2005 PLP 1718 (CLD)

The petitioner through this Constitutional petition seeks annulment of order dated 25-8-2004 passed by learned Additional Sessions Judge, Bahawalnagar dismissing revision petition filed by the petitioner against the order dated 17-6-2004 passed by learned Special Judicial Magistrate, Bahawalnagar whereby on a complaint filed by respondents Nos.3 to 5 under section 133, Cr.P.C. the learned Special Magistrate directed the S.H.O., Police Station, City Bahawalnagar to seal the premises detailed in the said complaint being source of nuisance for the residents of the locality.

2. The main ground agitated in this petition is that after enforcement of Pakistan Environment Protection Ordinance (XXVII of 1997), the learned Special Judicial Magistrate respondent No.2 had no jurisdiction to entertain the complaint of respondents Nos.3 to 5 and that in terms of section 24 of the said Ordinance only the Special Judicial Magistrate notified by the High Court was competent to take cognizance of the complaint. The learned counsel has also placed reliance on the case "Abdul Latif' and 2 others v. Additional Sessions Judge, Sahiwal and other" 2001 CLC 1139.

3. On 11-3-2005 when this petition was admitted to regular hearing, it was directed that notice be issued to the learned Advocate-General, Punjab in terms of section 24-A, C.P.C. to appear and address the Court as to whether the law laid down in the above cited judgment of this Court was correct. Despite notice the Advocate-General did not turn up, consequently considering the service of Advocate-General sufficient compliance of section 24-A, C.P.C., the matter was heard in presence of learned Assistant Advocate-General representing the Advocate-General as well as the Government.

4. Today, the learned A.A.-G. at the very outset, by placing reliance on "Allah Ditta and others v. Muhammad Ramzan and others" 2005 YLR 650 contends that High Court vide Notification No.152-JOB-1(5)/VI-E.28 dated 24-4-1997 conferred powers under section 24 of the Pakistan Environment Protection Ordinance (XXVII of 1997) on all the Senior Civil Judges-cum-Judicial Magistrates under section 17 of the said Ordinance with immediate effect, hence, on this point the learned Assistant Advocate-General agreed with the contention of learned counsel for the petitioner that the learned Judicial Magistrate /respondent No.2 had no jurisdiction to entertain the complaint of respondents Nos.3 to 5 and by taking cognizance of the same to pass any order.

5. Malik Sadiq Mehmood Khurram, Advocate who was called upon to address the Court as amicus curiae, argued that though the Judicial Magistrate respondent No.2 could not entertain the complaint of respondents Nos.3 to 5 and try the same yet the law laid down by my learned brother Mr. Justice Dr. Munir Ahmad Mughal, J. (as his Lordship then was) in the above-referred judgment holding that after enforcement of Pakistan Environment Protection Ordinance (XXVII of 1997) the Provisions of section 133, Cr.P.C. stood repealed, was not correct but in fact after the enforcement of above Act of 1997 only the forum to try such matter was changed. He further submits that petitioner was neither party before the learned trial Magistrate nor ever made effort to be impleaded as such; knowingly that proceedings were in progress against his father Muhammad Gulzar but he kept on waiting till the final order of respondent No.2, hence he could neither be considered as aggrieved person within the meaning of Article 199 of the Constitution nor lie had any authority to file the writ petition against the order passed against his father or another person, neither of whom has been impleaded as party in this petition. Hence, the learned amicus curiae argued that despite the orders of respondents Nos.1 and 2 being without jurisdiction the same could not be interfered with by this Court in Constitutional petition filed by an incompetent person.

6. The learned counsel for the petitioner adding to his arguments contended that in fact disputed premises was owned by the petitioner and that the impugned order was obtained by respondents Nos.3 to 5 without impleading him as party, whereas he was a necessary party and impugned order was passed in his absence and in violation of principles of natural justice.

7. I have considered the arguments of learned counsel for the parties, the learned A.A.-G. as well as the learned counsel appearing as amicus curiae and have also gone through the relevant law with their assistance.

8. It is an admitted fact that petitioner never attempted to come forward to contest the proceedings before the learned Magistrate and allowed his father Gulzar Ahmad to defend the same and it was only after passing of the order by the said Judicial Magistrate that petitioner out of a sudden woke from slumber and filed revision petition against the order of' the Judicial Magistrate and then filed the present: writ petition. Without any evidence on record the petitioner cannot be considered as aggrieved person and that writ petition filed by him is also not competent. However, this Court cannot confer jurisdiction which was not otherwise available to the Judicial Magistrate/ respondent No.2. Even consent cannot confer jurisdiction on any person if the same is not conferred on him under the law. Reliance is placed on the case "Muhammad Ramzan v. Member (Rev.)/CSC and others" 1997 SCMR 1635. Since the Judicial Magistrate respondent No.2 had no jurisdiction to entertain the complaint and pass the impugned order after enforcement of Pakistan Environment Protection Ordinance (XXVII of 1997) and it was only the Senior Civil Judge-cum-Judicial Magistrate who had been notified as Environmental Magistrate by the High Court in terms of sections 17 and 24 of the said Act, hence the order passed by C the learned Judicial Magistrate dated 17-6-2004 was ab initio void and being coram non judice, the same is annulled and consequently the order passed by the learned Additional Sessions Judge dated 25-8-2004 in exercising revisional jurisdiction also falls on the ground in view of the law declared by the Honourable Supreme Court of' Pakistan in the case "Yousaf Ali v. Muhammad Aslam Zia and 2 others" PLD 1958 SC 104-Pak.

9. However, this Court cannot sit as an idle spectator over a situation created by the petitioner resulting in causing mental and physical inconvenience, annoyance and discomfort by way of nuisance in the vicinity by installing shoes manufacturing factory in the residential area. This act of the petitioner or his father cannot be approved by throwing out the complaint of respondents Nos.3 to 5 on the excuse of want of jurisdiction by the Judicial Magistrate. Resultantly, by following the decision of this Court in the case of' "Allah Ditta and others v. Muhammad Ramzan and others" 2005 YLR 650 referred to above and also as suggested by the learned amicus curiae, the complaint filed by respondents Nos.3 to 5 titled "Rasheed Ahmad v. Shehzad Ahmad" shall be deemed to be pending before the learned Senior Civil Judge-cum-Judicial Magistrate, Bahawaingar who will decide the same afresh on merits on or before 30-3-2006 E with compliance report to this Court through Additional Registrar of this Bench. Before deciding the complaint the said Court will also summon the present petitioner and also afford him opportunity of hearing.

10. Before parting with this judgment, I would like to point out that the view taken by my learned brother Dr. Muhammad Munir Mughal, J. (as his Lordship then was) in the above-referred judgment, that after enforcement of Pakistan Environment Protection Ordinance (XXVII of' 1997), section 133, Cr.P.C. automatically stood repealed on the principle that. "later enactment to repeal the earlier enactment or a special enactment supercedes the general" is still open to further discussion and will be decided in some appropriate matter.

11. At this point I would also like to appreciate the valuable assistance rendered by the learned amicus curiae. N.H.Q./5-399/L Order accordingly.