1. ' ALLAH DINO G. MEMON, J.--This Acquittal Appeal is directed against the order dated 1st September, 1988, passed by the learned Assistant Commissioner and S.D.M., New Karachi, acquitting respondents Nos. 1 to 3, under section 249-A, Cr. P.C.
2. ' The brief facts giving rise to the present acquittal appeal are that the Government of Pakistan/appellant filed a complaint against M/s Continental Oils Limited and its three directors under Rule 44 of Pakistan Petroleum (Refining Blending and Marketing) Rules, 1971, read with section 3 of the Regulations of Mines and Oil Fields and Mineral Development (Government Control) Act XXIV of 1948, before the learned Magistrate on 27-9-1984, which reads as follows:- "The complainant above named begs to state as under:-
(1) That in order to make provisions for certain matters connected with the regulation of Mines and Oil Fields and Mineral Development under the Federal Control, an Act called the Regulation of Mines and Oils Field and Mineral Development (Federal Control) Act, 1948, hereinafter referred to as the Act, was promulgated, which, inter alia, provided for powers to make rules and also provided provisions for penalties for the breach of rules. A photo copy of the Act is filed herewith as Annexure 'A'.
(2) That in exercise of the powers conferred by section 2 of the Act, Federal Government was pleased to make the Pakistan Petroleum (Refining, Blending and Marketing) Rules 1971, a copy whereof is filed herewith as Annexure 'B'. For the sake of brevity those rules shall hereinafter be referred to as 'the Rules."
(3) That among others, the rules provide that no person shall sell, purchase, reclaim, recondition or refine, used lubricating oils by any method whatsoever except with the prior permission, in writing of the Authority/Complainant (Rule 18 of the Rules refer).
(4) That the procedure prescribed for such permission is that the application for permission to set up a blending plant or to produce finished lubricating oils or greases or refined or reclaimed lube oils or reclaimed while oil may be invited by authority through the press as and when required; whereupon, an application is to be made in triplicate in Form-I, accompanied by feasibility report containing information required and treasury challan of Rs,1,000 deposited in Government Treasury which shall in no case be refunded (Rule 17 of the Rules refers).
(5) That it is upon the receipt of the application in the aforesaid manner that the Authority/Complainant is to grant the permission or to refuse the same.
(6) That if any such plant, as is mentioned in the preceding paragraph is established/installed; or any person who contravenes the provisions of any of the rules, he, without prejudice to any other action, is punishable for a term which may extend to three years or with fine or with both within the meaning of rule 44 of the Rules.
(7) That lately, it came to the notice of the Authority/Complainant that the accused persons have installed an unauthorised plant at the address shown in the title of the Complainant (New Karachi Police Station) and have failed to remove despite a "point blank refusal" by Authority to continue the same.
(8) That the accused persons are continuing with production of reclaimed base oil in contravention of the provisions of the Act and Rules referred to above and are liable to be dealt with according to law.
3. ' That complaint, is, therefore, hereby made that the accused persons be summoned to the Court to be dealt with according to law.
4. ' Karachi: ;'Dated 27-9-1984. Complainant Advocate for Complainant....
5. ' On receipt of the above complaint, the learned Magistrate was pleased to pass an order that the statement of the complainant be recorded under, section 200, Cr. P.C. The statement of the complainant was recorded on 27-9-1984, and the process was issued against the respondents by learned A.C.M. II, (West), Karachi.' The respondents Nos. 1 to 3 were served, and thereafter, new district namely, Karachi (Central) was created and the case was transferred to the Court of learned Assistant Commissioner and S.D.M. New Karachi. That on 3-7-1988, the respondents/accused moved an application under section 249-A, Cr.P.C. For acquittal of the accused, and after hearing the parties, the learned Magistrate was pleased to acquit the respondents vide order dated 1-9-1988. The present appeal is directed against the above order of acquittal.
6. ' We have heard Mr. Nooruddin Sarki, learned counsel appearing for the appellant, M/s. Khalid M.
