accused person could never be considered sufficient to justify such a departure because if this was so permitted then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under section 561-A of the Cr.P.C. The result would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity and the trial Courts as a surplusage. This never was and could never have been the intention of the law maker in adding section 561-A to the Code. Reference may be made to Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another (1996 SCMR 839), Malik Salman Khalid v. Shabbir Ahmad, D&SJ, Karachi and another) (1993 SCMR 1973) and Mst. Sarwar Jan v. Ayub and Gulab (1995 SCMR 1679).
23. The correct import of the provisions of Section 561-A, Cr. P. C, may be summarized as under:-
(i) The said provision should never be understood to provide an additional or art alternate remedy nor could the same be used to override the express provisions of Law;
(ii) the said powers can ordinarily be exercised only where no provision exists in the Coe to cater for a situation or where the Code offers no remedy for the redress of a grievance; (iii)inherent powers can be invoked to make a departure from the normal course prescribed by law only and only, in exceptional case of extraordinary nature and reasons must be offered to justify such a deviation; and (iv)in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of section 561-A, Cr.P.C., should be invoked only in exceptional cases for reasons to be recorded.
8. It transpired from the record that applicant/accused/proprietor of Messrs Errum Poultry Feed has failed to make payment with regard to the license/renewal of license and payment of Market Fee No,128 dated 14.02.2013 and No, 460 dated 13.05.2013 and No, 17 dated 01 01.2014 and No, 61 dated 19.02.2014 and No 815 dated 03.08.2016 and is hiding himself from paying governmental exchequer of valid duty levied for obtaining / renewal of license fee as well and has approached this Court for quashment of the proceedings of complaint registered against the applicant.
9. Be that as it may, there is no force to the assertions raised by learned counsel for the applicant with regard to the quashment of the proceedings; hence the instant Criminal Miscellaneous Application being meritless is hereby dismissed along with listed applications.