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Criminal Revision No. 567 of 1983, decided on 2Znd November, 1983.

--- Ss. 439, 435 & 439-A read with Ss. 561-A & 144 Revision Petition against order under S. 144, Cr. P. C. - Maintainability before High Court-Two identical orders promulgated by Magistrate under S. 144, Cr. P. C. already unsuccessfully challenged before Sessions Judge-Held, it was futile to assail legality of third almost verbatim order before same forum-Direct petition, before High Court especially when no objection was taken by Assistant Advocate General at time of its admission maintainable in circumstances.

--- S. 144 (1) & (6)-Limit of order promulgated under S. 144, two months-Cannot be extended beyond 2 months unless Provincial Government by Notification in official Gazette in specified circum stances provides otherwise - Order under S. 144, Cr. P. C. only repetition of earlier two orders, rather almost a verbatim copy of second order, held, violated S.. 144 (6), Cr. P. C.

Ram Narain Shah and another v. Parmashar Parshad Shah and others A 1 R 1942 Paula 414 ; Niaz Muhammad and others v. D. M Bahawalpur P L D 1975 B J 36 and Ch. Abdul Aziz v. D. M. Sukkur P L D 1980 Kar. 333 ref.

-- Ss. 144 & 134 - Ex parte order - Circumstances showing no emergency-Notice to party concerned-Necessary-Dispute between labour and Management of Mills lingering on for some months-Prohibiting order under S. 144 already in force-Ample time to serve show-cause notice on petitioner if order under S. 144, Cr. P C, was contemplated to promulgate on expiry of second order - Non-service rendered order of show-cause notice, held, under S. 144, Cr. P. C. illegal in circumstances.

United Sugar Mills Ltd., Karachi v. D. M. Sukkur and another P L D Kar. 410 fol.

---- S. 144-Mala fide-Malice in law explained - Contention that provision under S. 144, Cr. P. C. necessarily invoked to coerce petitioner to pay WAPDA dues and outstanding wages to labour, there being no imminent danger to Public peace - Held, order suffered from malice in law-A person who inflicts a wrong or injury upon a person illegally; not allowed to say that he did so with an innocent mind-It malice in law though so far his mind is concerned, he may have acted honestly or innocently".-[Malice in law].

Begum Nazir Abdul Hamid v. Pakistan P L D 1974 Lah. 7 and Shearer

v. Shields 1914 A C 808 ref.

-- Ss. 435, 439 & 144 - Revisional jurisdiction - Contention that power of High Court in revision purely discretionary and same may not be exercised in favour of petitioner Mills being- defaulters in payment of not only Government dues but also wages to large number of workers, held, had no force -Order under S. 144, Cr. P. C. manifestly illegal, High Court cannot refrain from inter ference in revision merely on ground that conduct of petitioner not unblemished.

Syed Jamshed Ali for Petitioners.

Khalid Ramdey for Asstt. A.-G. for Respondent No. 1 and for the State.

Ejaz Anwar for Respondent No. 3.

Date of hearing : 20th November, 1983.

Messrs Mansoor Textile Mills Limited and Messrs Aaj Textile Mills Limited are Public Limited Companie3 operating as Aaj and Mansoor Textile Mills Limited in the same premises situated at Shorkot in Jhang District. Syed Jamaat Ali Shah is the Managing Director of these Mills. He has filed this revision petition under sections 435 and 439 read with section 561-A, Cr. P. C. to assail the validity of an order promulgated by the Sub-Divisional Magistrate, Shorkot, respondent No. I, on 26th September, 1983 under section 144, Cr. P. C. prohibiting members of the public as well as management of the Mills from removing any movable or immovable assets including articles lying in stock etc. out of the premises of the Mills for a period of two months from the date of the order.

