Inayatullah Vs. Province of Sindh, Federation of Pakistan

IN THE FEDERAL SHARIAT COURT

( Original Jurisdiction )

PR ESE N T

M R .JU ST IC E H A Z IQ U L K H A IR I, C H IEF JU STIC E

M R .JU ST IC E ALLA M A D R .FID A M U H A M M A D K H A N

M R .JU ST IC E SA L A H U D D IN M IRZA

M R . JU S T IC E M U H A M M A D Z 4 F A R YASIN

SH A R IA T P E T IT IO N N Q .l-K -2 0 0 0 1 Inayatullah son o f Muhammad Idrees Soom io . Propnetoi A1 Madina Pesticide Store, Hospital Road,Kandiaro 2. Qamaruddm son o f Hap Allahdin Sheikh, Proprietor Abdullah Form Service Dadu Road Moro, District Naushahro Feroze.

3.Ghulam Hussain son of Bilaw al Khan Morlo. Proprietor Ghulam Hussain M ono.Pesticides Store. Tharushah.Taluka Bhma.District Naushahro Feroze 4 Ansar Mahmood son of Ghulam Mahmood Checma.Piopnetor Cheema Pesticide Store.Mehrabpur.Taluka Kandiaro. District Naushahro Feroze

5.Muhammad Rafique son o f Hizbullah abro. proprietor Abro Pesticides Store, Hospital Road. Kandiaro Petitioners

Versus

1 Province o f Sindh to be served through Secretary Ministry of Agriculture, Government o f Sindh. Karachi 2. Federation of Pakistan to be served through Secretary. Ministry o f Law, Federal Government of Pakistan, Islamabad Respondents

Counsel for petitioners Sardar Akbar F Hujjan, Advocate

For the Government of Sind Mi Fand-ul-Hassan.AAG Date of Institution 21 . 10.2000

Date o f hearing 5.1 2009 Date of decision

Shaiiat Petition No l-K-2000

JU D G M E N T

M U H A M M A D Z A F A R YA SIN . JU D G E .- Through this Shariat petition filed under Article 203 D of the Constitution, petitioner Inayalullah along with four others ha\echallenged sub-section (3) and

(6)of section 18 o f the Agricultural Pesticides Ordinance, 1971 as amended by Ordinance No XLIX of 1997. with the plea that the said sub-sections o f section 18 are repugnant to the Holy Qur'an and Sunnah 01 Holy Prophet (PBUH), thus prayed for a declaration m this respect 2 The petitioners are doing business as retail sellers o f Pesticides since long They purchase the pesticides of \ anous companies registered under “The agricultural Pesticides Ordinance,197 l" The ^aid companies are rcgistcicd by the Federal Government for importing, manufacturing, and packing the pesticides in small containers and labeling the same The grievance of the petitioners is that they have neither any facility ot chemical laboratories to check the quality as per standard specification o f the chemical formula of the pesticides, which they purchase from \a n o u s registered companies, foi sale as letail selleis nor they are

authorized to remove the ceiling applied by the manufacturer on the container, while such facility is fully available with the 1 e Government o f Pakistan as w ell as with the pro\ incial government Therefore, the retail seller should not be held liable for any penalty, if sample of pesticide is taken from his possession by the Inspector under this Oidinance and it is found sub-standard or adulterated by the pesticide laboratory. The relevant provisions challenged through this Shanat petition i e. sub section 3 and (6) of section 18 of the Agricultural Pesticides Ordinance, 1971 as amended in 1997 read as under -

(3)Any document purport to be a report signed by the Government Analyst of an analysis conducted by him undci this Chapter shall be e o n d u si\e e\ idence of the particulais stated therein against the person from whose possession the sample has been taken unless the person to whom the report has been delivered under sub-section (2) disputes the correctness o f the anahsis conducted bv the Government * v

analyst and, within thirty days of the dcbvciy o f the icport to him, places before the (Federal Government) evidence which in his opinion controverts the correctness of such analysis

