This criminal revision filed by" the petitioner is directed against the judgment of the Additional Session Judge, Gujrat, dated the 19th of December 1963, whereby, dismissing the petitioner's appeal, he upheld his conviction under section 6 of the West Pakistan Foodstuff (Control) Act, 1958 read with clause 14 of the Supplementary Paddy and Rice (Control) Order, 1958, recorded by Mr. Muhammad Akram, Magistrate Ist Class, with an award of one year's R. I., but reduced the sentence to that of six months' R. I.
2. The simple background of the case is that the District Magistrate, Gujrat vide, his order dated the, 2nd of October 1962, passed under clause 11 (d) of the West Pakistan Supplementary Paddy and Rice Control Order, 1956, directed the sealing of the . Rice Husking Mills in the District and accordingly in pursuance thereof the petitioner's Mill in village Dolatnagar, Police Station, Jalalpur Jattan, was also sealed. It may be observed in this context that according to this order may Muhammad Naseem, Food Inspector, was supposed 'to seal all the Husking Mills in the jurisdiction of Police Stations, Jalalpur Jattan and Karianwala. Notwithstanding this, however, it appears that on the 14th of February- 1.963, the District Food Controller, Gujrat, addressed a letter Exh. P. C. To Syed Fazal Hussain Shah, Inspector Foodgrains, Laiamusa to immediately conduct raids with the help of the Local Police in Kakarali and Daulatnagar villages where according to the information received, husking of paddy was being illegally done. On the 17th of February 1963, having received this letter, Fazal Hussain Shah, Inspector Foodgrains P. W. 1, organised a raiding party with the assistance of the Head Constable, Rehmat Khan (P. W. 2), F. Cs. Muhammad Sadiq (P. W. 6) and Abdul Rashid (P.
W. 7) and Muhammad Shah (P. W. 9) Chowkidar of the Foodgrain Department, reaching in village Daulatnagar at about 4-30 p.m. Where he saw the petitioner husking rice in the Mill which had already been sealed by the order of the District Magistrate. A local resident, Noor Din, P. W.;' was also made to join the raiding party and gunny bags (Exhs. P, 2 to P. 5) containing rice and paddy were taken into possession vide Memo. P. A. In addition to this the Inspector also took into possession the huller of the machine Exh. P.
8. Fazal Hussain Shah, Inspector, Foodgrains, drew up a report Exh. P. B. On the basis of which the case was formally registered at Police Station Jalalpur Jattan, on the same evening.
3. The position taken up by the petitioner at the trial was that the Mill actually belonged to his brother, Muhammad Khan and he had nothing to do with it, and that he was at logger-heads with the Local Police of Jalalpur Jattan and had been sent for from his house and later falsely implicated in this case as a result of personal vendatta. He produced Fateh Khan as the solitary defence witness to support the allegations of the hostile attitude of the Local Police towards him and the way he was sommoned by the Police so as to be later challaned in this case.
4. Placing full reliance on the testimony of Fazal Hussain Inspector Foodgrains, Rehmat Khan, Head Constable rather members of the raiding party who entered the witness-- the learned trial Magistrate, came to the conclusion that had been fully brought home to the petitioner, and convicted him.
5. In appeal before the learned Additional Sessions Judge, a two-fold contention was raised; firstly, that the Local Police was inimical to the petitioner whose mother had filed a complaint against the S. H. O., Police Station, Jalalpur Jatan and secondly, that the Husking Mill belonged to his brother, and as such, he was not covered by the definition of the expression Miller as defined in clause 2(9) of the West Pakistan Supplementary Paddy and Rice Control Order, 1958. It was also contended before the learned Additional Sessions Judge that according to the jurisdiction assigned to different officials of the Foodgrain Department for sealing of Husking Mills, the petitioner's Mill fell within the jurisdiction of Muhammad Naseem, Food Inspector, who though originally cited as a prosecution witness, was given up. Having elaborately dealt with the above conten--tion, the learned Additional Sessions Judge found no force and substance in any of them and accordingly upheld the convic--tion of the petitioner but reduced the sentence from one year to that of six months' R. 1.
6. Learned counsel for the petitioner has raised the follow--ing contentions before me: ---
(i) That under clause 11 (d) of the relevant order the District Magistrate could direct the sealing of the Mills only after he had reasons to believe that unauthorised husking of paddy was either being done or was likely to be done and not otherwise, whereas there was nothing to indicate either in the order itself or even otherwise that reasons were in existence to give his; to such a belief in the mind of the learned District Magistrate justifying the passing of such an order.