2. On 26th March, 1983 the Mills were closed on account of disconnection of electricity for non-payment of electricity bills amounting to Rs. 7,20,000. A sum of Rs. 17,46,000 also is allegedly outstanding against the Mills as dues of the workers and a case in respect thereof instituted by the Labour Welfare Department is pending with the Authority under the Payment of Wages Act. On 2nd June, 1983 a case was registered at Police Station Shorkot under sections 148 and 3071149, P. P. C. for murderous assault on Ghulam Abbas, President of the Labour Union. It was alleged that on that day certain officials of the Management attempted to remove machinery from the Mills but Ghulam Abbas and other workers resisted saying that they would not allow the same till dues of the workers were paid whereupon the officials launched an attack and inflicted injures on Ghulam Abbas and another. On 18th June, 1983 the S. D. M., Shorkot, promulgated an order under section 144, Cr. P. C. prohibiting members of the public as well as the management of the Mills from removing or causing to be removed any machinery or implement out of the premises of the Mills for a period of two months, The necessity for this action, according to the order, accrued when it was made to appear to the S. D. M. that due to the closure of the Mills for non-payment of electricity bills and dues to the labour, the management was likely to remove or cause to be removed machinery or implements out of the Mills premises which was likely to disturb public peace and tranquil lity. The Management of the Mills assailed this order before the learned Additional Sessions Judge, Jhang, who vide his order, dated 11th July, 1983 upheld the same with an expectation that meanwhile steps would be taken against the Mills for the recovery of outstanding dues from them in accordance with law and provisions of section 144, Cr. P. C. would not be invoked time and again for the same object. Before the expiry of the above order, however, another order under section 144, Cr. P. C. was promulgated by the S. D. M., Shorkot, on 25th July, 1980. This order which superseded the earlier order, dated 18th June, 1983 contained the same prohibition but its ambit was enlarged so as to include movable or immovable assets and all articles lying in the stock etc. of the Mills. The Management challenged this order also before the learned Additional Sessions Judge, Jhang, by way of a revision petition but it too was dismissed, on 4th September, 1983 on the ground that there was no reason to interfere with the order. The second order expired on 25th September, 1983. However, on 26th September, 1983 the S. D. M., Shorkot, promulgated a third order under section 144, Cr. P. C. to the following effect :-

Whereas, it has been made to appear to me that due to the closure of Aaj and Mansoor Textile Mills. Shorkot for non-payment of electricity bills and due to the non-payment to the labour, the Management of the said Mills is likely to remove or cause to be removed any movable or immovable assets including articles lying in the stock etc. out of the Mills premises which is likely to disturb public peace and tranquillity.

(2) And whereas, in my opinion, there are sufficient grounds to proceed under section 144 of the Criminal Procedure Code, 1898 and immediate prevention is desirable and directions hereinafter appearing are necessary in order to prevent danger to human life, property and disturbance of public peace and tranquility.

(3) Now, therefore, I, Ch. Muhammad Sarwar, Sub-Divisional Magistrate, Shorkot, in exercise of the powers conferred upon me under section 144 of Code of Criminal Procedure, 1898, do hereby prohibit that no member of the public as well as the Managemew of Aaj and Mansoor Textile Mills, Shorkot shall remove any movable or immovable assets including all articles lying in the stock etc. out of the premises of Aaj and Mansoor Textile Milk, Shorkot.

(4) This order shall take effect from the date of issue and shall remain in force for a period of two months.

(5) Notwithstanding the expiry of this order everything done, action taken, obligation, liability, penalty or punishment incurred, investigation, inquiry or proceedings pending jurisdiction or powers conferred and proceedings pending against the offenders in Courts of Magistrates having 1st Class powers under the Code of Criminal Procedure, 1898 and punishment in respect of offences committed during the currency of this order shall be continued or launched as if this order had not expired.

(6) This order shall be given wide publicity by beat of drums, by publication thereof in the official Gazette and by affixing its copies at the gate of Aaj and Mansoor Textile Mills Shorkot, notice boards of Sub-Divisional Courts, Police Stations, Town Committees, Market Committee Shorkot Road, Tehsil Office Shorkot, Sub Tehsil Office Garmaharaja Office of Shorkot Cantonment Board, Offices of Project Managers Shorkot and Garmaharaja and all other conspicuous in Shorkot Sub-Division.

(7) Given under my hand and the seal of the Court this 26th day of Septem ber, 1983.

(Sd.) A. C./Sub-Divisional

Magistrate, Shorkot."

The above order has been impugned in the present revision petition.

