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Official Citation: 2020 PLD 599
Court / Jurisdiction: Lahore High Court
Year of Decision: 2020
Decision Date: 2020-05-07
Parties: Punjab Food Authority vs Amanat Ali etc
This judicial decision was delivered by the Lahore High Court on 2020-05-07. The matter involves proceedings between Punjab Food Authority and Amanat Ali etc, officially reported as 2020 PLD 599. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 2020 Lahore 599
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Sadiq Mahmud Khurram Title: Punjab Food Authority vs Amanat Ali etc Case No.: Writ Petition No. 152 of 2019 Date of Judgment:2020-05-07 Reported As: 2020 LHC 1314, PLD 2020 Lahore 599 Result: Petition accepted
JUDGMENT
JUDGMENT TARIQ SALEEM SHEIKH, J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), assails the vires of order dated 24-12-2018 passed by the learned Additional Sessions Judge, Rahimyar Khan. 2. Brief facts of the case are that the Petitioner , Punjab Food Authority , is a body established under Section 3 of the Punjab Food Authority Act, 2011 (the "Food Authority Act"), to regulate and monitor the food business in order to ensure provision of safe food in the province. The Petitioner has framed Punjab Pure Food Regulations, 2018, in exercise of the powers conferred on it under Section 57 of the Food Authority Act. On 26-11-2018, the Director Vigilance, Deputy Director (Operations) and the Food Safety Officer, Rahimyar Khan, inspected business place of Respondent No.1, "Amanat Khoya Point" , and found him producing Khoya which did not meet the standard prescribed by Regulation No.1.8.2. Consequent thereupon, the Food Safety Officer seized 252 sacks of whey powder weighing 25 kgs each, three sacks of semolina weighing 50 kgs each, banaspati ghee 30 kgs, two cream machines and five Karahay (cauldrons), sealed the premises and lodged FIR No.507/2018 under Sections 22, 23, 31(1) and 31(2) of the Food Authority Act at Police Station Kot Samaba. Respondent No.1 subsequently made an application to the Special Court/Magistrate Section 30, Rahimyar Khan, for superdari of the aforesaid articles which was dismissed vide order dated 12-12-2018. He filed revision petiti on thereagainst which was accepted by the learned Additional Sessions Judge on 24-12-2018. The Petitioner/Food Authority has now approached this Court for quashing of that order . 3. The learned counsel for the Petitioner contended that the Food Authority Act was a special law and provided for an appeal only against a final order of the Special Court to the Lahore High Court. It specifically excluded revisional jurisdiction in respect of the proceedings of the Special Court. As such, the learned Additional Sessions Judge was not competent to entertain the revision petition of Respondent No.1 and the impugned order was void ab-initio. The
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learned counsel further contended that even on merits the said order was perverse and not sustainable. He prayed that this petition be accepted and the impugned order may be set aside. He placed reliance on The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi (PLD 2013 SC 361). 4. On the other hand, the learned counsel for Respondent No.1 vehemently opposed this petition. He contended that Section 435 Cr.P.C. read with Section 439-A thereof conferred revisional jurisdiction on the Sessions Judge and empowered him to look into the legality and propriety of any finding or order of inferior criminal courts. Since the Special Court was one of such courts, no exception could be taken to the impugned order. On merits he submitted that the said order was well reasoned and based on correct application of law so it did not call for interference by this Court. The learned counsel relied on Abdul Hafeez v. The State (PLD 1981 SC 352), The State v. Syed Qaim Ali Shah (1992 SCMR 2192 ), Mian Khalid Rauf v. Chaudhry Muhammad Saleem and another (PLD 2015 SC 348), and Syed Saleem Shah v. The State and 5 others (PLD 2019 Lahore 435) in support of his contentions and prayed for dismissal of this petition. 5. The learned Assistant Advocate General supported the Petitioner's stance. 6. Arguments heard. Record perused. 