Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD ASLAM VS Respondent: S.H.O., POLICE STATION CHOOCHAK, DISTRICT OKARA
Court Name: Lahore High Court Judge(s): Ch. Muhammad Nasim Title: MUHAMMAD ASLAM vs S.H.O., POLICE STATION CHOOCHAK, DISTRICT OKARA Case No.: Writ Petition No,15532 of 1995 Date of Judgment:1998-07-09 Reported As: 1999 P Cr. L J 713 Result: Order accordingly
JUDGMENT
JUDGMENT ' This is a petition filed 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 abashment of First Information Report No,169 registered on 7-6-1995 at Police Station Choochak, District Okara under section 420, Pakistan Penal Code and under section 3 of the Price Control and Prevention of Profiteering and Holding Act, 1977 (Act No,XXIX of 1977) (hereinafter called as the Act of 1977 for brevity sake). 2. Riaz Ahmad complainant/respondent No,3 got recorded in the aforesaid F.I.R. No,160 of 1995 that he was a resident of Chak No,28/GD, District Okara and a Zimindar by profession. On 7-6-1995 he along with his real brother. Muhammad Zaman went to the petrol pump owned by Muhammad Aslam on 7-6-1995 on his Tractor No,2321/0KB. He obtained 31 liters diesel in the tank of the tractor and got filled the diesel in the drum which according to the salesman of the petrol pump was 226 liters. The voucher for Rs,1,607 as the price of 31 liters plus 226 liters i,e, total 257 liters was handed over to him which was signed by Muhammad Shafique. He told the said salesman that 214 liters of diesel filled the drum and that his meter was not correctly running as 226 liters were shown to have been put in the drum and thus, he was defrauded of the value of 11/12 liters of diesel. He named Muhammad Saleem and Muhammad Shafique salesman as the accused persons and made the allegation that they had deprived him of the amount to the extent of the price of 11/12 liters of diesel through fraud. 3. After the registration of the First Information Report the law was set in motion. The statements of the P.Ws. Were recorded and the accused persons namely Muhammad Aslam writ petitioner, Muhammad Saleem and Muhammad Shafique were proceeded against. Muhammad Aslam has filed this petition for the abashment of the F.I.R.
---
## Page 2
4. Muhammad Riaz complainant-respondent No, .3 did not appear in spite of his personal service who was proceeded against ex parte. The S.H.O. Police Station Choochak, District Okara has submitted the comments and report who took up the stand that the case was correctly registered against the petitioner, that the challan was submitted in the Court of the learned Area Magistrate due to the conclusions of the investigation wherein the accused persons were prima facie found to be connected with the offences under section 420, Pakistan Penal Code and under section 3/6 of the Act of 1977. The S.H.O. Prayed for the dismissal of this writ petition. 5. Keeping in view the controversy in hand, for its proper analysis and disposal, it is proper to reproduce as under sections 415 and 420, Pakistan Penal Code:-- "415. Cheating.--- Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person, the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person or any other person in body, mind, reputation or property, is said to ' cheat'. ' Explanation. A dishonest concealment of facts is a deception within the meaning of this section." "420. Cheating and dishonestly inducing 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." 6. It is also proper to reproduce as under section 2(a), (b), (c), (e), (t) as well as sections 3, 4 and 6 of the Act, of 1977 as under:-- "2(a) 'Controller-General' means the Controller-General of Prices and Supplies appointed by the Federal Government, and includes any Deputy or Assistant Controller-General of Prices and Supplies so appointed, and any other officer authorised by the Federal Government to exercise all or any of the powers of the Controller-General under this Act. (b) ' Dealer' means a person carrying on, whether in conjunction with any other business or not, the business of selling any essential commodity, whether wholesale or retail; (c) ' essential commodity' means any of the commodities or classes of commodities mentioned in the Schedule; (e) ' notified order' means an order notified in the official Gazette; (f) 'producer' means a person engaged in the manufacture or production of any essential commodity." 3. Powers to make orders etc.--- (1) The Federal Government, so far as it appears to it to be necessary or expedient for securing equitable distribution of an essential commodity and its availability at fair price may, by notified order, provide for regulating the prices, production, movement, transport, supply, distribution, disposal and sale of the essential commodity and for the price to be charged or paid for it at any stage of transaction therein. (2) Without prejudice to the generality of the powers conferred by subsection (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 licenses, 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 commodity 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;
---
## Page 3
(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 charging of fees therefor. 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. 6. 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 fixed 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 fixed. 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. 7. 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 subsection 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. 7. Following is the Schedule of items issued under section 2 of the Act of 1977:-- Schedule (See section 2) (1) Tea, (2) White Sugar, (3) Milk, (4) Powdered Milk, (5) Milk food for infants, (6) Edible oils, hydrogenated or otherwise, (7) Aerated water, fruit juices and squashes, (8) Cigarettes, (9) Salt, (10) Potatoes, (11) Onion, (12) Pulses all sorts, (13) Fish all sorts, (14) Beef, (15) Mutton, (16) Eggs, (17) Gur, (18) Biscuits (packeted), (19) Spices and vegetables, (20) Red chillies, (21) Drugs and medicines, (22) Electric lamps (bulbs), (23) Kerosene oil, (24) Oil stoves, (23) Charcoal, (26)
---
