MUHAMMAD NASEEM CHAUDHRI, J.- This is a petition find under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A of the Code of Criminal Procedure for the quashment of First
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide-
(a) for controlling the price, at which any essential commodity may be bought or sold in any area;
(b) for regulating the production, treatment and keeping of any essential commodity;
(c) for regulation, by licences, permits or otherwise, the transport, movement and distribution between the provinces of an essential commodity;
(d) for prohibiting the withholding of sale of an essential comnURiity ordinarily kept for sale;
(e) for requiring any person holding stock in a Province of an essential commodity to sell in another Province the whole or a specified part of the stock at such price, to such persons or class of persons and under such conditions as may be specified in the order;
(f) for fixing the maximum quantity of any essential commodity which may at any time be possessed By a producer or dealer;
(g) for collecting any information or statistics with a view to regulating or prohibiting any of the matters aforesaid;
(h) for requiring persons engaged in any of the matters aforesaid in respect of any essential commodity to maintain and produce for inspection such books, accounts, records relating to their business, and to furnish such information relating thereto, as may be specified in the order; ^(i) for requiring every importer, producer and dealer to mark the essential commodities with the sale prices and to exhibit on his premises a price list of the essential commodities held by him for sale; and
(j) for any incidental and supplementary matters, including in particular the entering and search of premises, vehicles vessels and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be committed, or any records connected therewith, the grant or issue of licences, permits or other documents and the
4. Delegation of powers. The Federal Government may, by notified order, direct that any power conferred on it by or under this Act shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by-
(a) such officer or authority subordinate to the Federal Government, or
(b) such Provincial Government or such officer or authority subordinate to a Provincial Government, as may be specified in the direction.
2. Fixation of prices. (1) Subject to such general or special order made under Section 3, the Controller-General may, by notification in the official Gazette, fix specific maximum prices of essential commodities and different prices may be find for different localities for different classes or categories of any essential commodities.
(2) No person shall sell or resell any essential commodity at a price higher than the maximum price so find.
(3) Every dealer, importer or producer shall supply to the Controller- General such information regarding the production, importation, purchase, stock, sale or distribution of any of the essential commodities as the Controller-General may, by an order in writing or by a notified order, require.
3. Penalties. (1) Any person who contravenes any order made under Section 3 or a notification issued, or order made, under Section 6 shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to one lac rupees: Provided that, if a person convicted for an offence punishable under this sub-section is again convicted for such offence, the term of imprisonment awarded to him shall not be less than one year.
(2) If the order made under Section 3 so provides, any Court trying any contravention of such order may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to the Federal Government.
1. Following is the Schedule of items issued under Section 2 of the Act of 1977:- , SCHEDULE f (See Section 2)
1. Tea.
27. Matches 40/50 sticks.
2. White Sugar.
28. Coal.
3. Milk.
29. Yam and Cloth all sorts.
4. Powdered Milk.
30. Towel.
5. Milk food for infants.
31. Soaps laundry and washing
6. Edible Oils, hydrogenated or soap and toilet soap.
Otherwise.
32. Tooth brush.
7. Aerated water, fruit juices and 33. Tooth paste.
Squashes.