7. Article 175(2) of the Constitution ordains that no court shall have any jurisdiction except as it is conferred on it by the Constitution or by or under any law. Article 202 empowers the High Court to make, subject to the Constitution and law, rules to regulate its own practice and procedure or of any court subordinate to it while Article 203 enacts that every High Court shall have the authority to supervise and control all the courts subordinate to it. In Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) a Larger Bench of the Hon'ble Supreme Court of Pakistan had the occasion to examine the import of these Articles. It ruled: "(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law. (ii) That the words 'such other Courts as may be established by law' employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof. (iii) That our Constitution recognizes only specific tribunals which share judicial powers with the above Courts like the tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfu lly share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. " 8. The Code of Criminal Procedure, 1898 (hereinafter referred to as the "Cr.P.C." or the "Code"), consolidated and amended the law relating to criminal procedure. By Section 1(2) it extends to the whole of Pakistan but, in the absence of any speci fic provision to the contrary , nothing therein contained affects any special or local law which is in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. Part II of the Code relates to constitution and powers of criminal courts and offices and Section 6 describes the classes of criminal courts and Magistrates. It reads as under: 6. Classes of Criminal Courts and Magistrates. - (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely: (i) Courts of Session; (ii) Courts of Magistrates. (2) There shall be the following classes of Magistrates, namely: (i) Magistrates of the first class. (ii) Magistrates of the second class; and (iii) Magistrates of the third class. 9. Section 435 of the Code read with Sections 439 and 439-A thereof confers revisional powers on the High Court and the Sessions Judge and authorize them to call for and examine the record of any proceedings before any inferior criminal court situated within the local limits of its or his jurisdiction for the purpose of satisfying itself or
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himself as to the correctness, legality or propriety of any finding, sentence or order passed by it. It is important to point out that the revisional jurisdiction envisaged by the Code is distinct from the supervisory jurisdiction conferred on the High Court by Article 203 of the Constitution. The Hon?ble Supreme Court had the occasion to consider the scope of Article 203 in Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage de Air and others (2006 SCMR 1684). It ruled that it is meant to enable the High Court to ensure fair and proper administration of justice and not to help any party to the lis. The apex Court added: "Various Articles of the Constitution and various provisions of other laws provide that High Court exercises Revisional, Appellate and Constitutional jurisdiction. Any remedy to an aggrieved person in judicial matters can be granted by High Court while exercising aforesaid powers, in addition to the one contemplated by Section 151 C.P.C. and Section 561-A Cr.P.C. From the very language of Article 199 and Article 203 of the Constitution it becomes abundantly clear that Article 203 is not meant to be invoked by a party nor is the Court required by Article 203 of the Constitution to provide any relief to any party to a cause." 10. Section 6 of the Code perspicuously states that the legislature may be law establish other courts in addition to those created under the Code. In Abdul Hafeez v.The State (PLD 1981 SC 352) the Hon'ble Supreme Court observed: "A perusal of the above will show that the classes of the criminal Courts as given in Section 6 are not exhaustive because it contemplates that such Courts may as well be 'constituted under any law other than this Code'. This may be read with Article 175 of the Constitution of 1973 which ... states that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law . "The combined effect of these two provisions is that "criminal courts" are not necessarily only those which are mentioned in section 6 of the Criminal Procedure Code but this term will also include such other criminal courts which are constituted under any other law ." 11. The Food Authority Act is a special law. Section 40 thereof establishes Special Court consisting of a presiding officer and two technical members. If the Special Court is not established or is not functional in an area, a Magistrate exercising powers under Section 30 of the Code for the area is deemed to be the Special Court under the Act. Section 41 lays down the procedure for taking cognizance of the offences under the Act and their investigation while Section 42 stipulates the time-limit for prosecutions. Section 43 prescribes the procedure for trials. It ordains that a Special Court may summarily try an offence punishable under the Act and impose punishment of imprisonment for a term not exceeding six months or fine not exceeding one million rupees. However , if it is of the opinion that the nature of the offence does not justify summary trial, it may conduct proceedings in accordance with the provisions of Chapter XX of the Code. The Special Court is, therefore, by all means a criminal court within the meaning of Section 6 of the Code. 12. Section 5(1) of the Code mandates that all offences under the Pakistan Penal Code, 1860, shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. However , in terms of Section 5(2), for offences under other laws the procedure prescribed in the Code would be followed subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such of fences. 