1. ' By this common order I intend to dispose of the above 5 Cr. Acquittal Appeals as they involve the similar points of law and facts.
2. ' Briefly the facts of the present appeal are that the present appellant, a public servant was authorized and filed a complaint on behalf of Market Committee before the lower Court individually against the respondent No,1 in each case. It is stated in the complaint that the appellant visited the place of business of the respondent No,1 and found that the respondent No,1 was dealing with the Agricultural Produce (Wheat) and as he is licence holder/dealer of Market Committee under sections 4 and 6 of Agricultural Produce Market Act 1939 (hereinafter referred to as the Act) but failed to pay the Market fee. The outstanding amount was specified in the complaint. The respondent No,1 was served with notices by the Secretary of the Market Committee for the payment of arrears of the Market fee but the respondent did not comply and therefore the appellant submitted a complaint under rule 52 of Agricultural Produce Markets Rules 1940 (hereinafter referred to as the Rules). The learned trial Court framed the charge against the respondent No,1 under rules 29 and 30 of the rules as punishable under rule 52. After framing of the charge the present respondent No,1 in each case moved an application under section 249-A Cr.P.C.
3. For his acquittal and the learned trial Court after hearing the advocates of the parties passed the impugned order whereby the respondent No,1 was acquitted. Being aggrieved the appellant has filed the present appeal.
4. ' I have heard the learned advocates for the parties. Mr. Kalandar Bux Phulpoto, Advocate for appellant has submitted that the learned trial Magistrate has misinterpreted the provisions of rules and has acted with haste in passing the impugned order. He has submitted that it is an admitted position that respondent No,1 had acquired the licence but the market fee was not paid which was to be paid under rule 29 and account is to be maintained of transaction and fees as required under rule 30 of the above rules. He has further submitted that Rule 29(2) specifically provides; "(2) Fees prescribed under sub-rule (1) shall be leviable as soon as an agricultural produce is bought or sold by a licensee. In case the buyer and the seller are both licensees, the fee shall be paid by them in equal shares, otherwise it shall be paid in whole by whichever of them is a licensee."
5. ' He has further submitted that the Magistrate has simply accepted the submissions of the respondent No,1 that market fee was paid by Food Department at the time it purchased the commodities from the growers. This according to learned counsel is inference by the learned Magistrate and no such proof is brought on record and the respondent No,1 would not escape his liability of payment of the market fee as per above rules. He has further submitted that this offence was punishable under rule 52. He has further submitted that in the present case a charge had been framed and thereafter no further evidence was recorded before the passing of the impugned order and therefore since once the Magistrate had framed the charge there were no grounds at that stage for passing the impugned order. He has placed reliance on the case of Malik Muhammad Ibrahim v. The State and 4 others 1985 P Cr. L J 929 relevant page 931 wherein a D.B. Of this Court has held:-- "It is true that a trial Court has the power to pass an order under section 249-A Cr.P.C. At any stage including at the initial stage if it finds that the process which he had issued should not have been issued. In the present case the complainant disclosed prima facie a criminal case and the learned Magistrate after holding preliminary enquiry issued process. No further evidence was recorded for the reason that two of the accused were not served with the process. There was no default on the part of appellant in producing the witnesses or there was factually no allegation against the appellant that he was delaying the trial. In the background of the above facts, in our view the learned trial Court was not justified in passing an order under section 249-A Cr.P.C."
6. ' Mr. Shabbir Ahmed Awan, learned counsel for the respondent No,1 has submitted that once the market fee has been paid by the Food Department, respondent No,1 cannot be held liable for payment of the market fee which would amount to double recovery of the same charge by the market committee and the inference of the Magistrate to this effect is based on sound and cogent reasons. I am afraid the above contention of the learned counsel cannot be accepted at this stage in absence of any proof to the effect that the market fee in total was factualy paid by the Food Department. In view of the above discussion, I accept the present appeals and order to set aside the impugned order passed by the lower Court and remand the case back to the trial Court with the directions to proceed with the case from the stage when the order under section 249-A Cr.P.C.
7. Was passed. However, the respondent No,1 will be at liberty to repeat application under section 249-A Cr.P.C. After recording of some evidence if they feel that a case under section 249-A Cr.P.C. Is made out.