1. ' This appeal is directed against the judgment, dated 19-3-1994 passed by the learned Sessions Judge, Khushab whereby he accepted the appeal of the respondent and set aside the conviction recorded by the ADC/Magistrate 1st Class, Khushab vide order, dated 2-12-1993 and acquitted the respondent from the charge.
2. The brief facts of the case are that Market Committee, Jauharabad filed a complaint against Kohinoor Sugar Mills, Jauharabad under rule 36/75 of the Punjab Agricultural Produce Markets Committee (General) Rules, 1979, on the ground that the management of Kohinoor Sugar Mills purchased sugarcane from outside the notified area of the Market Committee, Jauharabad but prepared sugar and derived molasses from the sugarcane juice in the factory situated within the jurisdiction limits of the complainant, but does not pay the Market Committee fee. On recording preliminary/summary evidence of the complainant, the respondent was summoned and charged under the abovementioned rules. The allegation was denied by the representative of the respondent and claimed the trial.
2. ' During the trial, the complainant examined Jahan Khan, Secretary of Market Committee, Jauharabad in support of the allegations who stated that the respondent Kohinoor Sugar Mills, Jauharabad was licensee of the complainant. The management was dealing in business of manufacturing of sugar and molasses, etc. At Jauharabad. The factory falls within the jurisdiction/limits of Market Committee, Jauharabad. The Market Committee fee is leviable on sugarcane, sugar and molasses. The respondent pays the Market fee on the sugarcane which is purchased by the respondent from the notified area of the Market Committee but does not pay the said fee on the sugar and molasses prepared from the sugarcane purchased from outside the notified area which the respondent was liable to pay. It was further alleged that the respondent had deliberately declined to pay the same without any plausible excuse while all the other sugar mills were paying the market fee on the by-products of sugarcane to the concerned Market Committees.
3. ' The representative of the respondent was examined under section 342, Cr.P.C. Wherein he denied the allegations levelled against the respondent and stated that the complainant was false and designed to pressurise the accused mills for dual fee. Mumtaz Khan, Labour Officer of the Mill was examined in defence who stated that the Market Committee fee on the sugarcane was duly paid to the complainant on the sugarcane purchased from the notified area. Similarly the Market Committee fee was also paid to the other Market Committees wherefrom sugarcane was purchased. He, however, admitted in cross-examination that they do not pay market fee on sugar molasses.
4. ' After considering the evidence produced by both the parties the learned trial Court held the respondent quality and concluded that the respondent was liable to pay the Market Committee fee who violated the relevant provisions of law, and convicted the representative of the respondent vide judgment which was impugned before the learned lower Appellate Court. The learned lower appellate Court accepted the appeal and set aside the order of the Trial Court by placing reliance on Bawany Sugar Mills Ltd. v. Market Committee, Badin and another (PLD 1983 Karachi 1), holding that the levy of Market Committee fee on the sugarcane purchased from outside the notified area the respondent was not liable to pay the same again to the complainant as it amounts to double taxation and acquitted the respondent vide impugned judgment.
5. ' The learned counsel for the appellant has referred to section 19 of the Punjab Agricultural Produce Markets Ordinance 1978, to contend that' Market Committee is empowered to levy the fee on the agricultural produce bought or sold by or through a dealer in the notified market area and the same is also leviable on the by-products. Reliance is also placed on rule 36 of the Punjab Agricultural Produce Market (General) Rules, 1979 and has argued that market committee fee is leviable when agricultural produce is bought or sold by the licensee. Since the respondent is a licensee, therefore, the fee is to be imposed on the respondent, unless the exemption is granted under the law. Rule 37 deals with the exemption from the payment of fees wherein it is mentioned that if a fee is leviable on sale or purchase of any quantity of agricultural produce in a notified Market area and once the provisions of rule 36(1) are complied with then on subsequent sale or purchase in the same notified area the agricultural produce manufactured or extracted from the agricultural produce in respect of which the fee has already been paid will be chargeable. It has also been argued that the case law relied upon by the learned lower appellate Court is not applicable to the facts and circumstances of the case as it only deals with the purchase and sale of the byproducts in the notified area.
6. ' The learned counsel for the appellant has placed reliance on PLD 1976 Lah. 1334 (Hyesons Sugar Mills Ltd. Karachi v. Market Committee, Khanpur and another) PLD 1976 Lah. 1089 (Rafhan Maize Proudcts Co. Ltd. Lyallpur v. Market Committee, Lyallpur and two others) PLD 1989 SC 449 (Noor Sugar Mills Ltd. v. Market Committee and others) and 1991 SCMR 94 (Mian Rashid Ahmad v. Syed Azeem Shah and another).
