' The petitioner seeks abashment of F.I.R. No,321, dated 24-6-1994 under sections 264, 265 and 420, P.P.C. Registered at Police Station City Burewala invoking Constitutional jurisdiction of this Court under Article 199 of the Constitution.
2. Briefly stated the background of the case is that the petitioner is the proprietor of Rahi Filling Station, Chichawatni Road, Burewala where he has been operating a Gas Station without any complaint and in the mid of June Mr. Muhammad Ayub, City Magistrate, Burewala - respondent No,1 allegedly demanded Rs,5,000 (Rupees five thousand only) from him claiming that he had also collected similar amount from others as he had to accumulate Rs,60,000 for repair of his car and the fixation of air-conditioner therein and the petitioner however, politely declined regretting his inability on account of financial constraints. On 23-6-1994 the said Magistrate along with heavy police contingent raided the Gas Station of the petitioner dramatized that the petitioner was bungling in the sale of petrol. The Magistrate has brought with him a container proclaiming the same to be of a liter and after drawing petrol from the pump claimed that the pump contained a wrong instrument as the petrol ran short by one point in a liter. Thereafter, the Magistrate through a written complaint lodged got F.I.R. No,321 registered against the petitioner at police station under section 264/265/420, P.P.C. At Police Station City Burewala.
3. The petitioner has assailed the raid conducted by the Magistrate and the F.I.R. Got registered by the Magistrate against the petitioner on the ground that the petitioner is the authorized dealer of the Pakistan State Oil who has installed the petrol pump after obtaining the requisite license from the competent Authority and that it is annually checked by the Labor Officer who has affixed his seal thereon and issued certificate in affirmation of correctness of measuring instrument and that such certificate was issued bearing No,8187/2, dated 10-8-1993 certifying that the apparatus of petrol pump was in accordance with the prescribed measurement and that there does not arise any question of any undercut sale by the petitioner of the petrol from the said petrol pump. It is also urged that the Magistrate has no jurisdiction to enter, inspect or draw sample from Gas Station of the petitioner which was regulated by the Petroleum Rules, 1971 Part V covering Rules 34 and 35 and Part VI covering Rules 36 to 38 which contain the authority responsible for inspection and also postulate the procedure of sampling etc. And that the subject of measurement was covered by the Punjab Weights and Measures (International System) Enforcement Act, 1975 (Punjab Act LII of 1975) and that the entire proceedings have been conducted by statutory functionary having absolutely no lawful authority to demand illegal gratification from the petitioner and on refusal to take the impugned action.
4. Notice was given to the respondents and respondent No,3 has filed paradise comments in which it is stated that the question of bribe was not in the knowledge of respondent No,3 and that he was competent to authorize respondent No,1 to take sample and that action has been taken under section 8 of the Punjab Weights and Measures (International System) Enforcement Act, 1975 (Punjab Act LII of 1975) and Petroleum Rules, 1971 and Magistrate was competent to take cognizance under section 64, Cr.P.C.
5. Arguments have been heard at some length.
6. For the quashment of an F.I.R. It is to be seen:--
(1) Whether the F.I.R. Was lodged within lawful authority?
(2) Whether the F.I.R. Was lodged mala fide?
7. In order to see as to whether the Magistrate had no jurisdiction reference to Rule 34 to Rule 38 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 is relevant. These Rules were framed by the Federal Government in exercise of powers conferred by section 2 of the Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act, 1948 (XXXIV of 1948), read with section 3 thereof. The same are reproduced as under:-- "34. Entry, Inspection and Enforcement of the Rules.--- Any person authorized in writing by the authority in this behalf may:--
(a) make such examination or inquiry as he considers necessary for ensuring that the provisions of these rules or of any order made thereunder are being fully observed by a refinery, a blending plant or a marketing company: and
(b) with such assistance, if any, as he considers necessary, enter, inspect and examine any refinery, blending plant, marketing company, installation, storage or depot or any part thereof at any reasonable time by day or by night but not so as to unreasonably impede or obstruct the working of the refinery, blending, plant, marketing company, installation, storage or depot.
35. Facilities to the inspecting officer.--- The owner, manager, proprietor or other person in charge of a refinery, blending plant, marketing company, installation, storage or depot shall afford the person authorized by the authority under Rule 34 all reasonable facility for making an examination, inquiry, inspection or measuring for taking any samples.
Part VI Testing of petroleum products
36. Authority may take sample.--- Any officer authorized by the Authority in this behalf may take sample of a petroleum product from a refinery, blending plant, marketing company, installation, storage depot or distribution outlet.
37. Samples to be tested according to standard procedures.--- All samples shall be collected and tested in accordance with the American Standard of Testing Materials procedures or, in the absence of such procedures, with the appropriate Institute of Petroleum (U.K.) procedures.
38. Procedure of Sampling and testing.--- (1) An officer taking samples of a petroleum product under these Rules shall take the samples of the product in two separate containers in the presence of the person from whose possession the samples are taken (hereinafter referred to as the owner) and shall seal the containers with his own seal and also allow the owner to put his seal to the containers, if he so desires.
