' This Constitutional petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has arisen in the circumstances that follow.
2. Petitioner Muhammad Shohaib who happens to be a Manager of the Pakist Tobacco Company Ltd. At Baffa by mutual agreement purchased Certain Flue-cured Virginia (FCV) Tobacco from a grower, namely, Muhatnma Ayub on 27-9-1994 and a purchase voucher (Annexure A) against the payment was issued for 15-7-1995. Respondent No,1 who calls himself 1Chief Patro of Injaman-e-Kashtkaran'. Mansehra District on 27-9-1994 submitted an pplication (Annexure C) to respondent No,2. i,e,, Station House Officer, Baffa\ for an action against the petitioner as the issuance of payment vouchers to the growers carrying payment dates beyond the period 31-12-1994 (fixed by the Pakistan Tobacco Board) had been prohibited by an order passed under section 144, Cr.P.C. (Annexure B) by respondent No,3, i,e,, S.D.M., Mansehra and the petitioner in violation of that order issued purchase voucher to Muhammad Ayub against payment date of 15-7-1995. The Station House Officer on this registered a criminal case under section 188, P.P.C., vide F.I.R. No,115 dated 27-9-1994 (Annexure D) at Police Station, Baffa and the petitioner was consequently arrested on the refusal to him the grant of bail (pre-arrest) by the Sessions Court. Muhammad Shohaib in this background of the case has been constrained to challenge the legality and validity of the aforesaid order of respondent No,3 passed under section 144, Cr.P.C. And the registration of criminal case under section 188, P.P.C. By respondent No,2 on the complaint of respondent No,1 on the alleged violation of that order on the following grounds:--
(i) That sale and purchase of tobacco is regulated by two basic laws, i,e,, Pakistan Tobacco Board Ordinance, 1968 (Ordinance No,I of 1968) a Federal Law and M.L.O. No,487 of 1985 (read with Tobacco Marketing Control Rules, 1993) a Provincial Law. Pakistan Tobacco Board (respondent No,5) has been constituted under section 3 of Ordinance No,I of 1968 and section 6 thereof relates to regulate, control and promote the export of tobacco and tobacco products and to fix grading standards and to perform such other function as the Central Government may, from time to rime, direct. Section 8 relates to the fixation of prices by the Central Government by a notification fixing the minimum and maximum prices of various grades of tobacco for consumption within Pakistan or for export whereas section 18 controls the export of tobacco and tobacco seeds. Any contravention of the provisions of section 18 has been made punishable under section 24 of the Ordinance as if it were an offence under item No,8 of section 167 of the Sea Customs Act, 1878 (VIII of 1878) and the provisions of section 168 and Chapter XVII of that Act. Subsection (2) of section 24 states that any person who contravenes or fails to comply with any provision of this Ordinance or any order or direction issued thereunder shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both and subsection (3) states that where any person contravening the provisions of this Ordinance is a Company or a Body Corporate, every Director, Manager, Secretary or other officer, and every agent and servant thereof and, in the case of an unlimited Company or Company limited by guarantee, also every Member thereof shall be punishable as if he had contravened , the provisions of thig Ordinance but no such person shall be punished except with the previous approval of the Central Government. Section 27 states that no Court shall take cognizance of an offence punishable under this Ordinance except on a report in writing of the facts constituting such offence made by the Board or a person authorised by it in this behalf,
(ii) and similarly M.L.O. No,487 has provided for a forum, i,e,, the Vigilance Committee whose function is to resolve disputes between the tobacco growers and a tobacco company, if any, arising out of sale and purchase of tobacco and the decision of the Vigilance Committee has been made binding on the parties. This order further provides that officers of Pakistan Tobacco Board and of the Agriculture Department not below Grade-17, a Magistrate 1st Class and a Police Officer not below the rank or a Deputy Superintendent of Police (D.S.P.) shall be entitled to inspect the sale and purchase transactions with a view to ensure that the provisions of the order are complied with and if any person is found contravening any provision of the Order he is to be punished under M.L.R.
14.
(iii) That respondent No, 3 as such had no power to promulgate order under section 144, Cr.P.C.
Restricting the sale/purchase or transporation of tobaCco from one place to another in Mansehra Which exclusively fell within the authority of Pakistan Tobacco Board and for which Special Forums have been constituted both under Federal as well as Provincial Laws and any prosecution of the writ petitioner under section 188, P.P.C. For the alleged violation of an order passed under section 144 was thus illegal, without lawful authority and of no legal effect.
3. This writ petition was, heard in motion on 13-12-1994 and Mr. Jehanzeb Rahim, Bar-at-Law while arguing the case on behalf of the petitioner raised almost all these points again and particularly that under section 27 of Ordinance No,I of 1968 no Court can take cognizance of an offence punishable under this Ordinance except on a report in writing of the facts constituting such offence made by the Board or a person authorised by it in this behalf. He further stated that under sub- para. (1) of para. 2 of M.L.O. 487 every Tobacco Company has to execute agreements with the growers by the 31st day of December fcr the purchase of tobacco to its target requirement and a copy thereof has to be supplied to the Pakistan Tobacco Board. That in view of the existence of Federal and Provincial laws in the shape of Ordinance No,I of 1968 and M.L.O. 487 respondent No,3, i,e,, S.D.M., Mansehra had no authority to issue an order under section 144, Cr.P.C. Restricting the sale/purchase of transportation of tobacco or tobacco products from one place to another in Mansehra Sub-Division which exclusively falls within the authority of the Pakistan Tobacco Board and consequently the registration of a criminal case under section 188, P.P.C. And subsequent arrest of the petitioner in that case was absolutely illegal and without lawful authority. The learned counsel stated further that it is the sole job of the Pakistan Tobacco Board under section 6 of Ordinance No,I of 1968 to regulate, control and promote the export of tobacco ,products and fix grading standards. That the Central Government under section 8 of the Ordinance may fix the minimum and maximum price of Tobacco of various grades whereas under subsections (2) and
(3) of section 24, contravention of any provision of the Ordinance by any person or Company, Director, Manager etc. Has been made punishable up to 3 years' imprisonment or fine or with both but no Director, Manager etc. Of a company can be prosecuted without previous approval of the Central Government.
