Azhar Fazal & 5 others Vs ASJ Jaranwala etc

Form No:HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Writ Petition No.32312 of 2025

Azhar Fazal etc. Versus ASJ etc.

S.No. of order/ Date of order/ Order with signature of Judge and that of Proceedings Proceedings Parties of counsel, where necessary.

27.05.2025 Barrister Shehryar Kasuri, Advocate for the petitioners.

Through this constitutional petition, the petitioners (proposed accused) have assailed order dated 24.05.2025 passed by the learned Ex-officio Justice of Peace, Jaranwala District Faisalabad whereby, upon the application moved by respondent No.4 under Sections 22- A & 22-B of the Code of Criminal Procedure, 1898, respondent No.2 stands directed to record the version of respondent No.4, register the FIR and then to proceed further strictly in accordance with law.

2.Arguments heard. Available record perused.

3.Allegation against the petitioners, as per application under Sections 22-A & 22-B of the Code of Criminal Procedure, 1898, is that respondent No.4 supplied sugarcane to the petitioners’ factory against the Cane Purchase Receipts through Tariq Corporation Ltd. Jaranwala but despite repeated demands, the due amount was not paid to him. On 12.03.2025 at 11.00 a.m. when accompanied by the two witnesses, respondent No.4 went to the proposed accused Azhar Fazal, General Manager of the Mills/petitioner No.1 for this purpose, he along with his other co-accused ridiculed him, detained him in a

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room, slapped and kicked him, kept him on gun point, intimidated him with words reproduced hereunder: - ’’۔۔۔وتازلاماہیلعنوکیھبالبایلاوراےنپاپچنسکویکسریٹاگرڈزوکیھبالبایل۔۔۔اوردرگیازلام اہیلعنیھباسھترمکےںیمہعمویکسریٹاگرڈزاسلئووگااہنوکڑپھتاورڈھٹےامرےتوہےئےل ےئگاور واہںرپ اج ر ازلام اہیلعن ے ےنہرپ ویکسریٹ اگرڈز ےنزربدیتسرمکہ ںیم دنب ر دای۔ ازلام ےناہکہکبجکتاسلئ ےاسھتےئیکےئگانرواں ولسکاکذ ریسکدرگیےس رےن1 ہیلعربمن اور رمق اک دعم اطمہبل و دعم اقونین اکروایئ اک ودعہ ہن رںی۔ اسلئ و وگااہن وک درتف ےس ابرہ ہن اجےن دانی ےہ اور ہن یہ وفن رےن دانی ےہ۔ سج رپ ویکسریٹ اگرڈز ےن نج وک اسےنم ٓاےن رپ انشتخ ر اتکس وہں اسلئ رپ اجن ےس امرےن یک رغض ےس اہحلس اتن ایل اور اینپ ڈامیڈن ے اطمقب اافلظ یک ادایگیئ اک اہک وصبرت درگی اجن ےس امرےن ے ےئیل افرئ امرےن یک دیکمھ دی سج رپ اسلئ ےن ہعم ‘‘وگااہناےنپاجناچبےن ےےئیلذموکرانےسودعہ ر ےاینپاجنیشخب روایئ۔۔۔ Perusal of paragraph No.2 of abovementioned application reveals the cited allegations which prima facie attract the penal provisions of Sections 342 and 506 PPC, both cognizable. Existence of dispute of payment of sugarcane’s price reportedly supplied to the Mills is not denied on record even in police report and the comments/report submitted by the Deputy Commissioner to the learned Justice of Peace. There is no doubt about the proposition that on receiving information regarding commission of an offence, respondent No.2 is under obligation to record the same either under Section 154 or 155 of the Code of Criminal Procedure, 1898, as the case may be. The facts argued by learned counsel for the petitioners to controvert the stance of respondent No.4 involve factual controversy which is not to be resolved by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The Addl. District Complaint Officer, Jaranwala Division Faisalabad has not mentioned about the availability of evidence on the basis of which he has opined as under: -

Writ Petition No.32312 of 2025 پی دایکمھں دانی وریغہ اثتب ہن وہےئ،’’۔۔۔زین درایتف ےس درگی ازلاامت ٹیشنر وک وبحمس رےنھک ‘‘ںیہ۔۔۔ In this view of the matter, the opinion rendered is not tenable.

