' The District Magistrate, Rahimyarkhan, in exercise of the powers conferred upon him under section 3/4 of the Punjab Foodstuffs (Control) Act, 1958 (hereinafter called the Act), notified the impugned order dated 20-12-1995, prohibiting the movement of wheat and its products (i,e, Atta, Suji, Maida) by means of transportation out side the revenue limits of Rahimyar Khan District. The impugned order was in force for a period of three months.
2. The Food Enforcement Staff seized, on 3-1-1996, two Trucks of the petitioner containing 575 bags of wheat Atta at a Check Post of Kot Sabzal, Tehsil Sadiqabad, District Rahimyar Khan. A case F.I.R.
No,3 of 1996 under section 3/6 of the Act was registered at Police Station Kot Sabzal, District Rahimyar Khan, at the instance of a Food Inspector.
3. By means of this petition under Article 199 of the Constitution, the petitioner calls in question the validity of the impugned notified order dated 20-12-1995 and the said F.I.R.
4. Mr. Ijaz Ahmad Chaudhry, Advocate, the learned counsel for the petitioner has argued that the impugned notified order is violative of the provisions of the Act and Article 151 of the Constitution being an impediment to the freedom and flow of inter-Provincial trade and commerce. The learned counsel submitted that the impugned notified order had no application to the facts of the present case in which wheat Atta had been brought from Bahawalpur and was to be taken to Quetta in the Province of Balochistan through Rahimyar Khan District by way of transit passage.
Reliance was placed on a Division Bench judgment of this Court in an earlier case of the petitioner Mills titled Asia Flour Mills and others v. Director Food and others PLD 1996 Lah.
133.
5. On the other hand, the learned Assistant Advocate-General, defended the impugned notified order as also the First Information Report on the ground that there was a contravention of the impugned notified order as well as the provisions of the Act. He further argued that no exception could be taken to the registration of a criminal case against the petitioner.
6. I have carefully considered the arguments of the learned counsel for the parties. The preamble of the Act viz. The Punjab Foodstuffs (Control) Act, 1958, clearly lays down the object of the law. It had been enacted in the public interest to provide for the continuance of powers to control the supply, distribution and movement of, trade and commerce in, foodstuffs in the Province of Punjab.
Clause (a) of section 2 of the Act gives the definition of "foodstuff" to mean wheat, wheat-atta, maida, rawa, suji, rice, paddy, sugar and such other commodities as may be declared or notified by the Government to be foodstuffs. Under subsection (1) of section 3 of the Act, the Provincial Government is empowered by a notified order to provide for regulating or prohibiting the keeping, storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption of any foodstuffs for maintaining supplies and equitable distribution and availability at fair prices as well as trade and commerce therein. Under clause (c) of subsection (2) of section 3 (ibid), an order by the Government may provide for regulating by licences, etc., the storage, transport, distribution, disposal, acquisition, use or consumption of any foodstuff. Clause (f) empowers the Government to regulate or prohibit any class of commercial or financial transactions relating to any foodstuff which is or is likely to be detrimental to public interest. Section 4 permits the Government to delegate its powers to be exercised by an officer or authority subordinate to it. Section 6 provides for punishment of a person contravening any order made under section 3 and for forfeiture of the property, i,e,, the subject-matter of the offence. Under section 12 of the Act, it is for the accused person to discharge the burden of proof that he had the permit or licence where such person is prosecuted for contravening any order made under section 3 of the Act.
7. The Governor of the Punjab made an order dated 16-4-1976 called the Punjab Wheat, Wheat- atta, Maida and Suji Movement (Control) Order, 1976, under section 3 of the Act. Para. 2 of the said Order reads as follows:-- "No person shall carry or transfer wheat or wheat-atta, maida and suji by any means of transport from any place in a district to a place outside the boundaries of the District: ' Provided that these restrictions shall not apply to wheat, wheat atta, maida and suji carried or transported:
(i) on Government account;
(ii) on the authority of a permit issued by the Director Food, Punjab, or the District Magistrate of the District concerned or any officer authorised by them in this behalf;
(iii) by a bona fide traveller, provided the quantity does not exceed 10 seers in each case; or
(iv) for purposes of marketing by growers owning or cultivating land in a particular district to the nearest Mandi located in another district."
8. It will, thus, be seen that the executive power to regulate and prohibit the movement and transportation of the foodstuffs is clearly spelt out by the provisions of the Act as well as the Order, 1976. The expressions "to control", "to regulate" or "to prohibit" are interchangeable in some cases.
See the cases of Slattery v. Naylor (1888) 13 AC 446 (PC); K. Ramanathan v. State of Tamil Nadu and another AIR 1985 SC 660; Sh. Inayat Ullah and others v. M.A. Khan and others PLD 1964 SC 126; Pakistan Burmah Shell Ltd. v. Central Labour Commissioner, Karachi and 5 others PLD 1976 Kar. 1118; L. Arjan Das Duggal v. State of Punjab AIR 1958 Punj. 400; Indu Bhushan Bose v. Ram Sandri Dehi and another (1969) 2 SCC 289; Government of Pakistan v. Syed Akhlaque Hussain and another PLD 1965 SC 527 at page 596. It was held therein that the power to regulate, includes the power to prohibit. In the case of Slattery (supra), the question before the Privy Council was whether a bye-law by reason of its prohibiting internment altogether in a particular cemetry, was ultra vires. The Municipal Committee had only the power of regulating internments whereas the bye-law totally prohibited them in the cemetry in question. It was said by Lord Hobhouse, speaking for the Privy Council that a rule or bye-law could not be held as ultra vires merely because it prohibited where empowered to regulate, as regulation often involved prohibition.
