' MUHAMMAD ISLAM BHATTI, J.--The District Magistrate, Rahimyar Khan passed an order on 9-6-1994 under section 144, Q.P.C. Prohibiting the movement of wheat and wheat products by any means of transportation outside the Rahimyar Khan District claiming that its export was causing great shortage of wheat and wheat products in the deficit areas of Rahimyar Khan District resulting in rise in prices of wheat and wheat products and thereby it was likely to cause disturbance of peace and tranquility. The text of the order is reproduced below for facility of reference:-- "Whereas it has been made to appear to me that a large quantity of wheat and Atta are being exported from Rahimyar Khan District to the areas beyond Province of Punjab causing great shortage of wheat and Atta in the deficit areas of Rahimyar Khan District and consequential rise in prices of wheat and Atta and thereby it is likely to cause disturbance of public peace and tranquility.
(2) And whereas in my opinion, there are sufficient grounds for proceeding under section 144, Cr.P.C. 1898 and immediate prevention is desirable and the directions hereinafter appearing are necessary in order to stabilize the prices of wheat and Atta.
(3) Now, therefore, I, Syed Raees Abbas Zaidi, District Magistrate, Rahimyar Khan in exercise of the powers conferred upon me under section 144, Cr.P.C., 1898 do hereby prohibit the movement of wheat and Atta by any means of transportation outside the Rahimyar Khan District except with prior permission of the undersigned. The Government agencies are exempted from the operation of this order.
(4) This order shall take effect forthwith and shall remain in force for a period of two months, unless withdrawn or modified earlier.
(5) Notwithstanding the expiry of this order everything done, action taken, obligation, liability, penalty or punishment incurred, investigation, inquiry or proceedings pending jurisdiction of powers conferred shall be valid and continued to be valid and fresh proceedings against the offenders in the Courts of Magistrates having 1st Class powers under the Criminal Procedure Code, 1898 and their punishment in respect of the offences committed during the enforcement of this order shall be continued or launched as if this order had not expired.
(6) This order shall be given wide publicity by beat of drum, by affixing copies thereof on the notice boards of District Courts, all Tehsil Offices, Office of the Superintendent of Police, Rahimyar Khan, Local Bodies Offices, all Police Stations, by publication in the Official Gazette and by broadcasting through Radio Pakistan, Bahawalpur.
(7) GIVEN UNDER MY HAND AND SEAL OF THE COURT THIS 9TH DAY OF JUNE, 1994."
2. The petitioners M/s. Asia Flour Mills (Pvt.) Ltd. And 6 others, have challenged this order through this Constitutional petition claiming that ban has been imposed wrongly by the District Magistrate at the behest and instance of the other respondents.. This petition was put up on 22-6-1994.
Respondents 1 to 6 were directed to submit their parawise comments which they accordingly did on 21-7-1994. The respondents entered appearance through the learned Assistant Advocate- General.
3. It was on 18-10-1995 that this petition was ultimately admitted to regular hearing and in view of the points involved, the learned Single Judge after taking into consideration the submissions of the learned counsel for the petitioners that under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners were entitled to conduct any lawful trade or business and the same can be regulated by a licensing system but not through the imposition of section 144, Cr.P.C. And also that under Article 151(4) of the Constitution, a Provincial Assembly can impose reasonable restriction on the movement of wheat to protect any serious shortage in the Province through an Act if it was made with the consent of the President but in the instant case no such law of imposition of any restriction on the movement of wheat has been enacted; felt that this being a matter of public importance should be decided by a Division Bench of this Court. He, therefore, referred the matter for the constitution of a larger Bench. The petition has, therefore, been placed before this Division Bench.
4. It may be pointed out that during the pendency of the petition, the District Magistrate remained passing successive order under section 144, Cr.P.C. Such an order was passed on 28-8-1994 and again on 30-10-1994. The latter orders compelled the petitioners to file an amended petition the permission regarding which was granted by this Court on 13-12-1994. In the amended application, the petitioner challenged the orders dated 28-5-1994, 6-6-1994, 8-6-1994 and the last dated 30- 10-1994, in succession of earlier orders.
