This is a petition under section 561-A of the Code of Criminal Procedure praying far the quashment of the proceedings in' a case under section 23 of the West Pakistan Pure Food Ordinance pending in the Court of Mr. M. D. Chaudhry, M. I. C. Mianwali, so far as these proceedings relate to the to petitioners. The learned Magistrate had directed the issuance of summons against the to petitioners on the 31st of July 1969, followed by non-bailable warrants on subsequent dates.
2. The prosecution case, in brief, is that on the 22nd of August 1968, Mi. A. R. Puri, then M. I. C.
Mianwali, acting on behalf of Municipal Committee, Mianwali purchased three packets of chilli (Chattan Brand) from Ali Khan son of Muhammad Yar, Kariana Merchant, Mianwali which were found to contain foreign dye and extraneous mineral matter and unfit for human consumption by Government Food Analyst, Multan, vide his certificate dated the 12th of November 1968, (at page 7 of the file) con--sequent on which a complaint under section 23, of the West Pakistan Pure Food Ordinance .Was submitted in the Court of A. D. M., Mianwali, on the 19th of December 1968, against Ali Khan and the proprietor, of Shaheen Products, Lyallpur. It was on the 31st of July 1969, that the names of the present petitioners were substituted in place of the second accused i.e. The proprietor of Shaheen Products, Lyallpur, and the trial Court had ordered the issuance of non- bailable warrants against them on the address supplied by Ali Khan, the original seller of the packets of chilli in dispute. The to petitioners have moved this Court under section 561-A of the Code of Criminal Procedure for setting aside this order on the ground of lack of jurisdiction in the trial Court to prosecute them.
3. I have heard Mr. Jariullah Khan, Advocate, on behalf of the, petitioners and Mr. Muhammad Rafiq Butt, Advocate, for the State, who have taken me through the record of the case and find that the procedure adopted to implicate the to petitioners in this case was unwarranted by law.
4. It was Ali Khan who had sold the packets of chilli in question on the 22nd of August 1968, which were found unfit for human consumption so he alone could be prosecuted under section 23 of the West Pakistan Pure Food Ordinance, and if he planned to take the defence that he had purchased the chillies from the to petitioners he could have moved the trial Court under subsection (4) of section 28 of the said Ordinance to implicate them as co-accused in this case, provided he could satisfy it that he had on or before the first day of hearing of the case in the Court against him sent to the Inspector (Mr. A. R. Puri in this case) a copy of the warranty (together with a translation thereof in English) with a notice stating that he intended to rely on it and specifying the name and address of the person from whom he received it, and had also sent a like notice of his intention to that (specified) person in accordance with the procedure specified in subsection (3) of section 28 of the said Ordinance. In the present case there is nothing on the record to show that Ali Khan had complied with the above-mentioned provisions of the Ordinance as no copy of warranty or the requisite notice is available on the record nor any application as required under subsection (4) of section 28 of the said Ordinance. It appears that Mr. A. R. Puri had, of his own accord, implicated Shaheen Products; Lyallpur, presumably on the basis of the address give on the packets; which was 'not at all the intention 'of the pro I of this Ordinance otherwise the term "manufacturer" would have been used in place of the words person from whom he received it".
5. The proceedings of the case indicate that the second accused was sent for by summons for four times as "Proprietor Shaheen Products, Lyallpur" and on the fifth hearing bailable warrants were issued on the same address, which remained un-served because of insufficient particulars. On the sixth hearing the name of Ahmad Din was inserted as Proprietor Shaheen Products, Lyallpur, in the non-bailable warrants for to consecutive hear--ings but the to warrants were returned un-served.
On the 8th of April 1969, the aforesaid Ali Khan was directed to put in the correct address of the Proprietor, Shaheen Products by the next day but he did not appear to have complied with the order, so the warrants continued to issue on the same address for seven subsequent hearings but without any success. Ali Khan was again directed on the 2nd of July 1969, to furnish the full particulars of the Proprietor, Shaheen Products, Lyallpur, which he did not comply till the 31st of July 1969, when he submitted an applica--tion (at page 13 of the file) requesting the issuance of warrants in the name of Sh. Haji Muhammad Siddique and Muhammad Ashraf as proprietors, previously of "Chattan Brand" and now of "Marshal Brand", Shaheen Chemical Works, Goal Kariana Bazar, Lyallpur. On seven subsequent hearings warrants were issued on this fresh address submitted by Ali Khan but all these were returned unserved and on the 3rd of November 1969, fresh warrants were issued on that address which were endorsed by name to the S. H. O. Police Station Saddar, Lyallpur, for service. It was on the issuance of the last mentioned warrants that the petitioners came to know of their implication in this case.
6. These proceedings would go to show that Ali Khan had not warranty .In his possession to fix the responsibility of the sale of the packets of chilli in dispute on any specific person as mentioned in subsection (3) of section 28, of the said Ordinance which called upon the seller to specify the name and address of the person from whom he had received the three packets of chilli and that to on or before the first day of the hearing of the case in the Court against him. He had first given the name of Ahmad Din as the Proprietor of Shaheen Products, Lyallpur which turned out to be a fictitious name and when called upon to give further particulars he remained quiet for many months and later sub--stituted the names of the petitioners who are in fact pro--prietors of Shaikh Chemical Works and manufactured "Marshal Brand" of chillies. He had dubbed them as original manufacturer of "Chattan Brand" chillies although the proprietors of that brand were Messrs Shaheen Products Lyallpur. He had thus been shifting from one person to another as also from one firm to another and had produced no document to connect the petitioners with the sale of these packets of chilli to him.
7. The trial Court had therefore, made a clear departure from the procedure prescribed in section 28 of the West Pakistan Pure Food Ordinance in summoning the to petitioners in this case and that to after full one year of the seizure of the sample of chillies in question. It is now a well-settled proposition of law that where a power is given to do a certain thing in a certain was it must be done in that way or not at all and all other method of performing that at are deemed to be forbidden as was observed in Mumtaz Begum v. Tile State (1968 P Cr. L J 97). The implication of the to petitioners in this case being unwarranted by the relevant pro--visions of law I accept this petition and quashing the proceedings being taken against the to petitioners Sh. Muhammad Siddique and Sh. Muhammad Ashraf, Proprietors, Sheikh Chemical Works, Lyallpur, direct the trial Court to cancel the summons of warrants issued against them as co-accused of the aforesaid Ali Khan in this case.