9. Article 151 of the Constitution guarantees the freedom of trade, commerce and intercourse throughout Pakistan as well as between one Province and another or within any part of Pakistan.
Under clause (3) of the said Article a Provincial Assembly and Provincial Government do not have the 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, or to impose a tax causing discrimination between the goods manufactured or produced outside such Province and giving a preferential treatment of taxation for the goods so manufactured or produced within such Province. Clause (4) of the said Article, however, permits an Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order or morality, or for the purpose of protecting animals or plaints from disease or preventing or alleviating any serious shortage in the Province of an essential commodity, if made with the consent of the President. The salutary provision of the Constitution is not only to be interpreted in its textual sense but also in the context of historical background. I find a similar provision of section 92 in the Constitution of Commonwealth of Australia, 1901, which gives an absolute freedom of inter-State trade. Section 297 of the Government of India Act, 1935, denuded a Provincial Legislature and the Provincial Government of their power to pass 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 or to impose any tax, cess, or toll discriminating between the goods produced or manufactured within the Province with that of similar goods manufactured or produced outside the Province or in different localities of the same Province. Article 301 of the Constitution of India is analogous to our Article 151 of 1973 Constitution. Earlier, identical provisions were made in Article 119 of 1956 Constitution and Article 142 of 1962 Constitution of Pakistan.
10. The object and scope of the freedom of trade and commerce throughout Pakistan including inter-Provincial was examined by the superior Courts of Pakistan in a number of cases. In Mr. Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 at pages 501 and 515, it was laid down as under:-- "With respect, it should be pointed out that Article 142 (now Article 151) is in the same Part as Article 133, yet the wording of Article 142 clearly indicates divided responsibility, some part of which must necessarily fall on the Judiciary. The Article declares that the Legislature of a Province shall not impose restraints upon trade between that Province and another Province, either by placing restrictions upon entry and export or by imposition of discriminatory taxes. The prohibition being absolute, a Legislature which contravenes this provision cannot be thought to be exercising its 'responsibility', in terms of the Constitution properly. But it must be remembered that such restraints are capable of being applied in modes, which by design or otherwise, avoid the appearance of direct contraventions. Such modes have frequently been discovered and the relevant provisions declared void by Courts, in the sub-continent as well as in a number of other countries. It is at least doubtful whether to place the responsibility upon the Legislature of a Province in this respect, is a sufficient safeguard against the kind of discrimination which the Constitution intended to prevent, but, clause (2) of this Article clearly attracts judicial intervention when it says that a law having the effect of restraining trade by import or export restrictions or by taxation should not be invalid provided firstly, it imposes 'any reasonable restriction in the interest of public health, public order of morality or for the purposes of protecting animals or plants from disease or preventing or alleviating any serious shortage in the Province of an essential commodity', and secondly, if it was made with the consent of the President. The latter condition and its satisfaction are easy of ascertainment, but there is no doubt that the determination, of the question whether or not a restraint is 'a reasonable restriction' of the kind specified is precisely and exclusively a matter for judicial determination. ... .......
' Obviously the reasonableness of such restrictions would be a justiciable question."
11. In the cases of Arshad Akram & Co. And 8 others v. DivisionalSuperintendent, Pakistan Railways, Rawalpindi and 5 others PLD 1982 Lah. 109 and Star Flour Mills v. Province of Punjab and others PLD 1996 Lah. 687, it was held that a prohibition of transporting the foodgrains from the Province of Punjab to another Province by an executive order was violative of Article 151 of the Constitution being an impediment to the flow and freedom of inter-Provincial Trade and Commerce. A similar view was also taken by the Sindh High Court in the cases of Kotri Association of Trade and Industry v. Government of Sindh and another 1982 CLC 1252 (Karachi) (DB); Sayphire Textiles Mills Ltd. And 9 others v. Government of Sindh and others PLD 1990 Kar. 402 (DB); Mirpurkhas Sugar Mills Ltd. v.
District Council, Tharparkar and 2 others 1990 MLD 317 and Mirpurkhas Sugar Mills Limited v. District Council, Tharparkar through Chairman and 3 others 1991 MLD 715. It was held therein that imposition of an export tax by a Zila Council on goods meant for delivery on destinations in other Provinces was not valid being violative of Article 151 of the Constitution. However, such a tax was valid if the goods were to be exported from one Zila to another in the same Province being an intraProvincial and not an inter-Provincial trade and commerce. It was further observed that reasonable restrictions in the public interest could be imposed by a Provincial Assembly in terms of clause (4) of Article 151.