(6)A cerlilicale oi analysis prepared by the Pesticide Laboratory shall be conclusive evidence of the facts stated therein, against the person fiom whose possession the sample has been taken

The petitioners have not cited/quoted any Qur’anic Verses 01 any Hadilh of the Holy Piophel (PBUH) to substantiate their plea that the above noted provisions under challenge are violative of Injunctions ot Islam but the petitioners have simply alleged so and have referred follow ing Qur’anic verses in the foot note o f the Shariat petition For convenience the Qur'amc Verses referred in foot note are reproduced here

1 “Those are a people who have passed aw'av Thens is that which they earned, and yours is that which ye earn And ye wall not be asked of what they used to do. (Al-Baqra-134)’’ 2. “Allah lasketh not a soul beyond its scope For it (is only) that which it hath earned, and against it (only) that w'hich it hath deserved. Our Lord1 Condemn us not if we forget, or miss Uk mark! Our Lord ! Lay not on us such a burden as thou didst lay on those before us' Our Lord' Impose not on us that which we have not the strength to bear' Pardon us. absolve us and have mercy on us, Thous. our Protector, and give us victory over the disbelieving folk (Al-Baqara- 286) "

3.Those who disbelieve say unto those who believe Follow our w'ay (of religion) and we verily will bear your sins (for you) They cannot bear aught o f their sms. L o1 They verily arc liars (Al-Ankaboot-12)"

4 “But they verily wall bear their own loads and other loads beside their own, and they verily will be questioned on the Day of resurrection concerning that which they invented “ (Al-Ankaboot-13).

Relevant portion of Last sermon ( Khutba tul Widah) of the H oh Prophet (PBUH) is as under

“Beware, no one committing a crime is responsible tor it but himself. Neither the child is responsible for the crime of his father, noi the father is responsible for the crime o f his child ” , The learned counsel for the petitioners has also challenged the said provisions of law on the touch stone that these provisions are in violation of Article 25 ot Constitution of Islamic Republic of Pakistan being discriminatory

4.Pre-admission notice was issued to the respondents, thereafter the petitioners, with permission of the court, had struck off the names o( respondents N o.1,2 and 4 This Shariat petition was admitted to regular hearing on 9.4 2008 Thereafter the Federal Government filed the requisite comments On behalf of Respondent N o.3 l e province o f Sindh, District Officer Agriculture Naushahro Feroz filed the para wise comments and also argued the matter We have heard the arguments of the learned counsel foi the pctitionei as well as the respondents.

5.Learned counsel for the petitioners has argued that the retail seller has been held liable under the impugned provision o f law even if he has not committed offence o f adulteration or made the pesticide sub­ standard, simply because sample o f pesticide has been from his possession, which has been found adulterated or sub-standard by the official Pesticide Laboratory Thus to penalize the retail seller for the wrong done by the manufacturer, importer or the formulator, is contrary to injunctions o f Islam

6.On the other hand it has been argued that the impugned provisions o f law are m no way violative o f any injunction o f Qur’an or Sunnah.

The law has been enacted to ensure that the consumer gets unadulterated and per standard specification pesticide for use

7 Under Islamic law it is well established position that a person is considered to be the owner o f an article from whose custody it has been recovered Thus if an adulterated or sub-standard pesticide is recovered from a retail seller it would be presumed that he was its owner and responsible o f its being substandard or adulterated Otherwise the

retailer has a full right to get the said pesticide checked from Government Chemical Laboratory, whether these are according to prescribed Chemical formula and also unadulterated, when he had purchased from the importer or formulator. Otherwise also the relevant provisions o f the Agricultural Pesticides Ordinance, 1971 as amended in 1997 is to be read as a whole and sub-section 3 and sub-section 6 o f section 18 are not to be read in isolation. If we read the whole Ordinance it would clearly show that it is not the retail seller who is responsible but , any one from whose custody the adulterated or sub-standard pesticide

M

has been recovered is liable to the penalties prescribed by this law In this respect relevant provisions are sections 10, 20,21 and 22 o f the Agricultural Pesticide Ordinance, 1971 which are reproduced for convemence:-

Sec.10. Labelling o f packages.- (1) No person shall sell or offer or expose for sale, or advertise or hold in stock for sale any pesticide unless each package containing the pesticide, and every tag or label durably attached thereto, is (branded or) marked m prmted characters in such form and m such manner as may be prescribed.