13. The controversy in the instant case revolves around the interpretation of Section 45A of the Food Authority Act which reads as under: 45A. Appeal against conviction .- (1) The Authority or the person sentenced by a Special Court may, within thirty days from the date of communication of the order , file an appeal against a final order of the Special Court to Lahore High Court. (2) Save as provided in this Act or rules, no court shall take cognizance or revise a sentence, or transfer any case from a Special Court, or make order under Sections 426, 491 or 498 of the Code or have jurisdiction of any kind in respect of any proceedings of the Special Court. 14. Sub-section (1) grants right of appeal to the Lahore High Court. It ordains that the Food Authority or the person sentenced by the Special Court may file an appeal against that Court's final order within thirty days. This clause is important because it is trite law that the right of appeal does not exist unless it is expressly conceded by the statute.
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There isn't any scope for inferring such a right by implication. If any authority is required on this point, reference may be made to Het Ram v. Collector of Aligarh (AIR 1941 All. 355), Hari Meah v. The State (PLD 1958 Dacca 333), The Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Syed Fazlur Rahman and others (PLD 1960 Dacca 200), Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), I.C.I. Pakistan Limited v. Salahuddin and others (1991 SCMR 15), Habib Bank Ltd. v. The State and 6 others (1993 SCMR 1853 ), Faiz Muhammad v. Mehrab Shah and others (PLD 1997 Pesh. 166), Syed Masroor Shah and others v. The State (PLD 2005 SC 173), and Multan Electric Power Company Ltd. through Chief Executive and another v . Muhammad Ashiq and others (PLD 2006 SC 328 ). 15. On the other hand, sub-section (2) of Section 45A is exclusionary . Statutory provisions which limit the jurisdiction of ordinary courts are quite common. However , it is too well-settled to be disputed that jurisdiction must be excluded by clear and definite words and not by implication. The Halsbury' s Laws of England (Fourth Edition) states - "The subject's right of access to the courts may be taken away or restricted by statu te but the language of any such statute will be jealously watched by the courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such exten sion. Moreover , a statutory provision ousting the jurisdiction of the courts must now be interpreted, as far as possib le, so as to be compatible with the right to a fair and public hearing under the European Convention on Human Rights as incorporated into domestic law ." 16. In Oil and Gas Development Co. Ltd. v. The Sacked Employees Review Board and others [2016 PLC (C.S.) 1318 ], the Islamabad High Court summarized the principles for construction of ouster clauses in statutes as follows: "(i) The legislature is competent to oust or exclude the jurisdiction of courts. (ii) There is a presumption against the ouster of jurisdiction. Any law or statutory provision which denies access to the courts is to be construed very strictly and narrowly . (iii) Ouster or exclusion of jurisdiction must be expressly and clearly implied and not readily inferred. The language used by the legislature ought to show express and unequivocal manifestation of the legislative intent to exclude the jurisdiction of the courts. (iv) If the language is so clear and unmistakable that leaves no room for doubt as to the intention of the legislature ousting jurisdiction in all circumstances then that will be given effect to even in cases of mala fides and without jurisdiction would not be open to judicial review and the courts would not be concerned with the consequences. (v) Ordinarily , unless the intention of the legislature is so clear that no other meanings can be given to the language used, the jurisdiction of the courts will not be ousted in three categories of decisions/orders i.e. (a) without jurisdiction, (b) coram non judice and (c) tainted with mala fide . (vi) Ordinarily, when the legislature declares an order or decision to be final, it has reference to such orders/decisions which is within the powers of the authority making it, the authority should have constituted in accordance with the statute, the person proceeded against should be subject to jurisdiction, the order passed or action taken should be such as could have been made under a statute and if these conditions are fulfilled then an omission or irregularity committed in following the statutory procedure will not be a sufficient ground to avoid giving effect to the exclusion of jurisdiction." 