12. However, the Peshawar High Court in the cases of Messrs Khyber Electric Lamps Manufacturing Limited and others v. Chairman, District Council, Peshawar and another 1986 CLC 533 and Messrs Saif Nadeem Kawasaki Motors Ltd. v. The Government of N.-W.F.P. And another PLD 1992 Pesh. 166 took the view that the freedom of trade, commerce and intercourse had to be regulated and would be subject to restrictions in the public interest placed by the Parliament or a Provincial Assembly in a reasonable manner. It was further held that imposition of an export tax by a Zila Council was not against the spirit of Article 151 of the Constitution being an intra-Provincial tax.
13. There is no doubt that subject to reasonable restrictions in the public interest, the Constitution affords a guarantee for the free trade, commerce and intercourse throughout Pakistan as well as inter-Provincial. But the word "free" in Article 151 does not mean to be free from all laws or regulations or other provisions of the Constitution. Article 151 cannot mean absolute freedom from any restrictions or regulatory measures of the State whatsoever. It must be understood in the context of an orderly society and as a part of the Constitution which envisages a distribution of powers between the Federation and the Provinces. In the very nature of things, it must recognise the need and legitimate chanalization of regulatory control whether by the Parliament or by a Provincial Legislature. In the case of Commonwealth of Australia v. Bank of New South Wales (1949)
2 All ER 755, the Privy Council observed that it was generally recognised that the expression "free" in section 92 of Australian Constitution though emphasised by the accompanying words "absolutely" but must receive some qualification. The Judicial Committee further held that it was common ground that the conception of freedom of "trade, commerce and intercourse" in a , community regulated by law presupposed some degree of restriction on the individual. Thus, their lordships of the Privey Council took a restricted view of the word "free" even where suffixed by the word "absolutely". The words "absolutely free" are not mentioned in Article 151 of our Constitution. Every citizen has a fundamental right guaranteed by Article 18 of the Constitution to conduct any lawful trade or business subject to such qualifications, if any, as may be prescribed by law. The said Article also permits the regulation of any trade or profession by a licensing system. There is, thus, no fundamental right to conduct any and every trade or business but only if it is lawful. This means that a trade or a business can be prohibited in the public interest by declaring it to be unlawful. The word "lawful" before the expressions "trade" or "business" mentioned in Article 18 of our Constitution is not there in Article 19(1)(g) of the Constitution of India. The Hon'ble Supreme Court has dealt with the interpretation of Article 18 in the case of Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667. It has been held that the Article assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade and business". It is important to point out that the word "lawful" qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. In The King v. Connare (1939) 61 CLR 596, Justice Starke, J. Of the High Court of Australia interpreted section 21 of the Lotteries and Art Unions Act, 1929, which provided a punishment for selling or offering to sell or accepting any money in respect of the purchase of any ticket or share in a foreign lottery. It was held that the said provision did not contravene section 92 of the Constitution of Commonwealth of Australia which guaranteed inter-State freedom of trade and business. The learned Judge further observed that the provisions of section 21 were aimed at preventing what he graphically described as "illegitimate methods of trading", if sale of lottery was regarded as trading. The Supreme Court of the United States also recognised certain reasonable restrictions and limitations on the freedom of inter-State trade and commerce. See the cases of Champion v. Ames 188 US 321; Stafford v. Wallace 251 US 495; Hammer Swift & Co. v. United States 196 US 375 and Charless H. Baldwin v. G.A.F. Inc. (1934) 294 UC 511.
14. The object of Article 151 seems to be to bring about the economic unity of Pakistan so that its citizens are assured that they are the members of one nation. One of the reasons to achieve this object is the freedom of movement and residence throughout Pakistan as guaranteed by Article 15 of the Constitution. Undoubtedly, the freedom of movement or the passage of goods from one part of the country to another is also important. But Article 151 nowhere says that there can be no restrictions or limitations to be imposed by law for regulating the subject of trade or commerce by the Federal Government or the Provincial Government in accordance with law and in the public interest. Article 151, in my view, is required to be read in harmony with Article 18 and other Articles of the Constitution so that the rights of an individual for the freedom of trade and commerce are balanced. The progress of the country as a whole requires free flow of trade and commerce. At the same time, the State should have the power to check and curb the out-flow and hoarding of essential commodities which is not permitted by the Constitution and the law. Regulatory measures and measures imposing compensatory taxes do not come within the purview of the limitations as contemplated by Article 151.
15. The impugned notified order by the District Magistrate merely prohibited the movement of wheat and wheat products from the District of Rahimyar Khan in the public interest. The same, therefore, cannot be said to be a restriction on inter-Provincial trade and commerce. Such a restriction would equally apply for taking out wheat and its products to the adjacent Districts of Bahawalpur and Rajanpur of the Province of Punjab. At the most, it is a case of reasonable restriction on intr-Provincial business and not the inter-Provincial trade validly imposed under the Act which is an existing law within the meaning of Article 268 of the Constitution. As stated above, the preamble of the Act is itself clear that the Act was enacted in the public interest to control the supply, distribution and movement of, trade and commerce in foodstuffs in the Province of Punjab.