7. Ishaq and Muniruddin AM, learned counsel appearing for the respondents, Mr. Laiq A. Jaferi, learned counsel appearing for the State, and have gone through the R & P of the case.
8. ' It was contended by Mr. Nooruddin Sarki, learned counsel appearing for the appellant that the complainant had appeared before the Court on a number of hearings but he was not examined and, therefore, he could not be blamed for the delay of disposal of the case. It was further contended by Mr. Nooruddin Sarki, learned counsel appearing for the appellant that the provisions of rules 16 and 17 of Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971, were mandatory, the department had not invited applications, and the Authority/Government had refused permission to the accused for installation of the plant vide letter dated 12th May, 1983, and, therefore, the order passed by the learned Magistrate acquitting the respondents was illegal. He has further relied upon the undertaking given by the respondents on 1-3-1983, that in case they are refused permission they will stop functioning of their plant. He has further contended that decision given by learned Wafaqi Mohtasib (Ombudsman) was in the case of Adam Lubricant Limited, and the same was not relevant and binding as far as the present case was concerned. That in spite of getting intimation, regarding refusal from the Ministry of Petroleum, the accused have continued operation of their plant in contravention of the provisions of Pakistan Petroleum (Refming, Blending and Marketing) Rules, 1971, and therefore, they had committed an offence under Rule 44 of the above Rules and the learned Magistrate has erred in acquitting the respondents.
9. ' Mr. Khalid M. Ishaq, learned counsel appearing for the respondents has contended that "point- blank refusal" by the authority to accord sanction and to be based on reasons as envisaged by Rule 18 of the above Rules and the application could not be rejected without giving reasons. That in view of the decision of Wafaqi Mohtasib (Ombudsman) it was not necessary for the respondents to obtain permission from the Ministry of Petroleum and Natural Resources. That the order of the Wafaqi Mohtasib (Ombudsman) could only be challenged before the President under President's Order No, 1 of 1983, and since no appeal was filed the order has attained frailty. ,That the respondents have spent huge amount over installation of the plant and it will be harsh and unconscionable if they are asked to close down their plant. He has further contended that the administrative instructions issued by the Authority are as effective and binding as statutory rules. In this connection, the learned counsel has relied upon the case of Province of West Pakistan through the Secretary, Social Welfare and Local Government Department and another v. Choudhry Deen Muhammad and another PLD 1964 SC 21.
10. ' Mr. Muniruddin Alvi, learned counsel appearing for the respondents has adopted the contentions raised by Mr. Khalid M. Ishaq.
11. ' Mr. Laiq A. Jafferi, learned counsel appearing for the State has contended that looking to the circumstances of the case, the prosecution of the respondent was not justified and they were rightly acquitted.
12. ' We have considered the contentions of the learned counsel, and have gone, through the record.
13. The diary of the case shows that the complainant appeared in the Court on various dates and number of adjournments were obtained by the accused and, therefore, we agree with Mr. Nooruddin Sarki, learned counsel, appearing for the appellant that the complainant could not be blamed for the delay which occurred in the disposal of the case.
14. ' In order to appreciate the legal contentions raised by the learned counsel, it will be appropriate to refer to Rules 16 and 17 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971, which read as under:--
16. Permission compulsory.--(1) No person shall set up a blending plant or white oils production plant or produce finished lubricating oils (grease or white oils) for sale except with the prior permission in writing of the Authority.
(2) No blending plant shall continue to function unless it obtains permission in writing of the Authority before the 31st day of March, 1974.
15. 16-A. Reclamation etc. Of used lubricating oils prohibited.--No person shall sell, purchase, reclaim, recondition or refine used lubricating oils or used white oils by any method whatsoever, except with the prior permission in writing of the Authority.
17. Applications for permission.--(1) Applications for permission to set up a blending plant or reclamation plant or white oil production plant or to produce finished lubricating oils or greases or refined or reclaimed lube oils or reclaimed white oils may be invited by the Authority through the press if and when required.
