2015 PLP 194 (YLR)

ABDUS SATTAR ASGHAR, J.

Petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 to impugn the order dated 9-7-2013 passed by the learned Magistrate Ist Class Kot Addu District Muzaffargarh whereby petitioner's application under section 133 of the Criminal Procedure Code, 1898 was dismissed. He further assails the order dated 14-6-2014 passed by the learned Additional Sessions Judge Kot Addu whereby petitioner's criminal revision petition under sections 435/439, Cr.P.C. was also dismissed.

2. Arguments heard. Record perused.

3. Section 133 of the Criminal Procedure Code, 1898 empowers a Magistrate to furnish speedy remedy where public nuisance is being committed with regard to the categories mentioned in the section. In this case petitioner lodged the complaint under section 133, Cr.P.C. before the learned Magistrate Ist Class Kot Addu District Muzaffargarh alleging that the public thoroughfare in Khata No.146 Rectangle No.148 situated in Mauza Jhonjanwali Tehsil Kot Addu in use of the general public since long has been forcibly closed by the respondents by raising obstructions. The respondents denied the existence of the public right in the way in dispute contending that no sanctioned public thoroughfare/road existed in their owned land rather a Kacha passage was made by them for their own exclusive need and personal use. It is on the record that the respondent Ghulam Shabbir has also filed a civil suit for declaration with permanent injunction in the court of learned Civil Judge Ist Class Kot Addu against the petitioner and another asserting that he is owner-in-possession of the land measuring 1189 Kanals and 2-Marlas in Khewit No.146/136 situated at Mauza Jhonjanwali Tehsil, Kot Addu and no public thoroughfare existed in the said land. Petitioner is resisting the said suit by filing contesting written statement. The matter is subjudice before the Civil Court. Keeping in view the respondents' contention that the passage in dispute was exclusively used by them and no violation of public right was involved in it the learned Magistrate therefore rightly held in his order dated 9-7-2013 that the provisions of section 133, Cr.P.C. were not attracted at all. Order of the learned Magistrate was rightly maintained by the learned Additional Sessions Judge Kot Addu through the impugned order dated 14-6-2014 whereby petitioner's criminal revision petition was dismissed.

4. It is well established that findings of the revisional court of competent jurisdiction cannot be assailed by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, therefore instant writ petition is not maintainable against the order passed by the learned Additional Sessions Judge in criminal revision petition. Reliance is made upon, (i) Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge Jhang and 6 others (PLD 1993 SC 399) and (ii) Muhammad Fiaz Khan v. Ajmer Khan and another (2010 SCMR 105). It may be expedient to reproduce the relevant extract from the case of Badaruddin (supra), which reads below:-- "

7. Second ground given by the High Court is that writ will not lie if final order is passed by the Revisional Court. There is no dispute about the fact that powers of the High Court for exercise of revisional jurisdiction under section 439, Cr.P.C. are wider in scope than powers in the writ jurisdiction. By amendment in the law now Sessions Court and High Court have concurrent revisional jurisdiction which is allowed in the normal course to be exercised first by lower forum but that does not decrease the scope of jurisdiction as mentioned above. In such circumstances it is said that if there is finding by the Court of competent jurisdiction on the revisional side then it has attained finality. On the same question writ petition would be non-maintainable because otherwise it would amount to allowing question finally decided in one set of forums to be agitated afresh in another set of forums and that way there will be no end to the finality. In support of the proposition reference can be made to the cases of Abdul Rehman Bajwa v. Sultan and others (PLD 1981 Supreme Court 522) and Javaid Iqbal v. Muhammad Din and another (1990 SCMR 1309).

8. For the facts and reasons stated above, we are unable to find any flaw or legal infirmity in the judgment of the High Court to which no exception can be taken. Resultantly, leave is refused and petition is dismissed as having no merits."

5. I do not find any jurisdictional error or legal infirmity in the impugned order dated 9-7-2013 passed by the learned Magistrate and the revisional order dated 14-6-2014 passed by the learned Additional Sessions Judge Kot Addu.

6. For the above reasons, instant writ petition having no substance and being not maintainable is dismissed in limine. ARK/F-29/L Petition dismissed.