P L D 1965 (W (PLP)

To undergo rigorous imprisonment for a period of one month plus a fine of Rs. 200, or in default of payment thereof to undergo rigorous imprisonment for a further period of one month under section 431 ; and to pay a fine of Rs. 50 under section 341, P. P. C. or in default to suffer simple imprisonment for a period of one month. The sentences were ordered to run consecutively.

2. Muhammad Khan was also ordered to remove the wall which he had constructed across the public street within a month failing which he was ordered to pay a fine of Rs. 10 daily so long the wall in question was not removed by him.

3. Muhammad Khan appealed to the Court of Session and the learned Sessions Judge, Peshawar, who disposed of the appeal upheld the convictions and sentences passed on Muhammad Khan and dismissed the appeal. Muhammad Khan has now come up in revision under section 439, Cr. P. Code to this Court.

4. Briefly the facts of the case are that on the 25th of November 1963, Baz Mir instituted a complaint against Muhammad Khan and two others for offences under sections 341, 355, 431 and 504, P. P. C. in the Court of Mr. Muhammad Jan Khan, Magistrate 1st Class, Kohat, in which he alleged that Muhammad Khan and others had constructed a wall across the public street leading to his house and when a minor daughter of the complainant tried to pass that way, they pushed her, that the complainant approached Muhammad Khan and his brothers in this connection and he too was pushed and that Muhammad Khan and his brothers by constructing a wall in a public street had committed various offences including that of wrongful restraint and mischief.

5. The complainant examined Haji Yaqub (P. W. 2), Ghulam Sadiq (P. W. 3), Ashraf Alam (P. W. 4) and Haji Abdul Ghaffar (P. W. 5) besides himself in support of his case.

6. The defence of the petitioner was that he had constructed the wall not on the public street, but in his own land which is part of shamilat Kandi Bhangi Khel owned and possessed by him. The petitioner examined Islam Gul Patwari (D. W. 1), Anar Khan Chowkidar (D. W. 2) and Asghar Shah (D. W. 3) in support of his defence. The Patwari stated that according to revenue record Muhammad Khan and his brothers are in a hissadari possession of twelve marlas shown as path in Khasra Nos. 5543/3674/3, Khata No. 238/531 of shamilat Kandi‑Bangi Khel according to Jamabandi for the year 1953‑54 and the ownership of the aforementioned Khasra Nos. is still with Banaras and others. The evidence of the village Chowkidar and Asghar Shah is to the effect that Baz Mir complainant has no right of way over the land in dispute which is owned and used only by Muhammad Khan petitioner and that the thoroughfare is at some five paces away from the place in dispute.

7. Learned counsel for the petitioner did not rely on the statement of Anar Khan Chowkidar or Asghar Shah. They were rightly disbelieved and I have not the least hesitation in coming to the conclusion that their evidence is worthless. The statement of the Patwari in no way advanced the case of the petitioner. The Jamabandi for the year 1953‑54 also shows a rasta in 12 marlas.

8. It is thus clear that there exists a public thoroughfare at this place and this is further borne out from the evidence of Ghulam Sadiq (P. W. 3) and Ashraf Alam (P. W. 4). Ghulam Sadiq stated that his father had sold 12 marlas of land to Baz Mir complainant who constructed a house on it. Ghulam Sadiq further said in his statement that there is a path in front of the house of the complainant which leads to the main thoroughfare of the village and that the street in question alongwith other streets vests in the Municipal Committee. Ashraf Khan, Light Inspector, Municipal Committee, Kohat corroborated the statement of Ghulam Sadiq. He deposed that the street in question is a Municipal street and no one has got any right to close it is in any way. In view of the statement of the complainant and his witnesses, there is no manner of doubt left that the petitioner constructed a wall across the street which now vests in the Municipal Committee, which looks after the lighting of the street as is clear from the statement of Ashraf Alam recorded by the lower appellate Court. There is overwhelming evidence to prove that the petitioner by constructing a wall across the public street not only prevented the complainant from passing that way but also used criminal force against him when he protested. He .is, therefore, proved to have committed the offence under section 341, P. P. C. The conviction and sentence of fine of Rs. 50 imposed on him under section 341, P. P. C. is maintained. The conviction and the sentence passed on the petitioner for the offence unde section 431 cannot be sustained inasmuch as the complainant failed to prove that the offence committed was in respect of any public road. All that the complainant was able to prove was the existence of a public street which is different from a public road. Section 431, P. P. C. makes the doing of any act which renders an public road . . . . . . "impassable or less safe for travelling or conveying property, punishable with imprisonment of either description for a term which may extend to five years, or with fine, or with both." In view of the language of the section I am clear in my mind that it does not apply in the case of a public street. The conviction of the petitioner under section 431, is, therefore, set aside. The sentence of imprisonment of one month and a fine of Rs. 200 is remitted. The fine of Rs. 200, if paid, is to be refunded to the petitioner.

9. The order directing the petitioner to remove the wall in question within one month appears to have been made under the provision of section 522, Cr. P. Code though the order itself is silent on this point. This part of the order made by the learned trial Magistrate is also upheld.

10. The order directing Muhammad Khan petitioner to pay a fine of Rs. 10 for each day so long as the wall in question is not removed is not legal and cannot be maintained and is hereby set aside. The revision petition is accepted to that extent only. K.B.A. Petition partly accepted.