The preamble of the Act can be used as a legitimate aid in discovering the purpose of the Act. See the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279. It is immaterial whether a regulatory or a prohibitory measure is taken by the Legislature directly by the provisions of law or leaving it to the Government functionaries to take such measures. No distinction can be drawn between an action taken by a law or under a law. See the cases of Mian Arif Iftikhar and others v. Lahore Improvement Trust and 2 others PLD 1969 Lah. 1087 and Malik Ghulam Abbas v. Malik Muhammad Mumtaz Khan and 2 others PLD 1980 Lah. 718 at pages 743-744, 759-760. The impugned order could not be invalidated as being violative of Article 151 of the Constitution merely because the out-flow of foodgrains from Rahimyar Khan District to the Province of Balochistan was also incidentally obstructed in addition to the other Districts of Province of Punjab. In the cases of State of Madras v.
Nataraja AIR 1969 SC 147 and Lakshman v. State of M.P. AIR 1983 SC 656, it was observed that Article 301 could be said to have been violated where the executive or Legislative act operated to restrict trade, commerce or inter-flow directly and immediately. But creation of indirect or inconsequential impediment would not be regarded as infringement of the protection. The impugned order dated 20-12-1995 being temporary in nature was for public good and the interests of the petitioner, if any, had to be subservient to it. In Karachi Building Central Authority v. Saleem Akhtar Rajput and 2 others 1993 SCMR 1451, it has been laid down that in judging the conflict of personal fundamental rights with that of larger interests of society, i,e, , environment, the personal rights must yield.
16. It is also noticed that during the relevant period, an uproar was echoed all over the country including the Houses of Parliament and the Provincial Assemblies that wheat and wheat-atta was being smuggled to Afghanistan which had caused their scarcity and shortage in various parts of the country. In the wake of the shortage of the wheat and its products to an alarming extent, there were demonstrations in the country resulting in violence. In some cases, the demonstrators succeeded in looting stores of the foodgrains. It is possible that under the garb of freedom of trade and commerce, the speculative deals may be conducted in such a manner that essential commodities are stocked and cornered causing havoc to the economy and security of the country apart from their shortage and escalation of prices in various parts of the Federation.
17. It may also be relevant to point out that the Act, namely, the Punjab Foodstuffs (Control) Act, 1958, is an existing law within the meaning of Article 268. Necessary adaptations of the Constitution have to be read into as required by clause (6) of Article 268 of the Constitution. The consent of the President is not required to be obtained.
18. Even in the Commonwealth of Australia, the changing circumstances and the necessities compelled the Courts to reach the conclusion that the conception of freedom of trade, commerce and intercourse in a community regulated by law presupposed some degree of restriction on the individual. One could not but be struck by the generality of language used in section 92 of the Commonwealth of Australia Act, 1901. The full import and true meaning of the general words had to be considered, as years went past, in relation to the vicissitudes of altering facts and circumstances which from time to time emerged. See the cases of Willard v. Rawson (1933) 48 CLR 316; R. v. Vizzard (1933) 50 CLR 30; Ex parte Nelson (No,1) (1928) 42 CLR 209; 0. Gilpin Ltd. v.
Commissioner of Road Transport, Tramways (1935) 52 CLR 189; Hughes and Vale Proprietary Ltd. v.
State of New South Wales 1956 AC 241 (Privy Council). In his book Australian Constitution, Third Edition, pages 250 and 278, Professor Nicholas has said that "the first paragraph of section 92 reads more like a slogan than as a part of a legal document, and as a slogan it was defended against an attempt in 1937 to alter the Constitution.. ... ... No section in the Constitution has given rise to so much litigation or to so many and such persistent differences to judicial opinion. No such section is so obviously in need of alteration."
' It may be that section 92 is totally inapplicable to an age of planning in the Commonwealth of Australia.
19. The cases of Arshad Akram & Co. And Star Flour Mills (supra) dealt with specific prohibition of movement and transportation of the foodgrains from the Province of Punjab to other Provinces which are distinguishable from the present case. The operation of the judgment of the learned Single Judge has since been suspended in Intra-Court Appeal in the case of Star Mills. In Asia Flour Mills (supra) filed by the present petitioner Mills, the successive orders of the District Magistrate passed under section 144, Cr.P.C. Were struck down on the ground that the necessary conditions of the said provision of law had not been satisfied. In the other cases decided by the Sindh and Peshawar High Courts, the imposition of export taxes by Zila Councils on the intra-Provincial export of goods was upheld. In the precedent cases, the impact of Article 18 and the other provisions of the Constitution vis-a-vis Article 151 was not considered.
20. The Indian Courts have also taken the same view in the cases of Kariparam Geneshilal and others v. State of Rajasthan and others AIR 1967 Rajasthan 90 (DB); Surajmal Roopchand & Co. v.
The State of Rajesthan and others AIR 1967 Raj. 104; State of Bombay v. R.M.D. Chamarbauwala and another AIR 1957 SC 699; Andhra Sugars Ltd. And another v. State of Andhra Pradesh and others AIR 1968 SC 599; The Malwa Bus Service (Pvt.) Ltd. Etc. v. State of Punjab and others AIR 1983 SC 634; M/s. Krishan Lal Praveen Kumar and others v. State of Rajasthan and others AIR 1982 SC 29; M/s. International Tourist Corporation etc. v. State of Haryana and others AIR 1981 SC 774; State of Bihar and others v. Harihar Prasad Debuka, etc. AIR 1989 SC 1119; State of Tamil Nadu and others v. M/s. Sangjeetha Trading Co. And others AIR 1993 SC 237; Atiabari Tea Co. v. State of Assam AIR 1961 SC 232 and Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan AIR 1962 SC 1406. In the precedent cases, similar questions of law were involved. It was held that the whole object of Article 301 of the Indian Constitution was to have the right to the freedom of trade and commerce throughout the country without there being unnecessary economic or fiscal frontiers or barriers but subject to reasonable regulatory and controlling measures by the State in the larger public interest.
