' Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for a declaration to the effect that case No, 448 of 2000 is illegal, without jurisdiction and Without lawful authority having no effect whatsoever on the rights of the petitioner and consequently the sealing of the business premises of the petitioner is liable to be desealed and opened for business purposes.
2. The facts leading to this petition are that the petitioner is a businessman and doing the business of purifying the dirty black oil and then supplying the same to Hakim Lubricants (Pvt.) Ltd.; registered by the Ministry of Petroleum and Natural Resources, Islamabad and that during the night between 25th/26th August, 2000, S.H.O./respondent No,3 alongwith some constables raided the godown of the petitioner situated at Mauza Dera Budhu, Muzaffargarh Road near Chowk Bypass Road, Multan and forcibly broke the locks of the gate and when Chowkidar was awakened, he was threatened and directed to run away. The S.II.O., took these locks alongwith him and also deputed two constables instead of watchman of the petitioner. He also sent a message to the petitioner at his home that the petitioner should see S.H.O. This is why on the next morning the petitioner alongwith Rehman Anjum Sheikh son of Wali Muhammad and Sh. Sabir Ali son of Muhammad Ali went to police station and showed him the Writ Petition No,3381 of 2000 alongwith order of this Honourable Court, dated 12-4-2000 as well as authority letter issued by Hakim Lubricants (Pvt.) Ltd., dated 1-7-2000 but neither the order of this Honourable Court was accepted nor the version of the petitioner was considered. Neither the locks were returned nor the police constable deputed on the business premises of the petitioner removed. This is why the petitioner moved an application to the City. Magistrate who forwarded the same to S.P. (City) for legal action. Instead of taking action against S.H.O. By the concerned authorities a case F.I.R. No,448 of 2000 has been registered by S.H.O. Police Station, Muzaffargarh on 27-8-2000 against the petitioner, his minor son Muhammad Umair aged about 5 years and two other persons who are labourers namely Muhammad Younis and Awnar alias Goonga. After calling the petitioner in police station premises on the night between 26th/27th August, 2000 early in the morning the petitioner's arrest was shown in this case where from he got him released on the order of the learned Magistrate. The petitioner has got no other efficacious and speedy remedy except to invoke the Constitutional jurisdiction of this Honourable Court as case of F.I.R. No, 448 of 2000 is based on mala tide and has been cooked up against the petitioner with an ulterior motive.
3. Learned counsel for the petitioner urged that the prohibitory order under section 144, Cr.P.C.
Imposed by District Magistrate on 25-7-2000 for two months prohibiting the manufacturing substandard lubricating oil and other petroleum products under fake mark of renowned firms by the unauthorized persons and thereafter registering of F.I.R. No, 448 of 2000 dated 27-8-2000 on the complaint of Mr. Mahmood Javed Bhatti, Magistrate 1st Class (respondent No,2) is not warranted.
4. Learned counsel for the petitioner has relied upon Ghulam Rasool and 3 others v. The State 1998 PCr.LJ 584 (Karachi).
5. On the other hand learned counsel for the respondents has taken the stand that the manufacturing of substandard lubricating oil and other petroleum products under fake-mark of famous firms by the unauthorized persons and its subsequent sealing and sale in the market is at rampant which is causing unsustainable loss to the valuable vehicles and machinery of the general public; thus, creating disturbance in public peace and tranquillity and that for the prevention of this menace order under section 144, Cr.P.C. Was issued by the D.M./respondent No,1 vide No,2135-D/GB, dated 25-7-2000 and that in compliance with the above directions Mr. Javed Bhatti, then Ilaqa Magistrate Police Station Mumtazabad raided the godown of the petitioner alongwith local police where substandard lubricating oil was manufactured by the petitioner at large quantity. Petitioner confessed that crude/Kala oil was converted into LDO and sold in the market and that all the material/premises were taken into custody/sealed; sample sent to the Office Incharge RDIP at Multan who after analysis declared that it does not meet the category of lubricating oil and was mixture of diesel and rubber vide his Report No,HDIP/PTCM/809/2000, dated 7-12-2000 and case F.I.R. No,448 of 2000 under section 188, P,P.C. Was registered at Police Station, Mumtazabad on 27-8-2000 but lodging of written complaint under section 195, Cr.P.C. By respondent No,2 missed/delayed due to late receipt of test report and transfer of respondent No,2 meanwhile and that in the light of negative report of Hydrocarbon Development Institute of Pakistan, Petroleum Testing Centre, Multan the action taken against the petitioner is legal and lawful and deserves full punishment in order to curb the tendency of manufacturing substandard lubricants etc., in every day life and becoming cause of nuisance to public peace and tranquillity.