5. We have given a patient hearing to the learned counsel for the petitioner and the learned A.A.-G.
The learned counsel for the petitioner has taken us through the Annexures A to E for contending that the petitioners being licensees under the West Pakistan (Food grain Licensing Control) Order, 1957, purchase the wheat from the open market and are also provided wheat by the Food Department according to the milling capacity of each Mill and then the flour and the allied products are independently marketed by them. The free marketing and free trading carried out by the petitioners were never hampered or checked by any of the respondents in the past but of late respondents 2 to 6 in prosecution of the order passed by the Director, Department of Food, Punjab, Lahore, started impeding the transit of wheat and wheat products through the District of Rahimyar Khan. According to him, an order under section 144, Cr.PC could be justified only if the preconditions necessary to resort to section 144, Cr.PC were in existence and that order could also be of temporary nature, but in the instant case there is nothing in the impugned order to show that the prohibition was either necessitated by a situation of emergency or could cause any direct annoyance to the residents of Rahimyar Khan District. The impugned order, therefore, cannot be sustained because as per his assertion, the petitioners who were likely to be affected by this order were also not given any prior notice of such a prohibitory action. For this he has placed reliance on what has been laid down in Muhammad Rafi and 27 others v. Ahmad Saleem, Assistant Commissioner, Lahore (1976 PCr.LJ 977) and Mueez All Hatim All and others v. The State (PLD 1966 (W.P.) Lahore 675.
6. He has then urged that Article 151 of the Constitution of Islamic Republic of Pakistan, 1973 also guarantees trade, commerce, or intercourse throughout Pakistan to be free, subject, however, to the powers of Parliament to impose by law such restriction on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in public interest. According to him, Article 151(3) of the Constitution then provides that a Provincial Assembly or a Provincial Government shall not have power to make any law or take any executive action prohibiting or restricting the entry into or the export from the Province of goods of any class or description. The Provincial Assembly under Article 151(4) of the Constitution, however, has power by law to impose any reasonable restriction in the interest of public health, public order or morality or for alleviating any serious shortage in the Province of essential commodity, but with the consent of the President. For this he has relied on what has been laid down in Mirpurkhas Sugar Mills Ltd. v.
District Council, Tharparkar and 2 others (1990 MLD 317) (Karachi).
7. He has also contended with vehemence that the petitioners' goods taking motion from Bahawalpur District only seek free passage from the District of Rahimyar Khan without becoming the part and parcel of the mass of the wheat and its products of Rahimyar Khan District. He is of the view that in order to term a commercial activity as export, the goods seeking transit must become a part and parcel of the local mass which is not the present case and the order under section 144, Cr.P.C. Does not cover the commercial activity of the petitioners because the transit of petitioners' goods does not cause the shortage of wheat or price hike or a situation of, disturbance of public peace and tranquility in Rahimyar Khan District. Reliance in this regard has been placed on The Central India Spinning and Weaving and Manufacturing Co. Ltd. The Empress Mills, Nagpur v. The Municipal Committee, Wardha AIR 1958 SC 341.
8. Similarly, on the strength of Niaz Muhammad etc. v. D.M., Bahawalpur PLD 1975 BJ 36, the learned counsel for the petitioners has stressed that there was neither any emergency or urgency for passing the impugned order nor did the District Magistrate apply his mind to see if the powers under section 144, Cr.P.C. Could be exercised in the situation like this and he acted mechanically on the asking of the Deputy Director Food or after receiving the letter from the Director, Food Department.
9. The learned counsel for the petitioners also assailed the repetition of orders under section 144, Cr.P.C. Without break or repeating the same at short intervals claiming that the successive orders are beyond the scope of section 144, Cr.P.C. In this behalf he has placed reliance on Niaz Muhammad etc. v, D.M., Bahawalpur PLD 1975 BJ 36 and Sardar Ashiq Muhammad Khan Mazari and 3 others v. Chairman, Federal Land Commission, Islamabad and 4 others (PLD 1977 Lahore 461).