34. Shaving blades.
8. Cigarettes.
35. Shaving cream, soap and stick.
9. Salt.
36. Footwear all sorts.
10. Potatoes.
37. Shoe polish.
11. Onions.
38. Paper all sorts.
12. Pulses all sorts.
39. Exercise books of all sorts.
13. Fish all sorts.
40. Text books of all sorts.
14. Beef.
41. Cycles.
15. Mutton.
42. Mechanically^ propelled vehicle including those in completely I6. Eggs.
17. Gur. Knocked-down condition and
18. Biscuits (Packeted). Parts thereof, provided that
19. Spices and Vegetables. Motor cars included in the
20. Red chillies. Mechanically propelled
21. Drugs and Medicines. Vehicles shall have the same
22. Electric lamps (Bulbs). Meaning as in the Motor
23. Kerosene Oil. Vehicles Act, 1939.
24. Oil Stoves.
43. Tractors.
25. Charcoal.
44. Chemical Fertilizers all sorts.
26. Firewood.
45. Tyres and Tubes for mechanically propelled vehicles and cycles.
46. Batteries and accumulators all sorts.
47. Dry cell all sorts.
48. Marine Engines.
49. Lubricants and Grease all 0 sorts. v 50. ' Jute bags and hessian and kenaf products.
51. Poultry Feed-
52. Bricks.
53. Cement.
2. The following relevant Notifications issued by the Government of Pakistan are also reproduced in the same context: - GOVERNMENT OF PAKISTAN MINISTRY OF INDUSTRIES Notification No. S.R.O. 743(I)/7, 10th June, 1978.. In exercise of the powers conferred by clause (b) of Section 4 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977), the Federal Government is pleased to direct that the powers conferred on it by the following clauses of sub-section (2) of Section 3 of the said Act namely:- Clause (a), in respect of the commodities mentioned at serial Nos. 3, 10 to 15, 19, 20, 25, 26 and 52 of the Schedule to the Act, Clauses (d), (f), (g) and (j), in respect of all the commodities mentioned in the schedule to the Act, shall be exercisable also by the officers specified below namely:-
(1) Secretary, Industries Department, Government of the Punjab/Sindh/Baluchistan/North-West Frontier Province;
(2) Director of Industries, Government of the Punjab/Sindh/Baluchistan/North-West Frontier Province;
(3) All Deputy Commissioners; and
(4) All Additional Deputy Commissioners.
Sd/- (Allauddin Ahmad)
Secretary NO. CGPS-l(9)/77.
GOVERNMENT OF PAKISTAN MINISTRY OF INDUSTRIES Islamabad, the 10th June, 1978.
NOTIFICATION In exercise of powers conferred by clause (a) of Section 2 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 (XXIX of 1977) and in supersession of this Ministry's Notification No. SRO 731(I)/77, dated the 2nd August, 1977, the Federal Government is pleased to authorise the officers specified below to exercise the powers of the Controller General under Section 6 of the said Act:-
(1) Secretary, Industries Department, Government of the Punjab/Sindh/Baluchistan/North-West Frontier Province;
(2) Director of Industries, Government of the Punjab/Sindh/Baluchistan/North-West Frontier Province;
(3) All Deputy Commissioner; and
(4) All Additional Deputy Commissioners.
No. CGPS-l(9)/77 Sd/- (Allauddin Ahmad)
Secretary
3. I have heard the learned counsel for the contesting parties and gone through the record before me. Learned counsel for the petitioner argued that no notification under Sections 3/6 of the Act, 1977 had been issued by the competent authority (District Magistrate Okara) fixing the sale price of diesel so as to attract the provisions of Section 7 of the Act for the criminal liability of the writ petitioners and other accused.,He added that rather no notification in the matter could be issued by the District Magistrate, Okara as diesel has not been included in the. Schedule as one of the items about which a notification for fixing the price could be issued. According to him it is not a case of deceiving the complainant so as to attract the provisions of Section 420, Pakistan Penal Code. He added that it is not a case of over-charging and that act of less measuring the diesel does not come within the purview of cheating punishable under Section 420, Pakistan Penal Code.
On the contrary learned Assistant Advocate General canvassed that the complainant was provided/supplied less quantity of diesel from whom more price was recovered by the accused to the extent of 11/12 liters of diesel who was thus criminally liable and that the First Information Report required and desired to be quashed was correctly lodged in view of Section 154 of the Code of Criminal Procedure. My view is that the reasoning adopted by the learned counsel for the writ petitioner has to prevail. The police cannot claim the supervisory jurisdiction in such like matters keeping in view the substantive-cum-procedural codified law reproduced above. Without the notification to be issued under Sections 3/6 of the Act, 1977 for some specified period by the District Magistrate, Okara keeping in view the narrated/included in the above-reproduced Schedule of the Act, the matter does not become cognizable and if the aforesaid type of correct notification is issued that is operative for the relevant period contained therein. However, with respect to petrol/diesel gasoline products suffice it to express that the minimum price is find by the Federal Government itself and not by the Magistrate of the District under the Act, 1977 who is not made competent thereof as such like item(s) stand eclipsed from the aforesaid Schedule. Further it is matter of common knowledge that the prices of diesel/petrol are find by the Federal Government as have been announced in the month of July, 1998. It, therefore, becomes clear that the Police of Police Station Choochak, District Okara exceeded its jurisdiction and acted illegally by registering the FIR under the Act, 1977.
10. About the attraction of Section 420, Pakistan Penal Code I would express that no fraud was committed. The alleged recpvery of more amount of price than due in the matter allegedly by supply of less liters does not come within and is not covered by the definition of "fraud" reproduced above. The less measuring of diesel is to be dealt with under the Punjab Weights and Measures (International System) Enforcement Act, 1975. This Section 420, Pakistan Penal Code is mentioned by the police to project its authority to make the offence cognizable, even though bailable, so that the affected/victim is brought in its grip and control. I, therefore, hold that the petitioner and his co- accused are not criminally liable under Section 420, Pakistan Penal Code.