3. The learned Assistant Advocate-General has raised a legal objection to the maintainability of this petition. According to him, the petitioner should have, in the first instance, approached the Court of Sessions at Jhaag for the relief sought in this petition. - In this connection, he has referred to section 439-A, Cr. P. C. The learned counsel for the petitioner in order to meet with this objection has argued that this petition would have been instituted in the Court of Sessions but in view of the fact that revision petitions filed against the earlier two orders promulgated by the S. D. M., Shorkot, under section 144, Cr. P. C. were dismissed, it was futile to assail before the same forum the legality of the third order also which was almost a verbatim copy of the second order. This argument is not without substance. Ordinarily, this Court would be reluctant to entertain an application for revision where the applicant could have but had not applied to the Sessions Judge. Nevertheless, in view of the earlier orders passed in the matter by the Sessions Court and the fact that no such objection was raised by the learned Assistant Advocate- General at the time of the admission of this petition, I do not feel inclined to throw it out now on this technical objection.

4. On merits, it is contended by the learned counsel for the petitioner that the S. D. M. had no jurisdiction to extend the duration of his prohibitory order under section 144, Cr. P. C. beyond the period of two months by repeating the same successively. In support of his contention he relies upon subsection (6) of section 144, Cr. P. C. which under :-

No order under this section shall remain in force for more than two months from the making thereof ; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the (Provincial Government), by notification in the official Gazette, otherwise directs."

The above provision of law clearly prescribes a time limit of two months for the operation of an order by a Magistrate under section 144, Cr. P. C., conferring a power on the Provincial Government to extend in certain specified circumstances the duration of such an order beyond two B months by a notification in the official Gazette. It was held in Ram Narain Shah and another v. Parmasher Parshad Shah and others (A I R 1942 Patna 414), that a Magistrate has no jurisdiction to make an order the renewal of the original order under section 144, Cr. P. C. as it is not open to him to evade sub section (6) of section 144.' by repeating order, under section 144. This view was followed in Niaz Muhammad and others v. D. M. Bahawalpur (P L D 1975 B J 36) and Ch. Abdul Aziz v. D. M. Sukkur (P L D 1980 Kar. 333), It was observed in the Niaz Muhammad's case that the repetition of an order under section 144, Cr. P. C. without break or with short intervals has always been disfavoured by law as it really amounts to achieving indirectly what the law prohibits of doing directly. Since in this case also the impugned order was only a repetition of the earlier two orders, rather almost a verbatim copy of the second order, it violated section 144 (6), Cr. P. C.

6. The second ground of attack is that the impugned order was passed ex parte, without there being any emergency justifying the same. Sub-section (2) of section 144, Cr. P. C. provides that "An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte." In this case the dispute between the labour arid the Management of the Mills was lingering on for quite a few months. The prohibitory order under section 144, Cr. P. C. was already in force since 18th June, 1983. If it was contemplated to promulgate the impugned order on the expiry of the second order, there was ample time with the S. D. M. to serve a notice on the Mills management in order to afford them with an opportunity to show cause as to why it should not be passed. This was not done and on this account also the impugned order is bad in law. In support of this view reference may be made to United Sugar Mills Ltd., Karachi v. D. M., Sukkur and another (P L D 1979 Kar. 410).

7. It is further argued by the learned counsel for the petitioner that the provisions of section 144, Cr. P. C. have been successively invoked maliciously merely to coerce the petitioner to pay WAPDA dues and outstanding wages to the labour and without any imminent danger to public peace and, therefore, the impugned order suffers from malice to law. In support of this assertion reliance is placed on Begum Nazir Abdul Hamid v. Pakistan (P L D 1974 Lah. 7), wherein the following observations made in Shearer v. Shields (1914 A C 808) have been quoted with approval :-

"The person who inflicts a wrong or an injury upon a person in contravention of the law is not allowed to say that he did so with an innocent mind. It is "malice in law ; although so far as his, mind is concerned, he may have acted honestly or innocently."

8. In view of the foregoing reasons, I am constrained to hold that the impugned order is illegal and liable to be set aside.

9. It is urged by the learned Assistant Advocate-General that the power of the High Court in revision is purely discretionary and the discretion may not be exercised in favour of the Milis because they are defaulters in the payment of not only the Government dues but also wages to a large number of workers. I do not subscribe to this view. Since the impugned order is manifestly illegal, this Court cannot refrain from inter ference in revision merely on the ground that, the conduct of the Mills . management may not be unblemished.

10. In the result, this revision petition is accepted and the impugned order is set aside.

M. B. A. Petition accepted.

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