6. I have given due consideration to the valuable arguments on both sides.
7. The contents of the impugned Order No,2135-D/GB, dated 25-7-2000 passed by the District Magistrate, Multan are as under:- ' "Office of the District Magistrate, Multan
' Whereas, it has been brought to my notice that there are general complaints of manufacturing substandard lubricating oil and other petroleum products under fake-mark of renowned firms by the unauthorised persons and subsequently its sealing and sale in the market which causes to sustain irreparable loss to the valuable vehicles and machinery of the general public and hence creating disturbance of public peace and tranquillity.
' And whereas, in my opinion, immediate prevention is desirable and there are sufficient grounds for proceeding under section 144, Cr.P.C., 1898 and the directions hereinafter appearing are necessary in order to prevent disturbance of public peace and tranquillity.
' Now therefore, I, Maj. (R) Shakeel Ahmad, District Magistrate, Multan in exercise of the powers vested in me under section 144, Cr.P.C., 1898 do hereby prohibit unauthorized manufacturing sealing and sale of lubricating oil and petroleum products under fake-mark of renowned firms, within the revenue limits of Multan District.
' This order shall take effect from the date of its issue and shall remain in force for a period of two months within the revenue limits of Multan District.
' Notwithstanding the expiry of this order everything done, action taken, obligation, liability, penalty or punishment incurred investigation, enquiry or proceedings pending jurisdiction or powers conferred shall be valid and continued to be, valid and fresh proceedings against offenders in the Courts of Magistrate having 1st Class Powers under the Criminal Procedure Code, 1898 and their punishment in respect of the offences committed during the enforcement of this order shall be continued or launched as if this order had not expired.
' This order shall be given wide publicity in Multan District through Press, by publication in the official Gazette and affixing copies thereof on the notice hoards of various Government Offices, Union Councils, Market Committees Municipal Committees/Town Committees, Police Station and other public places in the District.
' Given under my hand and seal of the Court this 25th day of July, 2000.
(Sd.) District Magistrate, Multan."
8. In such a case, the special law on the point is contained in section 23 of the Petroleum Act, 1934 and Rules 43 and 44 of the Pakistan Petroleum. (Refining, Blending and Marketing) Rules, 1971 which read as under:-- "23. General penalty for offences tinder this Act.--- (1) Whoever---
(a) in contravention of any of the provisions of Chapter I or of any of the rules made thereunder, imports, transports, stores, products, refines or blends any petroleum, or
(b) contravenes any rule made under section 4 or section 5, or
(c) being the holder of a licence issued under section 4 or a person for the time being placed by the holder of such licence in control or incharge of any place where petroleum is being imported or stored, or is under transport, contravenes any condition of such licence or suffers any condition of such licence to be contravened, or
(d) being for the time being in Court of incharge of any place where petroleum is being imported, stored, produced, refined or blended or is under transport refuses or neglects to show to any officer authorised under section 13 any receptacle, plant or appliance used in such place in connection with petroleum, or in any way obstructs or fails to render reasonable assistance to such officer during an inspection, or
(e) being for the time being in control or incharge of any place where petroleum is being imported, transported, stored, produced, refined or blended, refuses or neglects to show to any officer authorised under section 14 any petroleum in such place, or to give him such assistance as he may require for the inspection of such petroleum, or refuses to allow him to take samples of the petroleum, or
(f) being required, under section 27, to give information of an accident fails to give such information as so required by that section, shall be punishable with fine which may extend to five hundred rupees.