(2) The officer shall retain one of the containers with himself, and forward the second for testing and report to one of the laboratories approved for the purpose by the Authority.
(3) If the owner disputes the correctness of the report of the laboratory to whom a sample was forwarded for testing under sub-rule (2) the officer shall forward the container retained by him under that sub-rule to one of the other laboratories approved for the purpose by the Authority for testing and report.
(4) The report of the laboratory by whom a test is conducted under sub-rule (3) shall be final and shall not be called in question.
(5) All samples taken under this rule shall be tested within the time within which the quality of the product concerned is not likely to undergo any change."
8. The bare reading of the above rules shows that the Inspection can be done by any person authorised in writing by the authority and sample of petroleum product from installation can be taken by any officer authorised by the authority.
9. The word "authority" has been defined in Rule 2(b) of the said rules as under:-- "2. Definitions.--- In these rules unless there is anything repugnant in the subject or context,-- (a)
(b) ' Authority' means any officer appointed by the Central Government to exercise the powers and perform the functions of the Authority under these rules."
10. In exercise of powers conferred by Rule 2(b) (supra) of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971, the Central Government was pleased to authorize with immediate effect, the Direct& Oil Operation, Federal Resources Division, Ministry of Industries and Federal Resources to exercise the owners of the authority under the aforesaid rules which were published in Gazette of Pakistan Extra on 1-10-1971. Section 43-A was also added on 1-10-1971 which reads as under:-- "43-A. Certain powers of authority exercisable by the Deputy Commissioner.--- In Rules 34, 35, 36 and 43 reference to 'Authority' includes a reference to the ' Deputy Commissioner' of the District in, or in relation to which any power or function is to be exercised or performed by the Authority."
11. In the year 1982 vide SRO No,169(1)/82, dated 11-2-1982 (published in the Gazette of Pakistan Extra Part II), dated 24-2-1982 the following further amendment was made in the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971, namely,--
(b) "Authority means "the Director-General Oil."
12. The result is that the amendment made on 1-10-1971 referred, to above in the shape of Rule 43-A has become redundant. On the other hand also where power was conferred only on one person that person could not transfer it to an other person and if he does so such act would be ultra vires for having been done by' wrong person and same would amount to usurpation of power and, thus, a nullity in the eye of law.
13. Thus, inspection and testing of petroleum is in respect of refilling, blending, marketing installation storage or distribution outlet, or adulteration. The penalty is provided in Rule 44 for every breach with imprisonment for a term which may extend to three years or with fine or with both.
14. The case has been registered against the petitioner under sections 264, 265 and 420, P.P.C. The said sections read as under:- "264. Fraudulent use of false instrument for weighing.--- Whoever fraudulently uses any instrument for weighing which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
265. Fraudulent use of false instrument for Measure.--- Whoever fraudulently uses any false weight or false measure of length or capacity, or fraudulently uses any weight or any measure of length or capacity as a different weight or measure from what it is, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or with both.
420. Cheating and dishonestly including delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine."
15. In order to bring a conviction under sections 264, 265 or 420, P.P.C. The complainant should be the purchaser or the person cheated, person other than one who is actually defrauded cannot make a complaint. Where the complaint of cheating several debtors of bank by the accused was made to the Court not by the person created but by the Executive Officer of the Bank, it was held that the case against the accused must fail PLD 1960 Dacca 897. Now it is to be seen as to whether section 8 of the Punjab Weights and Measures (International System) Enforcement Act, 1975 (LII of 1975) authorizes a Deputy Commissioner to himself inspector to further appoint a Magistrate to inspect and verify weights and measures. Section 8 reads as under:-- Section 8. Power to inspect and verify weights and measures.--- An Inspectormay, at all reasonable times, inspect and verify 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 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 trader 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 under subsection (1) the Inspector may verify the weight or measure of any article sold or delivered in the course of any transaction or trade or commerce.
(3) Where any weight, measure, weighing instrument or measuring instrument inspected and verified under subsection (1) is not found to be what it purports to be, the Inspector may seize or detain the same against a receipt.
16. The authority given by the above said section is to an Inspector. Now the question is as to who is an Inspector. Section 2(1)(f) of the Punjab Weights and Measures (International System)
Enforcement Act, 1975 (Punjab Act LII of 1975) defines the word "Inspector" as under:-- "2(1)(f) 'Inspector' means an Inspector including Assistant Inspector appointed under this Act."
17. Section 31 of the said Act deals with the delegation of powers. It reads as under:--
31. Delegation of powers.--- Government may, by notification in the official Gazette, direct that any power exercisable by it under this Act or the rules made thereunder shall, in relation to such matters and subject to such conditions, as may be specified in the direction, be exercisable also by such officer or authority subordinate to the Government as may be specified in the notification."
18. Arguments of the learned Law Officer that section 8 does not debar the Magistrate to inspect and verify weight and measure is not valid because when the law defines any power and also the manner in which and the person by whom it is to be exercised then only that person in that manner is authorized to exercise it.