(ii) That according to the above provision that order had to be passed for a specified period deemed proper in the circumstances. But no such time limit was specified in the order which omission per se was good enough to render it invalid. Reliance was placed in this behalf on Saiyyad Abul A'la Maudoodi etc. v. The Government of West Pakistan etc. PLD1964SC673.
(iii) That there was nothing to indicate that the petitioner who had denied- the ownership of the Mill which belonged to his brother as clearly indicated by document Exh. D. A. Could be reasonably and legitimately covered by the defini--tion of the expression "Miller" as given in clause 2(q) of the Rice Paddy Control Order.
(iv) That there was ample evidence to show that the Local Police was hostile to the petitioner and that was the reason why no respectable of the locality was made to join the raiding party except Noor Din whose evidence does not fall in line with that of the other P. Ws.
7. As regards the contention that the petitioner was falsely implicated in a trumped up case as a result of personal vendetta of the Local Police, having considered the relevant discussion on this issue in the impugned judgment, I see no reason to take a different view as it is inconceivable that Fazal Hussain Shah, Inspector Foodgrains, who had raided F the Mill in compliance with an order of the District Food Controller, may be deemed to have played the game of the police unless It were also presumed that he had been collusively deputed by the District Food Controller in a mala fide manner. As regards the other contention that the petitioner not being the owner of the Mill was not covered by the definition of the expression `Miller', it is equally without force as a Miller need not necessarily be the owner of the Mill but anybody A engaged in this process of milling as clearly indicated by the expression; "any other person actually running the rice Mill at any particular time" used -in the definition of the expression, would be covered by it.
8. Likewise nothing, in my opinion, would turn on the so-called discrepancy in regard to the time, place and mode of Noor Din, P. W. 3, joining the raiding party. Although normally it should be incumbent on the raiding party to join respectables of the locality in such cases, their failure to do so might be based on good reasons and unless the official incharge of the raiding party is not specifically questioned on the point so as to enable him to explain the position, no adverse presumption could be raised against the prosecution on that score.
9. The legal contention raised by the learned counsel for the petitioner does not, however, appear to be without force. Although having carefully considered the Supreme Court authortiy in Maulana Maudoodi's case relied upon by the learned counsel, I find that no analogy can be reasonably drawn out between that case where a political party was banned and the - one before me, iii which temporary restrictions on the husking of paddy are imposed in pursuance of legal provisions made in the larger public interests, yet I find a two-fold lacuna in the order of District Magistrate whose alleged infringement formed the basis of the petitioner's conviction in the instant case. The relevant provision contained in clause 11(d) of the Order lays down two legal requirements in regard to the passing of a sealing order; firstly, the District Magistrate should have "reasons to believe" that unauthorised huskin of paddy is being done or is likely to be done in the Mill in question and secondly, the sealing of the Mill may be for a specified period deemed proper in the discretion of the District Magistrate. Obviously, therefore, before passing such a restrictive order, the District Magistrate should have after proper application of his mind, satisfied himself that circumstances did exist to give rise to a belief in his mind that unauthorised husking being done or likely to be done to prevent which a sealing order had to be made as of necessity. Secondly, the imposition of time limit for which such a restriction is to continue has also to be specified. On the contrary a perusal of the relevant order of the District Magistrate clearly shows that no period has been specified in the prohibitory order, nor does it refer .To the District Magistrate's satisfaction as to the existence of circumstances amounting to sufficient cause to believe as per definition of the expression "reasons to believe" given in section 26 of the P. P. C. That unauthorised husking was either being actually done or was likely to be done. This would clearly show that the order had been passed by the District Magistrate in a perfunctory manner without applying his mind. In this view of the matter, this contention prevails, and as such, inevitably renders the conviction illegal, which is accordingly set aside. The revision is allowed.
10. Since, however, the very basis of the conviction disappears, the consequential order passed under clause 14 of the Supplementary Rice and Paddy Control Order also automa--tically goes with it and is hereby set aside. The authorities are accordingly directed to restore the rice and paddy to the petitioner, taken into possession by the Inspector Foodgrains at the time of raiding the Mill. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.