21. The upshot of the discussion is that the provisions of Article 151 of the Constitution have to be construed in juxtaposition with other provisions of the Constitution. The freedom of trade, business, commerce or intercourse throughout Pakistan as also between the Provinces can be regulated by imposition of non-discrminatory, reasonable restrictions in the public interest by or under the law without creating unnecessary economic barricades. However, blanket protection cannot be conceded for each and every restriction. The validity of such measures will be a matter for judicial review in the contact of each case whether the tests of reasonableness, public interest or equality of treatment are satisfied or not. Neither the vires of the Act nor of the Punjab Wheat, Wheat-atta, Maida and Suji Movement (Control) Order, 1976, were called in question by the petitioner. The impugned order dated 20-12-1995 temporary in nature was validly passed by the District Magistrate in the public interest in conformity with law and the Constitution in view of prevailing situation. No valid exception could be taken to the impugned order and the registration of the criminal case in pursuance thereof. The criminal case would, however, be decided on its merits and in accordance with law.
22. For the foregoing reasons, I do not find any substance in the writ petition which is hereby dismissed in limine.
Petition dismissed. PLD 1997 Lahore 307 Before Dr. Khalid Ranjha, J MUHAMMAD ASHIQ---Appellant versus THE STATE--Respondent Criminal Appeal No,117 of 1995, heard on 17th September, 1997.
(a) Interpretation of Constitution--- ----Fundamental Right---To render effective a Constitutional provision which guarantees a fundamental right, it has to be given a broad and liberal interpretation--Restrictive or procedural interpretation is likely to destroy rather than safeguard such right having bearing on liberty of an individual. [p. 315] A
(b) Penal Code (XLV of 1860)--- ----S. 411/468---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.13---Criminal Procedure Code (V of 1898), S.403---Protection against double punishment--- Conviction for the second time on the same facts, not legal---Accused had been convicted and sentenced by the Special Judge, Anti-Corruption under S.411/468, P.P.C. Read with S.5(2) of the Prevention of Corruption Act, 1947 in a case registered for theft of a motorcycle---Earlier accused had already been tried and acquitted by the Magistrate in a case registered regarding the theft of the same motorcycle under S.379, P.P.C. And S.14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Held, Art.13 of the Constitution had offered a complete protection to the accused and the Exceptions set out in 5.403, Cr.P.C. As such could not be read to whittle down the effect of the Constitutional guarantee---Accused having once been acquitted by a Court of competent jurisdiction and such finding having attained finality, his conviction on the same facts again by the Special Judge, Anti-Corruption, was not permissible---Accused was acquitted accordingly. [pp. 315, 316] B & C Legal Maxims by P.Sreenevasrow 1873; Muhammad Niaz v. Martial Law Administrator PLD 1979 Quetta 179; Maqbool Hussain v. State of Bombay 1963 SC SCR 730; Venkataraman v. State of India 1954 SC SCR 115; Kalaweati and another v. The State of Himachal Pradesh AIR 1953 SC 131; Muhammad Ishaque v. The State 1992 PCr.LJ 1273; Muhammad Akram v.
Government of Punjab PLD 1979 Lah. 462; Pir Bakhsh's case 1979 PCr.LJ 24; Tassawar Hussain v. State 1986 PCr.LJ 2218; Zar Badshah Masood v. Commandant/Magistrate Ist Class and another 1985 PCr.LJ 499; Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247; Law Terms and Phrases Judicially Interpreted by Sardar Muhammad Iqbal Khan Mokal; S.T. Sahib v. Hasan Ghani Sahib AIR 1957 Mad. 646 and Phrases Judicially Defined by Roland Burrows K.C., Vol. 4; Rawlings v.
Jonkins (1843) 4 QB 419 ref. Mian Abdul Khaliq for Appellant. Kh. Shaukat Ali for the State.
Date of hearing: 17th September, 1997.
' Muhammad Ashiq Constable was charged under section 468/409/411, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 in the Court of Special Judge, Anti-Corruption, Lahore Camp at Okara. He was found guilty under section 411/468, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to six months' R.I. On each count under section 411/468, P.P.C.
With a fine of Rs,10,000 on each count. In default of fine, he was to undergo R.I. For four months on each count. The sentence of imprisonment was ordered to run-concurrently.
2. According to the trial Court, as offence under section 5(2) of Prevention of Corruption Act, 1947 was included in section 411/468, P.P.C. No separate sentence was being awarded under section 5(2) of Prevention of Corruption Act, 1947. The above conviction was recorded vide judgment dated 12-2-1995 and the same is now under appeal.