19. The Honorable Division Bench of this Court comprising of their Lordships the Honourable Mr. Justice Muhammad Arif (now by the grace of God the Honorable Judge of the Supreme Court and Honorable Mr. Justice Mian Allah Nawaz in a case where the validity/propriety of the order of Senior Member of Federal Land Commissioner was called in question in the Constitution petition on the question of nullity of an act, has observed as under:-- "It is hardly necessary to be stated that our Government is a Government of Laws. The functionaries of the State/Administrative agencies derive their powers from the Constitution and laws of land.
They are required to exercise their powers in a given case after taking into consideration the relevant facts and circumstances of the case within the delimited area of their authority. In doing so they are bound to decide the matters by independent application of mind free from extraneous influences/dictation from outside agencies, howsoever high they may be. Reference be made to A.W. Malik v. The Authorized Officer, Dacca Improvement Trust and others PLD 1970 Dacca 178, Riaz Ahmad v. Secretary (Information Culture and Tourism Department) Government of Punjab and 3 others PLD 1977 Lah. 307, Muhammad Yousuf v. Province of Sindh and 2 others PLD 1976 Kar.
1219.
' This being the legal position, we have no doubt in our mind that the Deputy Land Commissioner, while passing the order, dated 13-6-1975 did not apply his mind to the facts and circumstances of this case, and merely concurred with the report of the Assistant Land Commissioner. It is, thus, clear to us that the order of the Deputy Land Commissioner, dated 13-6-1975 is destitute of legal authority and cannot be sustained. Since .This order is void order, the subsequent orders of Land Commissioner and Additional Chief Land Commissioner are, therefore, a mere superstructure on void order and cannot be legally maintained.
' It is well-known rule that where a power is conferred on one person then that person cannot transfer its exercise to another person. Thus, an act may be ultra vires because it is done by the wrong person. Reference be made to a passage on the doctrine of substantive ultra vires by introduction to Administrative Law by David Foulkes, Fourth Edition-- ' An act may be ultra vires because it is done by the wrong person. This raises particularly the problem of delegation of functions. Where a power is conferred on a person then the general rule is that he cannot transfer its exercise to another person -- delegates non-protest delegate. In Allingham v. Minister of Agriculture and Fisheries (1947) 1 All ER 780, the Minister had by regulations lawfully delegated to a County War Agricultural Committee his powers to give directions concerning the use for agricultural purpose of land specified in the notice of direction. The committee decided that eight acres of sugar beet should be grown by the occupier of certain land but left it to its executive officer to select the acres to which the direction would apply. The officer consulted a Local Sub-Committee appointed to make recommendations to the committee; acting on its advice he served a notice on the occupier specifying the acres. The notice was held to be invalid as the committee had left to the officer the duty of deciding something they had to decide for themselves.
' Of course, where the delegate is expressly empowered by statute to sub-delegate, then no objection can be made. Section 101 of the Local Government Act, 1972 gives a wide power to local authorities to make what are popularly called ' agency arrangements' (though the section does not use the word agent or delegate). By it a local authority may ' arrange for the discharge of any of their functions (a) by a committee, a sub-committee or an officer of the authority; or (b) by any other local authority'.
' Judged from this angle it is clear that the Deputy Land Commissioner had no authority to depute the Assistant Land Commissioner to make enquiry and report. Similarly, he failed to perform his functions in proceeding with the acceptance of the Assistant Land Commissioner. We are clear in our mind that the order of Deputy Land Commissioner, dated 13-6-1975 cannot be sustained.
' It is settled law that where an inferior Tribunal/Court, Administrative Agency has acted wholly without jurisdiction, that such action amounts to usurpation of power and such action amounts to usurpation of power as such act is a nullity. Reference be made to rule laid down in Raunaq Ali v.
Chief Settlement Commissioner PLD 1973 SC 236. It was held therein-- 'This is no doubt correct, but is also now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his book on 'jurisdiction and illegality'., taken any action 'beyond the sphere allotted to the Tribunal by law and, therefore, outside the area within which the law recognizes a privilege of power unwarranted by law' and such an act is nullity; that is to say, 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well-established that a superior Court is not bound to give effect to it, particularly when the appeal is.To be latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful' Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208, Mst. Amina Begum v. Deputy Settlement Commissioner, Circle I, Lahore and 3 others PLD 1980 Lah. 571 and Mazhar Hussain Khan and another v.
Government of West Pakistan and 5 others 1983 SCMR 40."
20. In the present case the authority has vested with the Inspector and not with the Deputy Commissioner or the Magistrate. No notification published in the official Gazette has been shown to this Court regarding delegation of any such powers by the Government to the Deputy Commissioner or the Magistrate as such action' of both the respondents is held illegal and without lawful authority and the F.I.R. Lodged by the respondent Magistrate is also without any lawful basis, as such the same is an abuse of the process of law and also abuse of process of Court. The petitioner has been unnecessarily dragged for the last four years. The writ petition is, therefore, allowed and the impugned F.I.R. Is hereby quashed.
21. No order is made as to costs as art important question of law was also involved.
F.I.R. Quashed.