I
11. The cumulative effect of the aforesaid analysis of the matter and discussion is that FIR No. 169 registered on 7.6.1995 at Police Station Choochak, District Okara is without jurisdiction, without authority and thus mala fide which is liable to be quashed.
12. At this stage I would myself like to look into, analyse and discuss the matter/dispute contained in the aforesaid First Information Report. It is that according to Riaz Ahmad complainant he was charged price for 226 liters of diesel while he told the concerned Salesman that 214 liters of diesel filled the drum whose meter was not correctly running as 226 liters of diesel were shown to have been put in the drum and thus he was defrauded of the price of 11/12 liters of diesel. As expressed and held above this dispute has not to be taken/considered within the purview of "FRAUD". It is covered by the Punjab Weights and Measures (International System) Enforcement Act, 1975 (Act No. LII of 1975) published as PLD 1976 Punjab Statutes Page 1 and Punjab Weight? And Measures (International System) Enforcement Rules, 1976 printed as PLD 1976 Punjab Statutes 45. The provisions of the said Act and Rules do not empower the police to proceed in the matter of less measuring of petrol/diesel and to take cognizance at the instance of Riaz Ahmad complainant to register the First Information Report in dispute.
13. For proper application of law and to ascertain the legislative intent for which it was brought on the Statute Book, it is appropriate to reproduce as under the relevant provisions of the aforesaid Act No. LII of 1975 enforced to regulate the use thereof and to provide for matters connected therewith in the Province of the Punjab:- "Sec.
2. Definitions.
(a) Assistant Controller means Assistant, Controller appointed under this Act:
(b) "Commercial Weight or Measure" means a weight or measure purporting to be a standard weight or measure used or intended to be used in any transaction of trade or commerce;
(c) "Controller" means the Controller appointed under this Act;
(d) "Deputy Controller' means the Deputy Controller appointed under this Act;
(e) "Government" means the Government of the Punjab;
(f) "Inspector" means an Inspector including Assistant Inspector appointed under this Act;
(g) "Measuring Instrument" includes any instrument for measuring length, area, volume or capacity but does not include a weighing instrument;
(j) "Secondary Standard" means the sets of weights and measures prepared under Section 3 of this Act;
(k) "Stamping" means marking in such manner as to be, so far as practicable, indelible and includes casting, engraving, etching or branding;
(l) "Trade" means any sale, bargain, transaction dealing or contract and includes collection of tools and duties;
(m) , "Verification" means the verification or reverification made under this Act or rules made thereunder: l
(n) "Weighing Instrument" means any instrument for measuring weight and includes scales with the weights belonging thereto, beamscales, balances, spring balances, steel yards and other weighing machines; and
(o) "Working Standard" means the sets of weights and measures prepared under Section 4 of this Apt.
Sec:
3. Secondary Standards.--(1) For the purpose of verifying the working standards, such standard weights and measures shall be prepared by such authority or person as may be approved by Government, and such weights and measures shall be made of such material, be of such weight, length, form and specifications and made in such manner as may be prescribed and shall be stamped in such manner as Government may approve.
(2) The standard weights and measures so prepared and stamped shall be called secondary standards.
(3) The Secondary Standards shall be kept at such places and by such officers as may be specified by Government.
(4) The Secondary Standards shall be verified or reverified with the Reference Standards within the prescribed period and shall be adjusted or renewed, if necessary, and shall be marked with the date of verification in the prescribed manner by such officer as Government by direct.
(5) A Secondary Standard which is not so verified, adjusted or renewed and marked within the prescribed period shall not be deemed to be legal and shall not be used for the purpose of tbs Act.
Sec.
4. Working Standards.- (1) For the purpose of verifying " commercial weights and measures in use, Government may provide such standard weights and measures, wbch conform to the Reference Standard, as it thinks fit to be Working Standards, and they shall be verified with the Secondary Standards before being stamped.
(2) A Working Standard shall not be deemed legal or be used for the purpose of tbs Act, unless, it has been verified or reverified and marked b the prescribed mariner, within such period as may be prescribed before the time at wbch it is used.
(3) A Working Standard wbch has become defective shall not be legal or be used for the purposes of tbs Act until it has been reverified and marked b the prescribed manner.
(4) The Workbg Standard shall not be kept at such places, b such manner and by such persons as may be prescribed.
Sec. 5.- Standard Weighing and Measuring Instrument.