4.So far as the reliance of the learned Ex-officio Justice of Peace upon the report/comments sent by the Deputy Commissioner, Faisalabad, Additional Cane Commissioner within the district, taking the same as a complaint as required under Section 21(b) of the Sugar Factories (Control) (Amendment) Act, 2021 (the Act) is concerned, this Court is of the opinion that the Cane Commissioner or Additional Cane Commissioner or their nominee empowered under the above cited provision has to proceed in the light of Section 13-A and 19 of the Act ibid which for reference and ease are reproduced as under:-

[[13-A. Powers of the Cane Commissioner to determine the liability of an occupier of a factory.—(1) The Cane Commissioner shall determine the liability of the occupier of a factory for payment of cane price to a cane-grower or the cane-growers, as the case may be, not later than forty five days of the end of the crushing season.

(2)When the Cane Commissioner makes a determination under sub-section (1) and the amount so determined is not paid within the stipulated time period of fifteen days, the amount shall be recoverable as arrears of land revenue under the Punjab Land Revenue Act, 1967 (XVII of 1967).

(3)An amount recoverable as arrears of land revenue under sub-section (2) shall be recovered by the Additional Cane Commissioner of the concerned District from an occupier of the factory and the recovered amount shall be paid to the cane-grower in question.

(4)The powers granted under subsections (1), (2) and (3) shall be deemed to have always been

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vested in the Cane Commissioner and the Additional Cane Commissioner, as the case may be.

(5)An appeal shall lie to the Secretary Food against an order passed by the Cane Commissioner or Additional Cane Commissioner under this Section.]]

19.Determination of “occupier” for Purposes of this Act: - (1) Where the occupier of a Factory is a firm or other association of individuals, any one of the individual partners or members thereof may be prosecuted and punished under this Act for any offence for which the occupier of the Factory is punishable.

Provided that the firm or association may give notice to the Collector that it has nominated one of its members to be the occupier of the factory for the purposes of this Act, and such individual shall be deemed to be the occupier for the purposes of this Act until further notice canceling his nomination is received by the Collector or until he ceases to be a partner or member of the firm or association.

(2)Where occupier of a factory is a company, any one of the directors thereof, or, in the case of a private company, any one of the share-holders thereof, may be prosecuted and punished under this Act for any offence for which the occupier of the factory is punishable:

Provided that the company may give notice to the Collector that it has nominated a director, or, in the case of a private Company, a share-holder, to be the occupier of the factory for the purpose of this Act and such director or share-holder shall be deemed to be the occupier of the factory for the purposes of this Act, until further notice canceling his nomination is received by the Collector or until he ceases to be a director or share-holder.” Paragraph No.3 of the report sent by the Deputy Commissioner to the learned Ex-officio Justice of Peace reveals that the liability of the occupier had not been determined till then. Moreover, prosecution under the Act is to be initiated against the occupier determined in the light of provisions of Section 19 of the Act ibid and not

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against all concerned with the factory but learned Ex- officio Justice of Peace remained oblivious of this provision. Moreover, as per mandate of Section 21(b) of the Act, the offence under the Act is cognizable only upon a formal report by the Cane Commissioner, Addl. Cane Commissioner or their nominee otherwise, the act or offence remains non-cognizable in view of which the learned Ex-officio Justice of Peace does not carry authority or jurisdiction to issue direction for registration of FIR for contravening the provisions of the Act or any order or rule made thereunder that makes the contravention punishable under Section 21(a). Hence, a formal report by any of the Officers mentioned in Section 21(b) of the Act to the police, is required to make the reported act or offence cognizable and being so FIR is not to be registered upon the report of an individual as this provision excludes everyone including the grower.

5.In consideration of mentioned supra, the comments received by the learned Ex-officio Justice of Peace from the Deputy Commissioner are not to be taken as a report in terms of Section 21(b) of the Act ibid. Being so, the order passed by the learned Ex-officio Justice of Peace, to the extent of registration of case against the petitioners under the provisions of the Sugar Factories (Control) (Amendment) Act, 2021, is set aside being not maintainable. However, keeping in view the allegations, to the extent of Sections 342 & 506 PPC, both cognizable in nature, the instant Writ Petition is dismissed and

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respondent No.2 is directed to record the statement of respondent No.4 and proceed in accordance with law.

(Syed Shahbaz Ali Rizvi) Judge

APPROVED FOR REPORTING:

Judge