3. On the report of one Sarwar Din, a case was registered on 13-3-1991 vide F.I.R. No,75 of 1991 at Police Station, A-Division, Okara to the effect that his motorcycle Yamaha 80 CC, model 1985, Chassis No,5 Ko5252, K. Engine No,5 K2-05252, Registration No,7306/OK was stolen while parked outside his house situated in Nawab Colony, Okara. Intimation about the registration of this case was also sent to CIA/CRO, Lahore. As neither the stolen motorcycle was recovered and nor the accused could be traced, the file of this case was consigned as untracked on Tabulation of "Adam Pata" Report dated 24-4-1991 by Abdul Aziz, Inspector CIA, Okara, then seized of the investigation.
4. On 13-11-1993 a police party from CRO/CIA, Staff, Lahore came to Okara for checking purposes.
While they were at the gate of Police Station A-Division, they stopped Muhammad Ashiq, Constable (appellant) then posted as guard at the District Malkana situated in the premises of Police Station A-Division, Okara, to check his motorcylce which bore registration plate bearing No,FDK,1115, with words "Punjab Police" written thereon.
5. On inspection, by C.I.A., Staff from Lahore, it transpired that Registration No, FDK 1115 was fake. Its actual registration number was OK-7306 and it was the same vehicle about the theft of which F.I.R.
No,75 of 1991 already stood registered at Police Station 'A-Division'. It was thus taken into possession as a stolen vehicle and thereafter, an F.I.R. No,357 of 1993 was registered on the following day (14-11- 1993) on the report of Arshad Latif, Inspector/S.H.O. Police Station 'A-Division' under direction of Superintendent of Police, Okara. Recovery memo. In respect of this motorcycle was prepared under F.I.R. 75 of 1991 and a copy thereof was also placed on the file of F.I.R. No,357 of 1993.
6. It is interesting that 'A-Division' Police prepared two challans in December, 1993 relatable to same stolen vehicle. One in respect of F.I.R. No,75 of 1991 under section 379/P.P.C. And 14/6/79, Islamic Law for trial of the appellant before Assistant Commissioner, Okara and the other challan against him was submitted simultaneously in F.I.R. No, 357 of 1993 under sections 409/468 and 5(2), P.C.A., 1947 to the Court of Special Judge, Anti-Corruption.
7. In the case before the Court of Assistant Commissioner, charge was framed against the appellant under section 411, P.P.C. And evidence was adduced by the prosecution. After scrutiny and due appraisal of the prosecution evidence, the trial Court acquitted the appellant vide judgment dated 20-11-1994.
8. In the challan arising out of F.I.R. No,375 of 1993, the learned Special Judge, issued process on 16- 11-1994 for 22-11-1994 on which date appellant was produced in custody and the matter was adjourned to 13-12-1994 for framing of charge. On this date appellant made an application under section 249-A, Cr.P.C. Pointing out that his trial was unwarranted as he had been tried on that same facts earlier and acquitted by a competent Court vide judgment dated 20-11-1994 (Exh.DI). The learned Judge instead of attending to the application under section 249-A, Cr.P.C. Proceeded to frame the charge under section 411/468/409, P.P.C. Read with 5(2)47, P.C.A.
9. The appellant denied the charge and prosecution led the evidence. Muhammad Arshad Inspector Police appeared as P.W.1 and stated motorcycle recovered from the accused was stolen property of case registration vide F.I.R. No,75 of 1991 and on that account he registered F.I.R. No,375 of 1993 under order of Superintendent of Police, Okara. No evidence was produced in respect of entrustment of the motorcycle or forging of any documents. The other material witness was Sarwar Din P.W.6. He deposed about lodging of F.I.R. No,75 of 1991 and the ownership of the stolen motorcycle. Muhammad Mansha F.C. P.W.7 and Shahbaz, S.I. P.W.8 vouched for the recovery of this motorcycle from the possession of the accused and exhibited the recovery memo. The appellant pleaded false and malicious frame up at the behest of Shahbaz, S.I. And relied on Exh.D1. The order of his acquittal dated 20-11-1994, passed by Assistant Commissioner, Okara.
10. The learned Special Judge found the appellant guilty under sections 468/411 and 5(2)
47. But held that as section 5(2)47 was included in section 411/468 no sentence need be passed in that behalf.
11. Learned counsel for the appellant submits that as on these set of from appellant stood acquitted already, his fresh trial was violative of his fundamental right, enshrined in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The conviction, on that score alone was not sustainable. He maintained that the registration of the second F.I.R. No,375 of 1993 and sending up challan thereunder was amounted to prosecuting the appellant twice for the same offence/facts which too also not permissible either under section 25 of the General Clauses Act as well as section 403 of the Criminal Procedure Code.
12. Learned counsel for the State submits that the accused/appellant has been tried under different offences although arising out of the recovery of the same stolen motorcycle. He submitted that affixing a fictitious registration plate rendered the accused liable under section 468, P.P.C. For which he had been neither tried nor acquitted by the learned Assistant Commissioner. The trial before the Special Judge was protected by subsections (2), (3) and (4) of section 403, which were essentially provisos to section 403(1), Cr.P.C. He further argued that if one reads Article 13 of the Constitution of the Islamic Republic of Pakistan in conjunction with section 26 of the General Clauses Act and section 403, Cr.P.C. It cannot be said that the conviction of the appellant is repugnant to Constitution protection against double punishment. Supporting the judgment, he further added that the conviction of the appellant was in conformity with the evidence adduced by the prosecution.