17. The phraseology used in sub-section (2) of Section 45A of the Food Authority Act is not new. A number of statutes in the past contained similar provisions which were considered by the courts. One of the earliest cases in this respect is Sheo Nandan Prasad Singh v. Emperor (AIR 1918 Patna 103) which involved interpretation of Section 8(1) of Act IV of 1915 known as the Defence of India (Criminal Law Amendment) Act. It enacted that "there shall be no appeal from any order or sentence of the Commissioners appointed under this Act, and no court shall have authority to revise such order or sentence, or to transfer any case from such Commissioners, or to make any order under s.491 Criminal P.C., 1898, or have any jurisdiction of any kind in respect of any proceedings under this Act". A Full Bench of the Patna High Court held that Section 8(1) "quite clearly expressed" that the decision of the Commissioners should be final and conclusive and no other court
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should have any powers of interference either by way of appeal, revision or in any other way whatsoever. Ali Imam, J., one of the members of the Bench added in his separate note: "It is contended for the petitioner that exclusion of interference under this section, though extensive, is not exhaustive. The words or have any jurisdiction of any kind in respect of any proceedings under this Act? have been the subject of much discussion in the hearing of this Rule. A possible construction of these words has been suggested to be in the nature of ejusdem generis and that the words under notice should be construed to limit the exclusion to powers of such character as are enumerated in the rest of the section. This might have been a possible view if the concluding passage in the section were less unambiguous than it is. The use of the word `any' in the three places in this passage governing jurisdiction and character of jurisdiction with reference to all proceedings under the Act leaves no room to doubt that the framers of this Act intended the section and have in fact so worded it as to be exhaustive. The meaning of the section is to be gathered from its language, which is also evident from the special character of Act IV of 1915 which provides for a special machinery to secure public safety and the defence of British India by the more speedy trial of certain of fences." 18. In Banwari Gope and others v. Emperor [AIR (30) 1943 Patna 18] the petitioners were convicted by the Special Magistrates appointed under the Special Criminal Courts Ordinance (II of 1942). They filed revision petitions against their convictions before the High Court. One of the questions for determination was whether the proceedings of the Special Magistrates were subject to revisional jurisdiction of the High Court. A Full Bench while interpreting Section 26 of the Ordinance (which was couched in almost the same words as Act IV of 1915, supra, and the Food Authority Act) held that they derived jurisdiction from the Ordinance and did not function as inferior criminal courts within the meaning of Section 435 Cr.P.C. Relevant excerpt from the judgment is reproduced hereunder: "The next point to be decided is what power can be exercised by the High Court in these cases. It seems to me to be plain that the High Court cannot revis e the order of conviction or sentence passed by the Special Magistrates concerned under Sections 435 and 439 Cr.P.C. because this power of revision can be exercised only as against orders passed by Magistrates exercising jurisdiction under the Code of Crimi nal Procedure. As the Special Magistrates derive their jurisdiction from the Ordinance, they cannot be properly described as `inferior criminal Courts' and the High Court cannot revise their order . It does not however necessarily follow from this that the High Court is entirely powerless in the matter . Under Section 491 Cr.P.C., the High Court may direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction be set at liberty . It seems obvious to me that if the Ordinance under which the petitione rs were tried was not applicable to their cases, then their trial was no trial at all in the eye of law and they cannot be detained in a prison because they should be deemed to have been committed to prison without a trial and because the Magistrates who have sentenced them to imprisonment had no power to send them to prison." The Privy Council seems to have taken the same view in Emperor v . Benoari Lal Sarma (AIR 1945 PC 48). 