The petitioners, eight in number, all belonging to District Layallpur and engaged in either the preparation or sale of gur, khandsari or shakar have invoked sections 435 and 439 of the Criminal Procedure Code for challenging an order of the Additional Deputy Commissioner invested with the powers of District Magistrate, Layallpur, dated 2-11-1973, passed under section 144 of the Criminal Procedure Code prohibiting the export of gur, shakar and khandsari to any place outside that District.
2. The challenge to the order is that the power has been exercised on a ground not relatable to the purpose for which that power has been conferred making it thereby a case of colourable exercise of power, that the requirements of the country as distinguished from the locality over which the Magistrate has jurisdiction have played a decisive role in determining the need for such an order, and that in view of my interim order in Criminal Revision No. 95/1973 it is a clear case of abuse of power.
3. The District Magistrate was represented by Mr. Irshad Ahmad, Advocate who was assisted by a Head Clerk of the office of the District Magistrate: The learned counsel was allowed an opportunity to file a statement of facts or any other material which formed the basis of the order or which he might have liked to be taken into consideration for dealing with his petition. He contented himself with the arguments. Hence this decision proceeds on the averments made in the petition not denied as a fact and on he basis of the arguments addressed at the hearing.
4. The relevant portion of the order which requires consideration is reproduced hereunder "Whereas it has been brought to my notice that gur, shakar and khandsari is being sent outside the Layallpur District in a large scale which is likely to seriously affect the production of Sugar causing scarcity and shortage of Sugar in the Country resulting in disturbance of public peace and tranquillity.
(2) And, whereas in my opinion there are sufficient grounds to proceed under section 144, Cr. P. C.
And the directions hereinafter appearing are necessary to prevent danger to public peace and tranquillity.
(3) Now, therefore, I, Rashid Ahmad, District Magistrate, Layallpur in exercise of the powers conferred on me under section 144, Cr. P. C. Hereby prohibit the export of gur, shakar and khandsari to any place outside the District of Layallpur.
(4) This order shall take effect from the date of issue and shall remain in force for a period of two months."
5. Section 144, Cr. P. C. Which has been invoked for passing this order is contained in Chapter XI of the Criminal Procedure Code dealing with "Temporary Orders in Urgent Cases of Nuisance or Apprehended Danger" and is reproduced hereunder:-- "(1) In cases where, in the opinion of a District Magistrate, Sub---Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the Third Class) specially empowered by the Provincial Government or the District Magistrate to act under this section there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order, stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, ,annoyance or injury, or risk of obstruction, annoyance or injury, 10 any person lawfully employed, or danger to human life health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in eases where the circumstances do not admit of the serving m due time' of a notice upon the person against whom the order is directed, ire passed, ex parte.
(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting 3 particular place.
(4) Any Magistrate may, either on his own Motion or on the application of any person aggrieved, rescind or alter any order made under that section by himself or any Magistrate subordinate to hint, or by his predecessor-in-office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him, either in person or by pleader and showing cause against the order; and, if the Magistrates rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or any affray, they Provincial Government by notification in the official Gazette otherwise directs."
6. The need for conferring such a power on the local officers, the nature and extent of the power conferred, the manner of its exercise, the consequences of violating an order passed in exercise of such a power, and the duty of the Courts in examining the case of alleged breaches of such orders have all been succinctly described by the framers of the Pakistan Penal Code while explaining the punitive provision contained in section 188 of the Penal Code. Their observation is as follows:-- "We have, to the best of our ability, framed laws against acts which ought to be repressed at all times and places, or at times and places which it is in our power to define. But there are acts which at one dune and place are perfectly innocent, and which at another time or place are proper subjects of punishment, nor is it always possible for the legislator to say at what time or at what place such acts ought to be punishable.