(2)In the even o f a distributor, dealer, wholesaler, retailer agent or vendor selling any adulterated or sub-standard

Shanat Petition No l-K-2000

pesticide, the importer, manufacturer or formulator from or through whom the said pesticide has been obtained shall also be guilty o f the offence committed by the aforementioned distributor, dealer, wholesaler, retailer, agent or vendor, as the case may be, and be liable to the same punishment Provided that, pesticide m the same package or label are recovered from the w areh ouse or store o f the importer, manufacturer, distributor or formulator, as the case may be, and established to be also adulterated or substandard

(3)Any dealer wholesaler, retailer or an agent who has been convicted o f not less than two offences under this Ordinance shail be black listed by the importer, manufacturer, distributor or lormulator o f the pesticide in question Sec 20 Purchaser o f pesticide may have it tested or analyzed— (1) Any person who has purchased a pesticide may apply to a Government Analyst to conduct test or analysis o f the pesticide

(2)An application under sub-section (1) shall be made in such form and manner and be accompanied by such fee as may be prescribed.

(3)The Government Analyst to whom an application is made in accordance with sub-section (2) shall conduct the test or analysis and issue to the applicant a report signed by him o f the test or analysis

Sec.21 Offences and penalties:- (1) Any person who imports, manufactures, formulates, sells, offers or exposes for sale, holds in stock for sale or advertises for sale an adulterated or sub-standard pesticide shall be guilty o f an offence

(2)The person guilty o f an offence under sub-section (1) shall be punished -

(a)in the case o f an adulterated pesticide, in relation to a first offence with imprisonment for a term which shall not be less than one year or more than three years and with fine amounting to five hundred thousand rupees and for e\ery subsequent offence

Shanat Petition No l-K-2000

with imprisonment for a term which shall not be less than t\*o years or more than three years and with fine which shall not be less than five hundred thousand rupees or more than one million rupees, and

(b)in the case o f a sub-standard pesticide, in relation to a first offence with imprisonment for a term which shall not be less than six months or more than two years and with fine which may extend to five hundred thousand rupees and for every subsequent offence with imprisonment which may extend to three years and with fine but shall not be less than the punishment given or the first offence ”

Sec.22 Whoever gives a false warranty to a dealer or purchaser in respect o f adulterated or sub-standard pesticide shall, unless he proves that when he gave the warranty he had good reason to believe the same to be true3, be guilty o f an offence punishable in the same manner and to the same extent as provided for under section 21.

8.A s regards the arguments o f the learned counsel for the petitioners that the impugned provisions o f the Ordmance are in violation o f Article 25 o f the Constitution o f Islam ic Republic o f Pakistan being discriminatory, the learned counsel has failed to point out any discrimination reflected through the impugned provisions o f amended law. Furthermore to challenge any law on the touchstone o f fundamental rights, given in the Constitution, the forum is High Court and not this Court

9.In view to secure interest o f consumer this law has been enacted and amended, while no provision o f the amended law has been found to be contrary to the Injunction o f Qura’n or Hadith referred m the foot note o f the petition.

10.In view thereof there is no merit in this Shariat petition, therefore, the same is dismissed

JUSTICE MUH * YASIN

4)H

JUSTICE HAZIQUL KHAIRI

CHIEF JUSTICE

JUSTICE A . . . M UHAM M AD KHAN

JUSTICE SALAH UDDIN MIRZ

Announced on 6 - H - At L ^ r ^ - M Akram/

W -Z -