10. He summed up his arguments by submitting that the resort to provisions of section 144, Cr.P.C. Is illegal, mala fide and is in fact a source of corruption. He has added that in spite of continuous imposition of section 144, Cr.P.C. In Rahimyar Khan District, the goods are still being exported to other parts of the country and occasionally the movement is relaxed by the Food Department itself when it starts issuing permits. There is no rule or set policy for the issuance of these permits and the result is that the Food Department sells the permits and the proceeds are shared. In certain other cases the administration of the border districts, namely, Rahimyar Khan and Attock allowed truck loads to pass through the borders and the only condition is the payment of some fixed rate.
11. On the other hand, the learned AA.-G. Has justified the prohibition order passed by the District Magistrate and has drawn our attention to section 3 of the Foodstuffs Control Act, 1958, whereby the Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any foodstuff or for securing its equitable distribution and availability at fair prices, may, by notified order, provide for regulating or prohibiting storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption thereof and trade and commerce therein. He has also drawn our attention to the fact that the petitioners had independently entered into an agreement at the time of grant of licence by the Government of the Punjab, binding themselves to comply with all the instructions regarding milling and maintenance of accounts etc. For this he has referred to a copy of the agreement entered into by M/s. Asia Flour Mills (Pvt.) Ltd., Bahawalpur with the Government and of the affidavit of Ch. Masood A. Majeed, wherein it was undertaken that in case they violate the provisions of agreement, they would be liable for action for breach of trust, plus penalty to be imposed by the Deputy Director Food. He has also relied on Maqbool Ahmad etc. v.
Additional Deputy Commissioner, Bahawalpur (1980 PCr.LJ 851) (BJ), for contending that the provisions of section 144, Cr.P.C. Could be taken resort to for banning transportation of certain items from one District to another.
12. The learned District Magistrate has urged in his comments that actually the traders of wheat manage to obtain the bogus 'Billies' and bogus documents from Central Punjab and after purchasing the wheat from this District, try to transport the same to the Province of Sindh and Balochistan and as such there was an emergent situation warranting ban on the export of wheat from Rahimyar Khan District which resulted in promulgation of an order under section 144, Cr.P.C.
For which he was fully empowered. The Director Food has also stated in his comments that the orders passed by him requesting the District Magistrates to place ban on wheat and wheat products are quite legal in view of the provisions of section 3 of the Punjab Foodstuffs (Control) Act, 1958.
13. While hearing the arguments on 31-10-1995 and keeping in view the categorical statement of the learned counsel for the petitioners that respondent No,6 had passed the order under section 144, Cr.P.C. Without justification, we directed the learned District Magistrate, Rahimyar Khan to put in appearance before us along with the complete record. We have today heard him and have also recorded his statement. According to him, he issued the orders under section 144, Cr.P.C. The latest being the order dated 30-10-1995 in view of the fact that wheat was being taken from Punjab through Rahimyar Khan to Balochistan and this was resultantly causing shortage of wheat. He has added that the Government supplies wheat for milling to the petitioners on subsidized rates and the purpose behind is to make available wheat flour to the people of Punjab at reasonable rates.
He also received a request from the Director Food through letter dated 25th September, 1995 in this behalf and that was also one of the considerations for making such an order.
' The contents of this letter from the Director of Food to the Deputy Commissioners and the District Food Controllers of Rawalpindi, Attock, Mianwali, Bhakkar, D.G, Khan and Rahimyar Khan, are as under:-- "In continuation of this Directorate letter of even number dated 15-9-1994, on the subject cited above.
(2) Release of wheat on subsidized rates had started from the Punjab Food Reserves. The subsidy borne by the Punjab Government as per budget 1995-96 is estimated to the tune of Rs,90,10,48,714.87. The objective is Food Security of the Province and to provide Atta on subsidized rates to the population of Punjab Province.
(3) Therefore, the following instructions are repeated for implementation in letter and spirit:--
(a) Ban on movement of wheat and wheat products shall remain in force in the Districts of Rawalpindi, Attock, Mianwali, Bhakkar, D.G. Khan, Rajanpur and Rahimyar Khan out of the Province.
(b) Check Posts shall be established on different spots jointly by Local Administration/Police and Food Department.