Thus it may happen that a religious procession which is in itself perfectly legal, and which while it passes through many quarters of a town, is perfectly harmless cannot without great risk of tumult and outrage be suffered to turn down a particular street inhabited by persons who hold the ceremony in abhorrence; and whose passions are excited by being forced to witness it. Again, there are many Hindoo rites which in Hindoo temples and religious assemblies the law tolerates, but which could not with propriety be exhibited in a place which English gentlemen and ladies were in the habit of frequenting for purposes of exercise. Again, at a particular season hydrophobia may be common among the dogs at a particular place., and it may be highly advisable that all people at that place should keep their dogs strictly confined. Again, there may be a particular place in a town which the people are in the habit of using as a receptacle for filth. In general this practice may do no harm, but an unhealthy season may arrive, when it may be dangerous to the health of the population, and under such circumstances it is evidently desirable that no person should be allowed to add to the nuisance. It is evident that it is utterly impossible for the Legislature to mark out the route of all the religious processions in India, to specify all the public walks frequented by English ladies and gentlemen, to foresee in what months and in what places hydrophobia will be common among dogs, or when a particular dunghill may become dangerous to the health of a town. It is equally evident that it would be unjust to punish a person who cannot be proved to have acted with bad intentions for doing today what yesterday was perfectly innocent act or for doing in one street what it would be perfectly innocent to do in another street, without giving him some notice.
What we propose, therefore, is, to empower the local authorities to forbid acts which these authorities consider as dangerous to the public tranquillity, health, safety or convenience and to make it an offence ire a person to do anything which that person knows to be so forbidden, and which may endanger the public tranquillity, health; safety or convenience. It will be observed that we do not give to the local authorities the power of arbitrarily making anything an offence; for unless the Court before which the person who disobeys the order is tried shall be of opinion that he bag done something tending to danger the public tranquillity, health, safety car con--venience, he will be liable to no punishment. The effect of the order of the local authority will be merely to deprive the person who knowingly disobeys the order on the plea that he had no bad intentions. He will riot be permitted to allege that if he has caused harm., or risk of harm, it was without his knowledge.
Thus, if in a town where no order for chaining up of dogs has been made, A suffers his dog to run about loose, A will be liable to no punishment for any mischief which the animal may, do, unless it can be shown that A knew the animal to be dangerous. But if an order for confining dogs has been issued, and if A knew of that order, it trill be no defence for him to allege, and even to trove, that he believed his dog to be perfectly harmless, If the Court think that A's disobedience has caused harm, of risk of harm, A wilt be liable to punishment. On the other hand if the Court think that there was no danger, and that the local order was a foolish one, A will not be liable to punishment.
We see some objections to the way in which we have framed this part of the law, but we are unable to frame it better on the cane hind, it is, as we have shown absolutely necessary to have soma local rules which shall not require the sanction of the Legislature. On the other hand, we are sensible that there is the greatest reason to apprehend much Petty tyranny and vaxation from such rules; and this although the framers of these rules may be very excellent and able man. There is scarcely any disposition in a ruler more prejudicial tax the happiness of the people than a meddling disposition. Yet experience shows us that it is a disposition which is often found in company with the best inten--tions, with great activity and energy, and with a sincere regard for the interest of the community. A public servant of more than ordinary zeal and industry, unless he have very much more than ordinary judgment, is the very man who is likely to harass the people under leis safe with needless restrictions. We have, therefore, thought it necessary to provide that no person should be punished merely for disobeying a focal order, unless it tic made to appear that the disobedience has been attended with evil or risk of evil. Thus no person will be punished for disobeying an idle and vexatious order."
7. A study .Of the provisions of section 144, Cr. P. C. Had section 188. P. P. C. Makes it clear that the protection afforded to the individual while conferring such an exceptional power on the local officers was, broadly speaking, on three fronts. Firstly the jurisdictional facts, the existence of which alone could, justify the exercise of that power were particularized in fairly strong and clear words.
Secondly, it was expressed to be a power temporary in its nature and meant for meeting local emergencies. Thirdly, even an intentional violation or breach of such an order did not per se make the offender liable to punishment under the law unless certain other ingredients susceptible of judicial proof were also established as a fact.
8. For the purposes of this revision petition it is only the first protec--petition which is required to be examined.
9. An analysis of the impugned order yields the following propositions:-
(i) Gur, Shakar and Khandsari is being sent outside the Layallpur District on a large scale.
(ii) Such an export of these commodities is likely to seriously affect the production of sugar.
(iii) Such an effect on the production of sugar is going to cause scarcity and shortage of sugar in the country, and
(iv) The scarcity and shortage of sugar in the country will result in disturbance of public peace and tranquillity (in Layallpur).