13. To better appreciate the issues arising in this appeal it would be appropriate to examine these provisions. They are reproduced as under:-- "ARTICLE 13 OF THE CONSTITUTION OF ' PAKISTAN. Protection against double punishment... ... No person... ...
(a) shall be prosecuted or punished for the same offence more than once.
(b) ...........
' SECTION 403, CR.P.C.
' Person once... ...Acquitted not to be tried for same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, or for which he might have been convicted under section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, subsection (1).
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
' SECTION 26 OF GENERAL CLAUSES ACT. ' Offences punishable under two or more enactments.
' Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
' Section 3(37) of General Clause Act (Defmition) Offence.
'Offence' shall mean any act or omission made punishable by any law for the time being in force.
' Section 4(1)(o), Criminal- Procedure Code (Definition) Offence.
'Offence' means an act or omission made punishable by any law for the time being in force: ' It also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.
14. Article 13 of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once. This Article enshrines fundamental right against double jeopardy to any person. It is a reiteration of legal Maxims: Nemo debet his vexari si constat curiae quod sit pro una et eadem cause i,e, No one ought to be twice punished if it be proved to the Court that it be for one and the same cause. Legal Maxims by P. Sreenevasrow, 1873, Muhammad Niaz v. Martial Law Administrator PLD 1979 Quetta 179.
' Prosecution against double jeopardy as a Constitutional right, was provided for the first time in the Constitution of Islamic Republic of Pakistan, 1973. Such a fundamental right did not exist either in 1956 Constitution or for that matter in 1962 Constitution.
' Prior to the coming into force of Constitution of Pakistan, 1973 an accused person was protected against double jeopardy through the procedural safeguards provided by section 403, Criminal Procedure Code read with section 26 of the General Clauses Act. In this behalf Courts have regularly sought guidance from the common law interpretation of the time honoured maxim 'autre fois convict' and 'autre fois acquit'. Protection against double jeopardy also figures in another Maxim: 'Res judicata pro veritate accipitur'. The interpretations of these two principles of law rendered by the British Courts were given statutory recognition in the shape of section 403 of the Code of Criminal Procedure and section 132 of the Evidence Act, 1872 (now Article 15 of Qanun-e- Shahadat, 1984).
' The Indian Constitution on the other hand tends to frame this right in a rather narrow compass. In Article 20(2) it provides that no person shall be "prosecuted" and "punished" for the same offence more than once. It may be noted that unlike Article 13 of our Constitution, in the corresponding provision of the Indian Constitution the words "prosecution" and "punishment" have been used in conjunctively to accord Constitutional status only to the principle autre fois convict and not to the principle "autre fois acquit". In short the Indian Constitution raises only one limb of the common law to the level of fundamental right and the other is left to be regulated by general law of the land. In India, to seek protection of the Constitutional guarantee in this behalf, two preconditions are required to be fulfilled i,e, that there should be not only the "prosecution" but also a "punishment" in the first instance in order to bar a second prosecution and punishment for the same offence. The Indian Supreme Court has elaborated this point fair detail in cases like: Maqbool Hussain v. State of Bombay 1963 SC SCR 730; Venkataraman v. State of India 1954 SC SCR 115 and Kalaweati and another v. The State of Himachal Pradesh AIR 1953 SC 131.
15. The protection guaranteed by Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 is, however, not contingent on an earlier conviction alone as in the case of Indian Constitution.
Article 13 provides safeguard both against the second prosecution as well as second punishment for the same offence. The words "prosecution" and "punishment" it may be noted, have been used "disjunctively". In Muhammad Ishaque v. The State 1992 PCr.LJ 1273 this Court took a rather strict view and held that the second prosecution for the same offence is barred under Article 13 of the Constitution only where the prosecution has finally concluded and ended either in acquittal or conviction.
16. Similarly in Muhammad Akram v. Government of Punjab PLD 1979 Lah. 462 it was observed that the bar of second trial under Article 13 of the Constitution operated only in the event of an accused having already been acquitted or convicted for the same offence or facts. The addition of word "facts" has enlarged scope of the word "offence" by construing it in generic sense.
' The issue of double jeopardy was also examined rather liberally by the Karachi High Court in case of Pir Bakhsh's case 1979 PCr.LJ 24. The petitioner was being prosecuted under section 5 of West Pakistan Control of Goondas Ordinance, 1969 on the report of S.H.O. Police Station, Phulleli, District Hyderabad. While those proceedings were still pending the petitioner was again sought to be prosecuted under section 14 of the Crimes Control Act before the Tribunal set up therein on the same facts. Although Goonda Ordinance, 1959 stood repealed by the Crimes Control Act, 1975; the pending proceedings under Goonda Ordinance were saved by section 27 of the Crimes Control Act. In these circumstances, the Court quashed the proceedings under Crime Controls Act as it amounted to subjecting the petitioner to double jeopardy by prosecuting him on the same facts regarding the same charges under separate proceedings simultaneously. The proceedings were held repugnant to the Constitutional guarantee that no person shall be prosecuted or punished for the same offence more than once. It was observed that Constitution provided clearly a bar even with regards trial and prosecution apart from punishment to which a person may eventually subjected.