(c) There shall be no permits for allowing any person/Mill to transport wheat or wheat products beyond the check post established by the respective District Magistrates.
(d) Strict compliance of this policy shall be ensured by the District Magistrate and Superintendent of Police along with District Food Controllers concerned.
(4) It is, therefore, requested to make all necessary measures/ arrangements for effective compliance of the aforementioned instructions as releases from Provincial Reserves have since been started with effect from 16-9-1995 and thus movement of wheat/wheat products out of the Province is completely banned."
14. Earlier, the Deputy Director Food, Bahawalpur Division, had also claimed that the Food Department, Government of the Punjab, purchases wheat from the growers in the open market according to the support price fixed by the Federal Government and regulates supply of wheat to the Flour Mills in such a manner that the price of Atta in the Province remains stable and the common man is able to procure wheat products without any encumbrance or difficulty at a reasonable price. After giving some facts and figures with regard to the wheat purchased by the Food Department during the last few years, the Deputy Director had submitted in his written reply to the amended application filed by the petitioners (CM No,3/94) that the subsidy which has been paid by Government of the Punjab comes to Rs,571.98 per ton and this liability is being borne by the Punjab Government with a specific purpose of providing Atta on cheap rates to the common man in the Province and as such prayer of the petitioners for allowing the' transit of wheat and wheat products to the Province of Balochistan is against the basic rights of the common man of Punjab.
15. We have given our anxious and thoughtful consideration to the assertions made in this petition, the comments of the respondents and the arguments addressed at the Bar. There cannot be, two opinions that under section 3 of the Foodstuffs Control Act, 1958, referred to above, Government may by notified order provide for regulating or prohibiting the movement etc. Of any foodstuff.
There is also no denying the fact that the petitioners did enter into an agreement at the time of grant of licence by the Government of the Punjab binding themselves to comply with all the instructions regarding milling and maintenance of accounts etc. But we are not at all inclined to agree with the argument that by doing so, the petitioners cannot now challenge the imposition of section 144, Cr.P.C. By the District Magistrate. We are also not convinced that in the circumstances explained by the Food Department or the District Magistrate, the latter was competent to take resort to the provisions of section 144, Cr.P.C. The basic ingredient of section 144, Cr.P.C. Is that in the opinion of the District Magistrate there should be a sufficient ground for proceeding under this section for immediate prevention of obstruction, annoyance or injury etc. To any person lawfully employed or danger to human life, health of safety on a disturbance of the public tranquility or a riot or an affray. We fail to understand as to how the export of wheat and wheat products through Rahimyar Khan District was likely to cause disturbance of peace and tranquility in the District. We are also inclined to agree with the learned counsel for the petitioners that by passing such an order the District Magistrate does not appear to have applied his independent mind to see if the powers under this section could be exercised in the situation. He obviously acted mechanically on the asking of the Deputy Director Food or after receiving the letter from the Director Food Department.
Section 144, Cr.P.C. Is admittedly a transitory provision meant to cater for temporary situation or to facilitate the stop-gap arrangement, till alternate measures could be taken to safeguard the interest of the individual and to preserve public peace and tranquillity. This was obviously not the case here. As held in Niaz Muhammad etc. v. D.M. Bahawalpur PLD 1975 BJ 36 the problem, if at all there is one, is of a permanent or a semi-permanent nature and had to be looked after by the Provincial Government as required under section 144(6), Cr.P.C. In fact, Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees to every citizen, the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business subject to such qualifications, if any, as may be prescribed by law. Under the same Article, trade or profession can be regulated by a licensing system but obviously not through the imposition of section 144, Cr.P.C.
Article 151 of the Constitution also guarantees trade, commerce or intercourse throughout Pakistan to be free subject, however, to the powers of the Parliament to impose by law, such restrictions on the freedom of trade, commerce or intercourse between one Province or another or within any part of Pakistan as may be required in public interest. It has been held in Mirpurkhas Sugar Mills Ltd. v.