10. One can with some reasoning demonstrate the correctness of the first three propositions none of which refers to such a local condition; situation or emergency as may attract the exercise of power under section 144, Cr. P. C. The link is sought to be provided by proposition No. (h). A tom modify may be scarce in the country, but not in a particular locality, or in a locality but not in tree country. It is not the scarcity in the country which attracts the emergency power of the Magistrate, but scarcity of a particular nature in the locality within his jurisdiction. Not only there must be scarcity, because one tray learn to live with it, but a scarcity which, a stated, is likely to result "in disturbance of public peace and tranquillity". Therefore sugar had to be scarce in Layallpur or a part of Layallpur and not necessarily in the country and the shortage anticipated had to be such as could threaten public peace. There is an omission to state this fact.
11. The order does not conform to law in yet another aspect. An order under section 144, Cr. P. C. Can be passed only where "immediate prevention or speedy remedy is desirable". The involved process set outs above in the four propositions makes it clear that no immediate preventional or speedy remedy is aimed at. Instead the order is directed to ensure for the Sugar Mills abundant supply of sugarcane from even outside the Zones so that the sugar available in the country is as much as the Mills can produce and the gap between the consumption and production is reduced as far as is locally possible. By embarking on such a venture by resort to section 144, Cr. P. C. a Magistrate is evidently straining this Law to a breaking point.
12. During the arguments three explanations were given for such an order. The first was that because of export of these commodities outside the District prices had risen in the District causing a law and order problem. This explanation has to be rejected outright, because shortage of sugar does not figure in it while it is pointedly mentioned in the order itself. The second explanation was that on finding a good business in making Gur etc. More sugarcane was diverted towards the preparation of these commodities resulting in somewhat indifferent Supply to the Sugar Mills, a number of which are located in that District. This explanation does not at all present a law and order situation but it is a routine feature of all commercial activity, an interplay of demand and supply. Even if it were to present a law and order problem the direct approach to it would be to restrict the preparation of Gur, Shakar and Khandsari and pot its export. The third explanation was that the Food Department had moved the District authorities for such an action is order to ensure uninterrupted supply of an essential commodity, i.e. Sugar to the consumers. The opinion has to be formed by the Magistrate invoking section 144, Cr. P. C. The guiding principle for him for exercising this power has been particularized in the factual requirements laid down in section 141, Cr. P. C. And the District Magistrate invoked the "public peace and tranquillity" ground alone which was no part of the duties of the Food department. Therefore tone of these explanations is capable of justifying the impugned order.
18. The learned counsel for the State, for supporting on the legal plane the impugned order, relied on a decision of this Court in Nazar Hussain alias Ranjha v. 'District Magistrate, Sahiwal (PLD 1972 Lah. 836). In that case the Military authorities of the Military Farm, Okara had complained to the District Magistrate, Sahiwal about the inadequate supply of Milk and Milk Products to the Armed Forces deployed along the border. It was recom--mended by him that in order to meet the requirements of the Armed Forces imposition of ban on the export of Milk and Milk Products was imperative. The District Magistrate on the information so supplied had formed the opinion that the situation unless met by remedial measures passed a danger to human life or safety and he passed the order. That order fulfilled the requirements of the Law because if the information supplied was correct, and there was no averment or argument advanced that such an information was factually incorrect, then the situation obtaining obstructed person lawfully deployed on the border and presented danger tea human life, health or safety. The presence of jurisdictional fact was not seriously contested in that case. Another feature of that decision is that no part of the jurisdictional fact was outside the District. These factors make that decision or the observations made therein inapplicable to the facts of this case.
14. A somewhat elaborate treatment of the legal questions arising in tab petition ha, become necessary because an identical question had been raised earlier before me in Criminal Revision No. 95/1973, calling in question an order passed by the District Magistrate, Layallpur. That petition had not came to final decision as, sat the time of admitting it, I hail given notice in a prayer for suspension of the order and, after hearing a representative of the Advocate-General, passed an order, the relevant portion of which was as follows:- "Further, Prima facie, the District Magistrate's authority does not extend to deal with the National Problems as such belt the power under Section 144, Cr. P. C. Is to be invoked for meeting problems of the nature described in section 144, Cr. P. C. Peculiar to the Locality of which he has been made incharge."
15. I find that the conditions laid down in section 144, Cr. P. C. And necessary for the imposition of an order under that section do not find a mention in the impugned order and are not otherwise made out. It therefore does not satisfy the requirements of Law. . The revision petition is accepted and the order is set aside.