IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No.S-574 of 2021

Applicant: Shahnawaz through Mr. Shabbir Ali Bozdar, Advocate.

Respondents No.3 to5: Nemo

State: Through Zulfiqar Ali Jatoi, Additional Prosecutor General

Date of hearing: 01.11.2021

Date of decision: 01.11.2021

O R D E R

Zulfiqar Ali Sangi, J: Through this application, the applicant has assailed the order dated 16.08.2021, passed by learned Judicial Magistrate, Ghotki, wherein FIR lodged against the Respondents was disposed of under ‘B’ class with direction to SHO P.S. Daharaki to initiate proceedings under Section 182 of the Pakistan Penal Code, 1860; besides department action against the present applicant.

2. Learned Counsel for the Applicant, at the very outset, submits that learned Judicial Magistrate, Ghotki, without applying his judicious mind, in a hurriedly manner, passed the impugned order, which is not tenable under the law; that Respondents have committed the heinous offence and evidence in this regard has also been collected by the Investigation Officer during investigation but the same have not be considered by the learned trial Judge; that learned Magistrate relied upon a Bill which was not made as Act and the FIR was registered under the prevailing laws viz. Agricultural Pesticide Ordinance, 1971; that the impugned order has no basis and is liable to be set-aside.

3. Learned DPG representing the state has not supported the impugned order and submits that the FIR was correctly registered under the provisions of Agricultural Pesticides Ordinance, 1971 which is still in the field and the Agriculture Pesticides Act, 2009 was not promulgated and only Bill was prepared hence the order passed by learned Magistrate is not sustainable under the law.

4. I have heard learned Counsel for the applicant and DPG for the State have gone through the material available on record.

5. From perusal of the impugned order it reveals that the same was passed with the impression that the Agriculture Pesticides Ordinance, 1971 has been repealed by Section 49 of the Agriculture Pesticides Act, 2009, in which the FIR is barred as per Section 40 of the said Act. The impugned order further reveals that the FIR was disposed of in “B” class by holding that it was falsely lodged and further by holding that complainant has abused the process of law by lodging false report with intend to misused lawful powers of Station House Officer, Police Station, Daharki, therefore, SHO was directed to initiate proceedings against the complainant under Section 182 of Pakistan Penal Code, 1860 and the copy of order was sent to Secretary, Agriculture Department, Government of Sindh, for discreet inquired and stern and exemplary departmental action against the complainant.

6. This Court called explanation report from the concerned Magistrate vide order dated 11.10.2021, and in compliance, learned Magistrate submitted his clarification/explanation report No.CJ&JM, DHK/1530/2021 dated 27.10.2021, which is reproduced as under:-

“It is respectfully submitted that the complainant of the case had lodged instant FIR at Police Station Daharki on 09-10-2020, so also he filed direct complaint No.2/2020, before this court on 21-11-2020. Learned prosecutor was asked to satisfy as to why in some cases direct complaint has been filed and in this case FIR has been registered. He was heard along with complainant and during arguments the assistance of senior counsel Mr.Altaf Hussain Chugtai(who has remained District Public Prosecutor) was taken. It was pointed out that Agriculture Pesticide Act, 1971 has been repealed by section 49 of APA, 2009.. The book titled as “Manual of Agriculture Pesticide Laws” published by Civil & Criminal Publication was produced from the office of District Public Prosecutor Ghotki which was perused in which Agriculture pesticide Act, 2009 was printed. However, according to the legislation rules, a bill becomes an Act after being passed from the legislature viz an assembly or parliament and therefore, a bill cannot be termed as an Act until passed as aforesaid. Moreover, the book does not bear any description that it is not passed by the Assembly. It was not new enactment but was of the year 2009, hence due to rush of work and oversight I could not verified it from Government of Pakistan as to whether it has been published in the official gazzete or not.

Report is submitted as required by your honour for kind perusal and record of above Cr.Misc.Application.

(Makhdoom Faiq Hussain)

Civil Judge & J.M, Daharki.

7. Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General stated that Atta Muhammad Soomro DSP (Legal) Ghotki personally contacted with the publisher of Book (Manual of AGRICULTURAL PESTICIDES LAWS) published by Civil and Criminal Publication Law Book published and sellers Lahore, who also stated that it was published as Bill only. It is also verified from the said Book and found that it was only published in a book as Bill and its title published in the book reads as under:-

“AGRICULTURAL PESTICIDES ACT, 2009

A Bill to regulate the import, export, manufacture, formulation, packaging, repackaging, sale, distribution, disposal, and advertisement and use of pesticides and for matters connected therewith or ancillary thereto; which itself reflects that the above bill was at the time of publication in the book was not pressed from the legislature.”

8. It is further observed that the amendments made in the Province of Punjab in the year, 2012 in the Agricultural Pesticides Ordinance, 1971 by way of the Punjab Agricultural Pesticides (Amendment) Act 2012 (XXV of 2012) on 11^th February, 2012, which too confirms that the Agricultural Pesticides Ordinance, 1971 was not repealed by the Act of 2009 and no any evidence/record/statute was provided by any party that the Agricultural Pesticides Act, 2009 was published in the Gazette of Pakistan as an Act of 2009.

9. In the above circumstances, it is clear that at the time of registration of FIR and passing of impugned order Agricultural Pesticides Ordinance, 1971 was in field and the order passed by learned Civil Judge and Judicial Magistrate, Daharki by holding that it was repealed is illegal, unlawful and is in violation of law hence is not sustainable and the same is set-aside.

10. These are the reasons of my short order dated 01.11.2021 wherein this Court set-aside the impugned order and directions were issued to learned Magistrate for passing fresh order without being influence with his earlier order.

Faisal Mumtaz/PS JUDGE