District Council, Tharparkar and 2 others (1990 MLD 317) (Karachi) as under:-- "Examining Article 151 of the Constitution in this perspective it is to be observed that while clause (1) of Article 151 is, generally worded, declaring trade, commerce and intercourse throughout Pakistan to be free, sub-clause (a) of clause (3) of Article 151 divests a Provincial Assembly or a Provincial Government of power to make any law or take any executive action prohibiting or restricting the entry into or export from the Province of goods of any class or description. Sub-clause (b) of clause
(3) of Article 151, in relation to goods manufactured or produced in a Province, makes it clear that imposition of a tax in respect of any such goods, which discriminates between such goods and goods not so manufactured or produced would involve contravention of the Constitutional guarantee of freedom of trade, commerce and intercourse throughout Pakistan. No different results would follow if like restriction or imposition is made in exercise of delegated Towers, for, the rule is that what cannot be done directly cannot also be done indirectly. It would, therefore, appear that such restriction or tax, whether imposed, directly, at the level of the Provincial Legislature or at a subordinate level in exercise of delegated powers would unescapably, come in conflict with Article 151, Cl. (3) and all such persons as, ultimately, come to bear the burden of such a restriction or levy would require to be relieved of the same."
' Keeping this dictum in mind, we have also given our earnest consideration to the words and phrases 'import' and 'export'. In the Central India Spinning and Weaving and Manufacturing Co. Ltd.
The Empress Mills, Nagpur v. The Municipal Committee, Wardha AIR 1958 SC 341 it was held that 'import' is not merely the bringing into but comprises something more i,e, `incorporating and mixing up of the goods imported with the mass of the property' in the local area. Similarly, the word 'export' has reference to taking out of goods which had become part and parcel of the mass of the property of the local area and will not apply to the goods in transit i,e, brought into the area for the purpose of being transported out of it. It is thus abundantly clear that the petitioners' goods taking motion from Bahawalpur District only seek free passage from the District of Rahimyar Khan without becoming a part and parcel of the mass of the wheat and its products of Rahimyar Khan District.
We find considerable force in the contention of the learned counsel for the petitioners that in order to term a commercial activity as export the goods seeking transit must become a part and parcel of the local mass which is not the case here and, therefore, the order under section 144, Cr.P.C.
Passed by District Magistrate, Rahimyar Khan does not cover the commercial activity of the petitioners. The imposition of an order under section 144, Cr.P.C. By the District Magistrate, Rahimyar Khan, therefore, tantamounted to restriction and impediment on inter-Provincial trade the regulation of which is a Federal subject. The petitioners claim that they made a representation to the District Magistrate for withdrawing his orders but he refused to accede to their request. They, therefore, had no course open but to seek this Constitutional remedy.
16. It is also abundantly clear from a careful perusal of the record that the District Magistrate has been passing successive and stereotype orders under section 144, Cr.P.C. Which is not permissible under the law. The petitioners have referred to such orders dated 28-5-1994, 6-6-1994, 8-6-1994 and the latest dated 30-10-1995 and have urged that they are all liable to be set aside. The repetition of such orders without break or repeating the same at short intervals have always been dis favoured by law. Such a repetition amounts to achieving indirectly what law prohibits doing directly. In Ram Narain Sah and another v. Parmeshar Prasad Sah and others (AIR 1942 Patna 414), referred to in Niaz Muhammad etc. v. D.M., Bahawalpur (supra), it was held that a Magistrate cannot overt the applicability of subsection (6) by repeating the order under section 144, Cr.P.C. On intervals. In Azhar Khan and others v. The State also referred therein, it was held as under:-- "If the second order is made immediately, after the expiry of the first order, or so soon thereafter, as to be really a continuation of the first order, that should be clearly in violation of the provisions of subsection (6) of section 144 of the Code of Criminal Procedure, and it could then be legitimately said that the Magistrate was not legally empowered to promulgate such an order."