## Page 4
Firewood, (27) Matches 40/50 sticks, (28) Coal, (29) Yarn and cloth all sorts, (30) Towel, (31) Soaps laundry and washing soap and toilet soap, (32) Tooth brush, (33) Tooth paste, (34) Shaving blades, (35) Shaving cream, soap and stick, (36) Footwear all sorts, (37) Shoe polish, (38) Paper all sorts, (39) Exercise books of all sorts, (40) Text-books of all sorts, (41) Cycles, (42) Mechanically propelled vehicles including those in completely knocked down condition and parts thereof, provided that motor cars included in the mechanically propelled vehicles shall have the same meaning as in the Motor Vehicles Act, 1939, (43) Tractors, (44) Chemical Fertilizers all sorts, (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 sorts, (50) Jute bags and hessian and kenaf products, (51) Poultry feed, (52) Bricks, (53) Cement. 8. The following relevant Notifications issued by the Government of Pakistan are also reproduced in the same context:-- Government of Pakistan Ministry of Industries Islamabad, the 10th June, 1978. Notification ' S.R.O. No,743(I)/78.--- 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 subsection (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/ Balochistan/North-West Frontier Province; (2) Director of Industries, Government of the Punjab/Sindh/ Balochistan/North-West Frontier Province; (3) All Deputy Commissioners; and (4) All Additional Deputy Commissioners. No,CGPS-1(9)/77 (Sd.) Allauddin Ahmad), Secretary Government of Pakistan Ministry of Industries Islamabad, the 10th June, 1978. Notification ' S.R.O. No, 744(i)/78.--- In exercise of the 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(1)/77, dated the 2nd August, 1977, the Federal Government is pleased to authorize 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/ Balochistan/North-West Frontier Province; (2) Director of Industries, Government of the Punjab/Sindh/ Balochistan/North-West Frontier Province; (3) All Deputy Commissioners; and (4) All Additional Deputy Commissioners. No . CGPS-1(9)/77 (Sd. 'Allauddin Ahmad), Secretary 9. 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 section 3/6 of the Act, 1977 had been issued by the competent Authority (District Magistrate, Okara) fixing the sale price of
---
## Page 5
diesel so as to attract the provisions of section 7 of the Act for the criminal liability of the writ petition 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 overcharging 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 sub stantivecum - procedural codified law reproduced above. Without the notification to be issued under section 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 fixed 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- fixed by the Federal Government as have been announced in the month of July, 1998. It, therefore, becomes clear that the Police, Police Station Choochak, District Okara exceeded its jurisdiction and acted illegally by registering the F.I.R. Under the Act, 197'Z. 10. About the attraction of section 420, Pakistan Penal Code I would express that no fraud was committed. The alleged recovery 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 boilable, 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. 11. The cumulative effect of the aforesaid analysis of the matter and discussion is that F.I.R. No,169 registered on 7-6-1995 at Police Station Chock, 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 litres of diesel while he told the concerned salesman that 214 litres of diesel filled the drum whose meter was not correctly running as 226 litres of diesel were shown to have been put in the drum and thus, he was defrauded of the price of 11/12 litres 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 Weights 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.
---
## Page 6
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:-- "Section 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; (1) "Trade" means any sale, bargain, transaction dealing or contract and includes collection of tolls and duties; (m) "Verification" means the verification or revivification made under this Act or Rules made thereunder; (n) "Weighing instrument" means any instrument for measuring weight and includes scales with the weights belonging thereto, beam scales, 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 Act. ' Section 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 specification 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 revivified 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 may 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 this Act. ' Section 4. Working Standards.-- (1) For the purpose of verifying commercial weights and measures in use, Government may provide such standard weights and measures, which 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 purposes of this Act, unless, it has been verified or reverified and marked in the prescribed manner, within such period as may be prescribed before the time at which it is used.
---
## Page 7
(3) A Working Standard which has become defective shall not be legal or be used for the purposes of this Act until it has been reverified and marked in the prescribed manner. (4) The Working Standard shall not be kept at such places, in such manner and by such persons as may be prescribed. ' Section 5. Standard Weighing and Measuring Instrument.--- (1) For the purpose of verifying the weighing instruments and measuring instruments used in trade or commerce, Government may cause to be prepared as many sets of standard weighing 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, in 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 working standards are kept. ' Section 6. Appointment of Controller, Inspectors, etc.--- (1) Government may appoint 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 any Inspector. (4) Government may, by general or special order, define the local limits within which each Inspector shall exercise the powers and discharge the duties conferred or imposed on an 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). ' Section 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. ' Section 8. Power to inspect and verify weights and measures.--- An Inspector may, 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 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 subsection (1)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.