7. ' The learned counsel appearing for the respondent has raised certain objections to the maintainability of the present appeal and has argued that under section 417(2) the appeal against the order of acquittal can only be filed if the impugned order has been passed by the trial Court. In the present case, the appellate Court has passed the acquittal order and the same cannot be challenged in High Court by relying on 1988 PCr.LJ 1628 (Sardar Muhammad v. Muhammad Siddiq, etc.). It is further argued that after the amendment in law the right of appeal has been given to the complainant but that appeal could only have been filed within 30 days. But in the present case, the appeal was filed by the complainant after 48 days which is time-barred and there is no justification for the condonation of the delay.
8. ' On merits it has been maintained that the sugarcane purchased by the respondent from outside the notified area, the Market Committee fee is paid to the respective Market Committee wherefrom the produce is purchased and no fees is leviable on bye products as it amounts to double taxation and the learned lower appellate Court has rightly held so as section 19(c) of the Ordinance exempted the payment of fee on subsequent transaction.
9. ' I have considered the arguments of the learned counsel for the parties and perused the record.
10. Firstly, I shall deal with the question of maintainability. No doubt it is only an acquittal order recorded by the trial Court in a complaint case which can be challenged before High Court through petition under section 417(2), Cr.P.C. As it was held so in Sardar Muhammad v. Muhammad Siddiq etc. 1988 PCr.LJ 1628 and against order of acquittal by the appellate Court State has to file an appeal under direction of the Government through public prosecutor under section 417(1), Cr.P.C.
11. Right of appeal to the complainant has been conferred by adding provision 2(a) to section 417, Cr.P.C. But the same proviso was added after the filing of the instant P.S.L.A./Appeal, which otherwise could have been filed within 30 days of the impugned order. But the appeal cannot be thrown away mere on technicalities as there is not only question of the conviction or otherwise of the appellant but an important question regarding fiscal matter is involved which has to be decided for future also. So, in these circumstances I treat this appeal as a revision under section 439, Cr.P.C. Read with section 423, Cr.P.C. Since no limitation is provided for revision so that objection of the learned counsel also goes.
12. ' Section 19 of the Punjab Agricultural Produce Markets Ordinance, 1978 provides levy of the Market Committee fee which is reproduced as under:--- "19. Levy of fees.---A market committee may, subject to such rules as may be made by Government in this behalf, levy fees, not exceeding the maximum rates prescribed, on the agricultural produce bought or sold by or through a dealer in the notified market area: ' Provided that:
(a) xxxxxxxx
(b) xxxxxxxx
(c) no fee shall be leviable in respect of any subsequent transaction of sale or purchase within the same notified area of an agricultural produce extracted after being subjected to manufacturing or processing.
13. ' Rule 36 of the Punjab Agricultural Produce Markets (General) Rules, 1979, enables the Market Committee to recover the levied fee and rule 37 of the same deals with certain exemptions.
14. ' From the perusal of the section 19 and the rules 36 and 37, it clearly shows that the Market Committee is competent to levy the fee on the purchase and sale of sugarcane or its bye products within the jurisdiction/limits of the Market Committee. The contention of the learned counsel for the respondent that the respondent has already paid fee to the concerned Market Committee wherefrom the sugarcane was purchased, is not relevant to the present case. If Market Committee fee is paid on sugarcane when the same is purchased within the notified area of that particular committee only then the bye products are exempted from the levy of the fee. The payment of the Market Committee fee on the sugarcane purchased from out of the notified area is not relevant for the levy of the Market Committee fee on the manufactured goods if those are assessable to the Market Committee fee within the jurisdiction/limits of the concerned Market Committee. Judgment of the learned trial Court to the extent of levy and recovery of the Market Committee fee from the respondent and imposition of fine in default thereof is correct as the complainant was justified to recover the same from the respondent if the same has not been paid by the respondents on the sugarcane purchased from outside ;.He notified area but in violation of rule 36 under rule 75 only the fine can be imposed by the trial Court and no punishment can he awarded as it was a company who violated rule and not the representative himself. The imposition of the fine was justified and the case law relied upon by the learned lower appellate Court for setting aside the order of conviction passed by the trial Court is not maintainable as the case law was not applicable to the circumstances of the case. It only deals with the purchase of the Agricultural produce within the notified area and the rules 36 and 37 are consistent in section 19 as the Market Committee is competent to impose the fee on the goods manufactured within its jurisdiction/limits from the produce purchased from outside the notified area and for which no fee has been paid to the Market Committee where the mill of the respondent is situated.
15. ' Resultantly the appeal is allowed to the extent that the complainant is competent to levy the Market Committee fee on the goods manufactured by the respondent within the jurisdiction/limits of that market committee. However, the sentence awared to the representative of the respondent Company by the trial Court was not maintainable as the representative personally could not be held guilty of the offence or violation of the rules. Rule 75 provides only fine and not sentence. The complainant Market Committee is at liberty to recover the Market Committee fee so far has not been paid by the respondent after assessing the same under the law and also can recover the same in future under the relevant law.