19. Again, in Gopal Marwari and others v. Emperor (AIR (30) 1943 Patna 245) while dealing with Section 26 of Ordinance II of 1942 a Special Bench of the Patna High Court observed: "Section 26 expressly provides against interference by any other Court with the proceedings of a Court constituted under the Ordinance. There is an express reference to Section 491 and since only High Courts can act under Section 491, Section 26 must have been designed to exclude interference by all other Courts including the High Courts." 20. In Hari Meah v. The State (PLD 1958 Dacca 333), the petitioner was a dealer in food grains. He was tried summarily by the Special Magistrate of Comilla under Section 6 of the East Pakistan Food (Special Courts) Act (X of 1956) and was convicted and sentenced. He preferred an appeal before the Sessions Judge of Tippera but that was dismissed being not maintainable. Aggrieved, he filed a revision petition before the Dacca High Court but that too was dismissed. The Division Bench held that the Special Magistrate appointed under Act X of 1956 exercised powers conferred on him by that Act and not by the Code. As such, his jurisdi ction was special and in some respects larger than that of the Magistrates of First Class under the Code. Even though he was a criminal court in the generic sense, his orders were not open to revision by the High Court under Section 439 Cr .P.C.1
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21. Ch. Zahur Ilahi, M.N.A. v. The State (PLD 1977 SC 273) is another important case on the point in issue. The facts were that the petitioner (Ch. Zahur Ilahi), a Member of the National Assembly from the opposition, was arrested on 06-02-1976 by the Punjab Police in connection with the murder of Ch. Muhammad Anwar Samman. On 12-02-1976 the Hon'ble Supreme Court of Pakistan admitted him to bail but before his release he was arrested by the Karachi Police in a case registered against him earlier under Section 16 of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960). He was taken to Karachi where an Additional Sessions Judge granted him bail. Again, before his release, two more cases under the Defence of Pakistan Rules, 1979, were registered against him on 14-02-1976. Ch. Zahur Ilahi applied to the Special Tribunal for bail before arrest which was declined. Thereafter he approached the High Court of Sindh & Balochistan but a learned Single Judge summarily rejected his application on the ground that he had no jurisdiction under Section 13 of the Defence of Pakistan Ordinance (XXX of 1971). In this background the august Supreme Court was called upon to interpret Section 13, supra , which provided as follows: 13. Appeals from sentences imposed by Special Tribunals etc. - (1) A person sentenced by a Special Tribunal - (a) to death or transportation for life, or (b) to imprisonment for a term extending to ten years under section 6 of this Ordinance or under sub-section (4) of section 5 of the Official Secrets Act, 1923 (XIX of 1913), as amended by section 7 of this Ordinance shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and. no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a special Tribunal. (2) Chapter XXIX of the Code shall apply to the suspension. remission and commu tation of sentences passed by a Special Tribunal, so between, that the powers exerciseable by the Provincial Government under that Chapter shall be exercised by the Central Government. 22. The Bench consisted of five learned members who recorded separate opinions. Muhammad Yaqub, C.J. was of the view that the jurisdiction of ordinary courts, including the High Court, is completely taken away in respect of the proceedings of the Special Tribunal once it takes cognizance of a case. He held: "The word `any' is used at no less than seven places in section 13(1)(b). It is a word of very wide amplitude and defined in Stroud's Judicial Dictionary as a word which excludes limitation or qualification (per Fry. L.J., Duck v. Bates (12 QBD 79), `as wide as possible' (per Chitty, J., Heckett v. Sutton (51 LJ Ch.433). What then is the meaning of the words: `Notwithstanding the provisions of the Code, or any other law, no Court shall have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal'. The plain and unequivocal words used in these clauses of section 13(1)(b) make the intention of the law-giver manifest that no Court including a High Court shall under the Code or any other law, call in question or interfere with the…
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