(1) For the purpose of verifying the weigbng instruments and measuring instruments used b trade or commerce, Government may cause to be prepared as many sets of standard weigbng instruments and Standard measuring instruments as it may consider expedient and the Correctness of such instruments shall be verified, and the date of such verification shall be marked, b such manner as may be prescribed.
(2) The Standard Weighing instruments and standard measuring instruments shall be kept at all places where the secondary standards or workbg standards are kept.
Sec. 6.-Appointment of Controller, Inspectors, etc.- (1).Government may appobt a Controller of Weights and Measures, Deputy Controllers, Assistant Controllers, Inspectors and Assistant Inspectors of Weights and Measures as it may deem fit.
(2) Subject to the provisions of this Act and the rules, all Deputy Controllers, Assistant Controllers, Inspectors and Assistant Inspectors shall perform their functions under the general superintendence and control of the Controller.
(3) The Deputy Controllers and Assistant Controllers, may, in addition to the powers and duties conferred or imposed on them by or under this Act exercise any power or discharge any duty so conferred or imposed on an Inspector.
(4) Government may, by general by special order, define the local limits within which each Inspector shall exercise the powers and discharge the duties conferred or imposed on and Inspector by or under this Act.
(5) Every Controller, Deputy Controller, Assistant Controller, Inspector and Assistant Inspector shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code (Act No. XLV of 1860).
Sec.
7. Verification and Stamping by Inspectors.
An Inspector shall, at such place within his jurisdiction and at such time as the Controller may direct, verify a weight, measure, weighing instrument or measuring instrument brought to him for the purpose and shall, if he finds it correct and in conformity with this Act and the rules, stamp it with a stamp of verification in the prescribed manner.
Sec.
8. Power to Inspect and verify weights and measures.
An Inspector may, at all reasonable times, inspect and verily with a secondary standard or a working standard or, as the case may be, With a weighing instrument or a measuring instrument prescribed for the purpose, any weight, measure, weighing instrument or measuring instrument which is used in any transaction of trade or commerce or is in possession of any person or is found on any premises for such use, and may, for the purpose of such inspection and verification enter into or upon any place or premises and require any trade or any employee or agent of a trader to produce before him any weight, measure, weighing instrument or measuring instrument or any document or record relating thereto.
(2) For the purpose of verifying any weight, measure, weighing instrument or measuring instrument (1), the Inspector may verify the weight or measure of any article sold or delivered in the course of any transaction of trade or commerce.
(3) Where any weight, measure, weighing instrument or measuring instrument inspected and verified under sub-section (1) is not found to be what it purports to be, the Inspector may seize or detain the same against a receipt.
Sec.
10. Power to adjust weights and measures.
The Controller may, if he considers it desirable that in any area a weight, measure, weighing instrument or measuring instrument should be adjusted, require an Inspector to adjust in such manner as he may direct, such weight, measure, weighing instrument or measuring instrument and the Inspector shall adjust it accordingly.
Sec.
12. Penalty for neglect or refusal to produce weight or measure, etc. For inspection. -Whoever-
(a) refuses or neglects to produce for inspection under Section 8 any weight, measure, weighing instrument or measuring instrumt >.t or any document or record relating thereto in his possession o. On his premises; or
(b) refuses to permit an Inspector to inspect and verily such weight, measure, instrument, document or record; or
(c) obstructs the entry of an Inspector into or upon any place or premises he is authorised by Section 8 to enter; or
(d) fails to maintain the records and accounts or to produce them before an Inspector as required under Section 11; or
(e) otherwise obstructs or hinders an Inspector in the performance of his duties under this Act or the rules; shall be punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to two thousand and five hundred rupees, or with both.
Sec.
14. Prohibition of use of weights and measures other than standard weights and measure .-
(1) Notwithstanding anything contaii ed in any other law or any custom or usage or practice, nb unit of measure, other than a standard weight or standard measure, shall, after the expiry of six months from the date on which this section has come into force in any area or in relation to any goods or undertakes, in any transaction of trade or commerce or in any dealing or contract.
(2) Government may, by notification in the official Gazette, permit the continuance of the use in any area in which, or in relation to any class of goods or undertakings in respect of which, this section has tome into force, of such weight or measure which was in use immediately before the date of such coming into force, for such period not exceeding three years from that date, as may be specified in the notification.
(3) Whoever contravenes the provisions of sub-section (1) shall be punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to two thousand and five hundred rupees, or with both.
In Sec.