(2) An application made under sub-rule (1) shall be in triplicate in Form I and shall be accompanied by a feasibility report containing the information required in that form and a treasury challan for one thousand rupees deposited in a Government Treasury under the Head of Account `XXXVI Misc. Deptt.. Miscellaneous' as fee which shall in no case be refunded.
18. Authority may grant or refuse permission.--(1) The authority may grant the permission asked for, if it is satisfied that the applicant has past experience and adequate finances or can make financial arrangements for the collection and storage of used lubricating oils and suitable machinery for reclaiming used lubricating oils in accordance with internationally accepted processes/satisfaction of the Authority; provided that the Authority may, in the public interest, refuse to grant such permission; and (1-A) In case of refusal under the proviso to sub-rule (1) to grant the permission asked for an appeal shall lie against the decision of the Authority to the Federal Government.
(2) No person shall, except with the prior permission of the Authority in writing make any major alteration, an addition to or extension of the blending plant (or the reclamation plant) as approved by the Authority.
16. The bare reading of Rule 16 will show that prior permission of the Authority was necessary under the Rules. However, the contention of Mr. Nooruddin Sarki, that the application under Rules 17, could be made by a party only when applications were invited by the authority was untenable inasmuch as there is no prohibition in Rules 17 and 18 that no application could be made unless the same were invited by the Ministry of Petroleum and Natural Resources. As far as Rule 18 was concerned, the Authority was expected to give reasons for refusal, as authority had to satisfy itself whether the applicant has past experience and adequate finances, can make financial arrangements and has also proper arrangements for the collection and storage of used lubricant oil and suitable machinery for re-claiming used lubricant oil in accordance with international accepted process conforming to the specification enforced in Pakistan. The letter dated 12th May, 1983, intimating (point blank refusal) of the authority does not contain any reasons nor it shows that the above circumstances were taken into consideration.
17. ' Mr. Nooruddin Sarki, learned counsel appearing for the appellant has drawn our attention to the application dated 1-3-1983 moved by the Director (Project) of M/s. Continental Oils Limited to the Secretary Ministry of Petroleum and Natural Resources, which is at page 233 of the lower Court file, and shows that Secretary, Ministry of Petroleum and Natural Resources had given no objection for running the plant on the undertaking of the respondents that in case, they will not get official permission they will stop production.
18. However, in view of the fact that Wafaqi Mohtasib had accepted the application of Mr. Ghulam Adam, director of Adam Lubricants Limited, Karachi, under similar circumstance, the comments were called from all the Ministries before the N.R.I. Scheme was submitted to the E.C.C. And then to the cabinet for promulgation, and no objection was raised by any Ministry. The Administrative C instructions issued by competent authority were binding as statutory rules as observed in the case of the Province of West Pakistan v. Din Muhammad and others PLD 1964 SC 21. The Secretary Ministry of Petroleum and Natural Resources had allowed temporary permission to the respondents on the basis of their undertaking dated 1-3-1983; that in case they did not get permission they will stop their plant functioning, and the fact that machinery was imported under N.R.I. Scheme sponsored by Ministry of Industries, we are not inclined to interfere with the acquittal order, and the appeal is accordingly dismissed.
19. ' However, in view of the fact that even Wafaqi Mohtasib (Ombudsman) has observed in the case of Ghulam Adam that the Petroleum Ministry was not bound to supply Base Lube Oil to the petitioner, as such a right can arise only out of contract or provisions of law if any (underline is mine). The respondents had given undertaking that in case they were not granted permission they will stop production. It is alleged that the Ministry of Industries had not consulted the Ministry of Petroleum and Natural Resources, the respondents shall apply to the complainant for necessary permission within one month, specially because the respondents want the Government to supply them Base Lube Oil for their plant. We hope that looking to the peculiar circumstances of the case, the Government will consider the case of the respondents favourably.
20. ' We had decided the above appeal on 5-3-1990 by a short order and these are the reasons for the same.