4. We have listened at length Mr. Jehanzeb Rahim, Bar-at-Law on behalf of writ petitioner, Mr. Tahir Hussain Lughmani the Assistant Advocate General for respondents Nos.2 to 4,7 and Mr.Fazal Gul, Advocate for respondent No,5. Mr. Chulam Samdani Khan respondent No,1 has been heard in person. Mr. Jehanzeb Rahim, Bar-at-Law reagitated almost the same legal position and arguing further stated that even if a lawful order passed under section 144, Cr.P.C. Had been violated, no Court could take cognizance of a case punishable under section 188, P.P.C. Except on the complaint in writing of that public servant who happened to be author of such an order or of some other public servant to whom he is subordinate, as provided by section 195(2)(a), Cr.P.C. The text whereof is reproduced below:-- "195. Prosecution for contempt of lawful authority of public servants.--(1) No person shall take cognizance--(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;"
' That in the instant case prosecution of the petitioner under section 188, P.P.C. Have been initiated before respondent No,4 on the complaint of respondent No,1 made before respondent No,2 which could in fact proceed only if a complaint in writing by respondent No,3 or any public servant to whom he is subordinate had been received by respondent No,4 and similarly, respondent No,2, i,e,, Station House Officer, Police Station, Baffa could not register a case under section 188, P.P.C. For the alleged violation of the order passed by S.D.M., Mansehra under section 144, Cr.P.C. In the absence of a written complaint and as such all these proceedings initiated and conducted against his client were totally invalid and may be quashed by this Court while exercising jurisdiction under section 561-A, Cr.P.C. The learned Assistant Advocate-General could not satisfactorily answer these assertions while the learned Advocate of the Pakistan Tobacco Board spoke in support thereof.
5. An amendment has been although made in the Schedule of the Criminal Procedure Code and section 188, P.P.C. Made cognizable thereby and a Police Officer has now been empowered to make rrest of a person without warrant if an offence punishable thereunder has been=committed in any public place, but there being no corresponding amendment in section 195, Cr.P.C. a Court despite that can only take cognizance of such an offence on a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Enough of precedent cases are available on this subject and the following few are referred. 'Sharif and 4 others v. The State PLD 1975 Lahore 1315, Ali Hussain v. The State 1979 PCr.LJ (Karachi) 941. It would, therefore, follow that no prosecution of the petitioner could take place on a charge under section 188, P.P.C. For the alleged violation of an order passed under section 144, Cr.P.C. By the S.D.M., Mansehra in the absence of a written complaint by the S.D.M. Himself or of some other officer to whom he is subordinate.
6. Similarly it is the Pakistan Tobacco Board (as constituted under section 3 of Ordinance No,I of 1968) which under section 6 of the Ordinance regulates, controls and promotes the export of tobacco and tobacco products and fixes grading standards etc. While the Central Government fixes the minimum and maximum price of tobacco of various grades under section 8. Penalties for contravention of any provision of the Ordinance by any person or company have been provided under section 24 of the Ordinance ibid but no person can be prosecuted without previous approval of the Central Government. Under section 27 of the Ordinance no Court can take cognizanCe of an offence under the Ordinance unless a report in writing is made by the Pakistan Tobacco Board.
Under sub-para. (1) of para. 2 of M.L.O. 487 every Tobacco Company has to execute agreements with the growers of tobacco by 31st December for the purchase of its target requirement and copy thereof has to be supplied to the Board. This being the legal position of the case, respondent No,3, i,e,, S.D.M., Mansehra had no authority to issue an order under section 144, Cr.P.C. Restricting the sale, purchase or transportation of tobacco from one place to another in Mansehra which exclusively fell within the authority of the Pakistan Tobacco Board and the impugned order passed was thus wholly invalid.
7. Resultantly, we are constrained to accept this writ petition and declare that the order promulgated by respondent No,3 under section 144, Cr.P.C. On 26-9-1994 whereby he prohibited the entry and purchase of tobacco from outside district into Mansehra Sub-Division, close-down of Tobacco Purchase Depots/Stations in Mansehra Sub-Division (except on scheduled holidays) without clearance certificate duly issued by Pakistan Tobacco Board and issuing payment vouchers carrying date of final payment beyond 31-12-1994 to the growers and similarly, the registration of a criminal case on the alleged violation of that order under section 188, P.P.C. By respondent No,2 on the complaint of respondent No,1 and prosecution of the petitioner on that count by respondent No,3 as without lawful authority and of no legal effect and quash all these proceedings being abuse of the process of the Court.