17. Adverting to the statement of Syed Raees Abbas Zaidi, District Magistrate, Rahimyar Khan, we fmd that he was neither aware of the total production of wheat in Rahimyar Khan District nor that of its total requirement. He, however, knew that the wheat crop in Sindh ripes earlier than Punjab and, therefore, in those days the wheat is imported from Sindh in the Punjab. He was also aware that permits were issued by the Food Department for export of wheat flour to other Provinces and that Balochistan itself produces more wheat than its requirement. If all what he says is correct, there is no sense in claiming that petitioners are exporting wheat and wheat products from Rahimyar Khan District to the areas beyond Province of Punjab causing shortage in the deficit areas of Rahimyar Khan District and thereby causing disturbance of peace and tranquility.
18. The following observations made in Mueez Ali Hatim and others v. The State PLD 1966 (W.P.)
Lahore 675 can also be of some advantage for better appreciation of the circumstances in which the provisions of section 144, Cr.P.C. Can be taken resort to:-- "The Magistrate assumes jurisdiction under section 144 of the Criminal Procedure Code, 1898 with a view to eradicate the danger, and if the prospects of the object in view are not promising there is no reason why other efficacious remedy be not resorted to. Courts, Civil as well as Criminal, exist for the protection of the rights of private individuals, and, therefore, the authority of a Magistrate under this section should ordinarily be exercised in defence of such rights rather than in their suppression.
Private rights, of course, must give way in a measure to public tranquillity, but the section contemplates temporary suppression of private rights, and not permanent ones. An order suppressing legal rights under this section, though evidently temporarily, ought not to be made unless such action is considered absolutely necessary, and at the same time adequate or sufficient remedy is not available. The order under this section should be, as far as possible, commensurate to the emergency of any particular situation and should never be cloaked to achieve an object not envisaged by the provisions of this section-"
19. We have also applied our minds to the arguments of the learned AA.-G that the petitioners are violating the agreement/undertaking given by them to the Food Department and as such the order under section 144, Cr.P.C. Was justified. We, however, find it without any merit because the agreement is comprehensive and caters for violation of the contractual obligations. In fact it provides a complete machinery to deal with such a situation. Besides, the Food Laws are meant for controlling the activities of the licensees. While we have no controversy with what has been laid down in Maqbool Ahmad etc. v. Additional Deputy Commissioner. Bahawalpur 1980 PCr.LJ 851 (BJ), we are of the considered opinion that this judgment is of no avail to the respondents. The judgment was in a criminal revision and the question before the Court was whether Additional Deputy Commissioner as Chief Executive of a District and Magistrate 1st Class as well, could pass an order under section 144, Cr.P.C. On the transfer of the District Magistrate and it was held that the Additional Deputy Commissioner was competent to pass such an order in the circumstances of the case. It was also held that an order under section 144, Cr.P.C. Banning transportation of cotton from one District to another when there was danger of Phutti being moved from inferior quality areas to superior quality areas, resulting in mixture of different varieties of Phuttis was proper. It was also held therein that although the Agriculture Department could act under rule 22 of the West Pakistan Cotton Control Rules, 1966, it could not act effectively without the assistance and cooperation of the executive and speedy action was required because the cotton season had commenced. The findings in the said judgment have obviously no bearing on the facts of the present case.
20. Coming to the allegation that resort to section 144, Cr.P.C. Is mala fide and the objective is to make money by creating bottlenecks in movement of the wheat products from one Province to another and that in spite of the imposition of the provisions of section 144, Cr.PC. The trade has not stopped. We for that though the allegations are pretty serious yet it is not for this Court to undertake adjudication of the same and that too in exercise of its writ jurisdiction. It is for the Government to take care of the situation and plug the sources of corruption.
21. Reverting to the case in hand, we that a plain reading of the impugned order, the facts and circumstances explained above, and the provisions of section 144, Cr.P.C. Makes it absolutely clear that neither the learned District Magistrate gave the material facts which justified apprehension of breach of peace and tranquility nor was the situation likely to cause public disturbance or annoyance. In fact the District Magistrate has been violating the provisions of section 144(6), Cr.P.C.
Inasmuch as he has been passing the same order since 28-5-1994 on short intervals. We, therefore, have no option but to hold that the impugned orders promulgated under section 144, Cr.P.C. Are illegal and inoperative. This petition is accordingly accepted with costs and the said orders are set aside.