17. The issue of autre fois acquit and second trial amounting to double jeopardy also arose in the case of Tasawar Hussain v. State 1986 PCr.LJ 2218. In this case, the petitioner after having been convicted to 14 years, challenged his conviction before the High Court on the ground that the Commissioner while referring his case to Jirga did not hear him and the High Court set aside his conviction on that score. No order had been made by the High Court for retrial of the petitioner. The Ilaqa Magistrate again summoned him to face commitment proceedings. He challenged the process of commitment proceedings before the High Court on the ground that the proceedings were violative of protection against double jeopardy as envisaged under Article 13 of the Constitution.
18. Adopting a broad perception of the word "prosecution", this Court held that fundamental right indicated by Article 13 of the Constitution covered the principles of both autre fois acquit and autre fois convict. In this judgment Mr. Justice Rustam S. Sidhwa observed that if this Article was broken up, it would amount to laying down that no person who has been prosecuted for an offence earlier shall be prosecuted for the same offence or no person who has been punished for the same offence earlier shall be punished for the same offence again. Basically the first part of the wording covered the second and the second part has been seemingly added to cover cases where the earlier prosecution should have been prosecution in the strict sense of the term and not of the proceedings akin to a criminal proceedings. However, in Zar Badshah Masood v.
Commandant/Magistrate 1st Class and another 1985 PCr.LJ 499 this Court gave a procedural perspective to Article 13 by observing:-- "Plea of autre fois acquit, statutorily recognised in section 403, Code of Criminal Procedure can be successfully raised only when a person is tried again, for the same offence or on the same facts for any other offence, for which a different charge from the one made against him might have been made under section 237. ... .
' Nevertheless, issue-estopped does not prevent the trial of any offence as does autro fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a Court of competent jurisdiction. Therefore, both under Article 13, section 26 of the General Clauses Act, read with section 403 of the Code of Criminal Procedure to operate as a bar, the trial or subsequent prosecution must be for the 'same offence' an 'offence whose ingredients are the same Article 13 of the Constitution proceeds upon the same principle."
' From this observation one gains an impression that Article 13 of the Constitution of Islamic "Republic of Pakistan, 1973 has to be construed and interpreted interchangeably with section 403, Cr.P.C. With utmost respect, I, however, find it very difficult to ascribe to such a narrow and restrictive interpretation of a provision of the Constitution intended to safeguard a fundamental right relatable to freedom of an individual.
19. The case of the appellant is seemingly covered on all force by a Judgment of the Supreme Court in Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247. In this case the parties were closely related. They had a land dispute about which the respondents had made a complaint stating therein that despite delivery of the possession pursuant to settlement, the appellants had trespassed on the same and, therefore, committed the offence of trespass under section 447, P.P.C. This complaint was filed as not proved; but all same was revived and consequently a fresh inquiry/trial commenced. This view was set aside by the Government. The order of Government was challenged and the High Court upheld the plea that original complaint had not been properly tried by a proper forum, therefore, it required to be re-investigated and retried and the case was sent back for further trial for fresh proceedings. On the same premises, an F.I.R. Had been lodged resulting in acquittal and the same was not challenged. The Supreme Court, held, neither the Constitution nor the law permitted the retrial of an offence for which a person having once been tried as accused stood finally acquitted. The judgment of the Magistrate having attained finality, the same accused could not be re-tried for the same offence in the complaint case. The judgment of the High Court remanding the case for fresh trial was thus set aside. The word "prosecution" as appearing in Article 13 of the Constitution was taken in a general sense, and rightly so, as this word has not been defined in the Criminal Procedure Code or for that matter in the General Clauses Act. In Law Terms and Phrases Judicially Interpreted by Sardar Muhammad Iqbal Khan Mokal, "prosecution" has been defined in its generic sense as follows:-- "The term 'prosecution' will normally mean criminal proceedings in general. But for the purpose of the tort of malicious prosecution, it includes all criminal proceedings to which any oral obloquy is attached. The word 'prosecution' is not to be taken in the restricted sense in which it is used in the Code of Criminal Procedure. It is not essential that the original proceedings should have been of such a nature as to render a person against whom it is taken liable to be arrested, fined or imprisoned. S.T. Sahib v. Hasan Ghani Sahib AIR 1957 Mad.
646."
' Similarly, in Words and Phrases Judicially Defined, Vol. 4 by Roland Burrows K.C. It is stated that "a prosecution in common parlance, means, not bringing an action, but preferring an indictment or information.' Rawlings v. Jonkins (1843) 4 QB 419 per Patteson, J. At 421. To render effective a Constitutional provision which Guarantees--a fundamental right, it has to be given a broad and liberal interpretation. A restrictive or procedural interpretation is likely to destroy rather than safeguard this right having bearing on liberty of an individual. Engrafting of the provisos to section 403, Cr.P.C. To Article 13 of the Constitution, therefore, seems a little inapt.
20. In this view of the matter, I reckon that Article 13 of the Constitution offers a complete protection to the appellant. Exceptions set out in section 403, Cr.P.C. As such cannot be read to whittle down the effect of this Constitutional Guarantee. The appellant once acquitted by a Court of competent jurisdiction and such findings having attained finality, his conviction on the same facts again is not permissible.
21. Resultantly, this appeal is accepted and the conviction of the appellant is set aside. He is on bail.
He is discharged of his bail bonds.