(2) If any person having been convicted of any offence punishable under subsection (1), is again guilty of any offence punishable under that subsection, he shall be punishable for every such subsequent offence with fine which may extend to two thousand rupees.
' Rule 43. Adulteration prohibited.--- (1) No person shall sell, dispose of or market any petroleum product adulterated with any other petroleum product or with any unauthorised substance in any area throughout Pakistan.
(2) The Authority may, from time to time, notify necessary measures such as sealing of storage tanks of use of dyes or prescribe any other procedure necessary to prevent the adulteration of petroleum products.
(3) The Authority, may, by an order in writing, direct any person or its dealer or agent to comply with the requirements of the provisions of sub-rule (2).
' Rule 43-A. Certain powers of Authority exercisable by the Deputy Commissioner.--- In rules 34, 35, 36, 38 and 43, reference to ' Authority' includes a reference to the Deputy Commissioner' of the District in, or in relation to which any power of function is to be exercised or performed by the Authority.
Rule 44. Penalty for breach of Rules.--- Any person who contravenes the provisions of these rules shall, without prejudice to any other action that may be taken under these rules in relation to the contravention, be punishable for every breach with imprisonment for a term which may extend to three years, or with fine or with both."
9. Even otherwise under section 195(1)(a), Cr.P.C. Any offence punishable under sections 172 to 188 of the Pakistan Penal Code can only be registered on the complaint in writing of the public servant concerned, who has imposed the prohibitory order under section 144, Cr.P.C. Or of some other public servant to whom he is subordinate meaning thereby that respondent No,1 himself can get a case registered or any other public servant who is superior to him but as far as respondent No,2 is concerned, he being a subordinate to the District Magistrate is not at all clothed with powers to get a case registered. In this way the very registration of case is withoiut jurisdiction and without lawful authority.
10. In the case of Ghulam Rasool and 3 others v. The State 1998 PCr.LJ 584 (Karachi), it was observed by my learned brother Muhammad Roshan Essani, J. Of the Karachi Bench of the Sindh High Court that in case of violation of an order passed by District Magistrate, within the meaning of section 144, Cr.P.C. The machinery of law can only be moved by filing complaint by order of such public servant who promulgated real order or by his superior as envisaged under section 195(1)(a), Cr.P.C.v In the present case, there ought to have been a complaint as envisaged under section 4(h), Cr.P.C. By the District Magistrate, Tharparkar himself or by his superior i.e, Home Secretary and under no circumstances, supervising Tapedar at the dictates of Mukhtiarkar who is subordinate to District Magistrate could file F.I.R. Further sealing of the petitioner's business premises amounts to restricting his business. Article 18 of the Constitution says:---
18. Freedom of trade, business or profession.--- Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade or business: ' Provided that nothing in, this Article shall prevent---
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
The police authorities as well as the public funtionaries are under obligation to protect the rights of the citizens of the State and to implement and comply with the Constitutional provisions. The very violation of the Constitution is very much dangerous. The petitioner has got an authority letter from Messrs Hakim Lubricants (Pvt.) Ltd. For doing the business and Messrs Hakim Lubricants (Pvt.) Ltd.
Has been authorised to do business by the Ministry of Petroleum and Natural Resources, Islamabad. Therefore, even the order of the District Magistrate for imposition of section 144, Cr.P.C.
Is not applicable especially in the case of the petitioner. The mala fides of the police is apparent on the face of the case of F.I.R. As one Muhammad Umair son of the petitioner aged 5 years has also been mentioned as an accused.
11. For the above reasons when the law provides by a Special Act action against any violation of any provision of the Special Act, such an action could only be taken under the Special Act and not under the general provisions of law. As such, the petition is allowed. However, the respondents may proceed against the petitioner in accordance with law..