19. Penalty for forging or using forged stamps or measures, etc.- Whoever forges or counterfeits any stamp used under this Act for the stamping of any standard weight or standard measure, or weighing instrument or measuring instrument, or wilfully increases or diminishes a weight or standard measure, or weighing instrument or measuring instrument, or wilfully increases or diminishes a weight or measure so stamped shall be punishable with imprisonment for a term which may _ extend to two years, or with fine which may fextend to ten thousand rupees, or with both.
Sec.
20. Penalty for using or selling forged weight, measures, etc. - Whoever knowingly uses, sells, disposes, of or exposes for sale any weight or measure or weighing instrument or measuring instrument with a forged or counterfeit stamp thereon, or a weight or measure stamped under this Act which has been increased or diminished, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.
Sec.
27. Cognizance of offences.- No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made before a Magistrate of First Class by the Controller or Inspector or any other person authorised in this behalf by Government.
14. Following rules are being reproduced from Weights and Measures (International System)
Enforcement Rules, 1976:- Rule7. Commercial Weights and Measures.- All commercial weights, measures of length and measures of capacity shall conform as regards denomination, material used in preparation, construction and Rule 8. Commercial-weighing and measuring Instruments.
(1) All weighing instruments and measuring instruments used for intended to be used in transactions of trade and commerce shall conform, as regards capacities, material and design to the specification laid down in Schedule VI.
(2) The limits of error which may be tolerated in such weighing and measuring instruments at the time of verification, shall be as specified in Schedule VI.
(3) A beamscale used in transactions in trade commerce shall be suspended to a stand or to a chain by a hook: Provided that this sub-rule shall not apply to hawkers and persons other than shopkeepers.
Rule 9. Periodical verification of commercial weights and measures.-
(3) All petrol and fuel pumps shall be verified and stamped in accordance with the provisions of the Act and these rules at least once in every 12 months.
Rule 29. Penalty.
Any person who contravenes any provision of these rules shall be punishable with fine which may extend to one thousand rupees.
15. A perusal of the aforesaid Sections of Act No. LII of 1975 and Rules, 1976 project that the petrol or other fuel is to be checked by the Inspector or any other person authorised in this behalf by the Government. Thus neither the complainant could lodge the First Information Report before the police nor the police could take cognizance of the allegation/complaint. Only the Inspector or any other authorized person could check/measure the petrol/fuel pump of the writ rvtitinnpr The insnectnr cmild file corrmlaint before the learned Area Magistrate.
16. At this stage it is proper to refer to the maxim: "A communi observatia non est recedendum" where a thing was provided to be done in that manner and if not so done, the same would not be lawful. The important reasoning to be mentioned in the matter is that the power and authority to set the law' in motion is linked with the substantive jurisdiction without which the proceedings cannot be initiated and consequently processed with. The watertight compartments of jurisdiction have to play the vital legal role and as expressed and held above the Police could not proceed against the writ petitioner and his co-accused in view of the aforesaid Special Codification which has preference over the general law. Further Section 5(2) of the Code of .Criminal Procedure is also applicable being clear on the legal proposition that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regarding the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences.
17. Consequently I hold that the Police Station, Choochak had no authority and jurisdiction to register the case regarding the alleged less measuring of the diesel. Rather, as held above, the Police Officers of all ranks cannot check and raid any petrol Pump/Diesel Pump with respect to the measuring of the same.
18. The contention of the learned Assistant Advocate General is that due to submission of challan the application under Section 249-A of the Code of Criminal Procedure is maintainable and this writ petition should have not been processed with so as to be disposed of on merits. I do not give weight to this assertion on the ground that, as held above, the First Information Report could not be registered by the Police at the instance of Riaz Ahmad complainant as the complaint could only be lodged by the competent Inspector or ether authorized person under the Punjab Weights and Measures (International System) Enforcement Act, 1975 under Section 27 of the said Act, 1975 before the Area Magistrate 1st Class.
19. I, therefore, accept this writ petition and quash FIR No. 169 registered Constitution of Pakistan, 1973- -Art. 199-Grievance, redressal of-Petitioner should move an application before trial Court at first instance for redress of his grievance-Application, if.Moved, shall be decided with notice to other side within two weeks-.
(Para 1)
For the Petitioners: Syed Ehtesham Qadir Shah,j Advocate.
For the Complainant/Respondent No. 2: Ch. Ghulam Hussain, Advocate.
Date of hearing: lst February, 1999.
After hearing both the sides at length, it is directed that the petitioner should move an application before the trial Court at the first instance for redress of his grievance. The application, if moved, shall be decided with notice to the other side within two weeks. Petition is disposed of.