1990 P Cr (PLP)

(iv) That the petitioners have not challenged the order, dated 26-2-1989 in any forum including this writ petition, therefore, they are not entitled to any relief. On merits it was argued that the petitioners started tilling a portion of the village pond and raising structure in such a manner that it interfered with the flow of the water. The respondents Nos. 4 to 9 and the other inhabitants of the village were compelled to petition to the District Magistrate for relief. The application was marked to respondent No.2, who visited the spot, recorded the statements of the parties and it was thereafter that he found that the petitioners are guilty of causing public nuisance and directed them to remove the structure by 25-2-1989. The petitioners did not impugn this order in any forum. On the other hand they tried to secure an injunction fro the Civil Court by suppression of true facts. It is added that the petitioners have raised disputed questions of fact which cannot be made subject-matter of this Constitutional petition, therefore, they are not entitled to any relief.

4. Mr. Muhammad Rashid Malik, Advocate; appeared for respondents Nos. 1 to 3 and adopted the arguments as well as preliminary objections raised by Mr. Abid Hassan Minto. It is added that since final order has been passed and executed, therefore, the present proceedings amount to flogging a dead horse.

5. The learned counsel for the petitioners in reply to the arguments of the learned counsel for the respondents has argued that availability of alternative remedy is no bar. It only regulates discretion in the matter. It is added that once the Constitutional petition is admitted, then this objection will not be available at subsequent stage. Moreover revision was not adequate remedy because there is no right of hearing as per section 440, Cr.P.C. It is added that respondent No.2 did not act in a judicial capacity, therefore, writ was only proper remedy in addition to the fact that there was no record, which could be summoned and examined by the revisional Court. In this behalf reliance is placed on the case of Muhammad Nazir Khan v. Dr. Mubashar Hassan and another P L D 1974 Lah.

49. The argument on preliminary objections was concluded with the submission that if reference is made to the prayer clause of the petitioners, then it is clear that the petitioners have sought reliefs, which neither could have been subject matter of the revision petition nor could have been granted. On merits it was explained that actually it is the respondents Nos.4 to. 9, who are guilty of suppressing the facts from the Civil Court because when they appeared on the very first date, they did not disclose to the learned Civil Court that the structure is being demolished in proceedings under section 133, Cr.P.C. This silence alone proves that the alleged proceedings conducted by respondent No.2 were all fake and bogus. It is added that respondent No.2 acted illegally and mala ride, therefore, writ should be issued.

6. I have given my anxious considerations to the arguments of the learned counsel for the petitioner and gone through the record as well as provisions of law. Now before proceeding any further I would deal with the preliminary objections raised by the learned counsel for the respondents. The first preliminary objection was that the petition raises controversial and disputed questions of facts which cannot be made subject-matter of this petition. The whole argument of the (earned counsel for the petitioners on merits revolves around the fact that the disputed structure was raised in a village pond. It was A added that it is a matter of common knowledge that stagnant water is there but on the other hand respondent No.2 after spot visit and enquiry has concluded that the structure has obstructed the flow of water. Respondents Nos. 4 to 9 have also maintained that the pond was serving as a drainage system which presupposes flow of water. Even the plan annexed by the petitioners alongwith the plaint supports this view because according to this plan the village pond is divided by the road into two portions and both are connected by a culvert. If the water is stagnant then the provision for the culvert is meaningless. Anyhow it 'is not for this Court to determine whether the water is stagnant or flowing. This is beyond the scope of the Constitutional petition and once this conclusion is reached then on merits the petitioners have nothing to say.

7. This is not all. The petitioners have sought direction to the effect for restoration of the structure. It is not clear what was the exact nature of the structure. The learned counsel for the petitioners when confronted with this difficulty candidly conceded that the detail of the structure is not available and B submitted that the petitioners will be fully satisfied if only boundary walls are reconstructed. I am afraid that it is not possible for this Court to make a determination of the structure demolished and then to have it reconstructed.

8. It is established on record that the petitioners appeared before respondent No.2 on 23-2-1989 and their statements were recorded. This is not all. The petitioner No.l signed at the foot of the interim order while the other petitioner had affixed his thumb-impression. This is in acknowledgment of the contents of the interim order but in spite of this when they filed suit on 25-2-1989 against the Province as well as respondents Nos. 4 to 9, they did not disclose in the plaint that action is being taken under section 133, Cr.P.C. on the one hand and on the other hand they neither impleaded respondent No.2 nor other complainants. They have clearly alleged in para. 3 of the plaint that defendants C Nos.2 to 7 are influential persons, who have good relations-,vith respondent No.l, and they are taking benefit of this and are out to demolish their structure. The same position was maintained in the present petition. This is not all. The petitioners untill this date have not challenged the final order, dated 26-2-1989 in any forum. They have also failed to impaled all the complainants as respondents in this Constitutional petition. Above all they have failed to prove any vested right to clandestinely occupy the portion of Shamlat Deh and raise construction. These facts are sufficient to refuse them any discretionary relief in Constitutional jurisdiction.

9. This brings us to the main preliminary objection raised by Mr. Abid Hassan Minto, counsel for respondents. The objection was that since revision was competent, appropriate and adequate remedy, therefore, the petitioners are not entitled to any relief in Constitutional jurisdiction. The learned counsel for the petitioners, on the other hand, as already noted, proceeded to submit that the revision was not competent because it was not a judicial order and it was not an adequate remedy because the petitioners have no right of hearing as provided by section 440, Cr.P.C. Before proceeding any further with the matter it is worthwhile to refer to the provisions of sections 435, 439-A and 440, Cr.P.C. The same reads as under: Section 435, Cr.P.C "The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the Provincial Government in this behalf, may call for and examine the records of any proceedings before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation

All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 437." Section 439-A, Cr.P.C. "In case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439." Section 440, Cr.P.C "No party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision: Provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect section 439, subsection (2)."

10. It was added that the term Criminal Court as used in section 435, Cr.P.C. has not been defined in the Criminal Procedure Code, therefore, the definition as given in the Pakistan Penal Code will be applicable. On the other hand, learned counsel for the respondents has referred to section 6 of the Criminal Procedure Code wherein details of the Criminal Courts have been given. The same reads as under: Section 6, Cr.P.C "Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in Pakistan namely: (1) Courts of Session; (III) Magistrates of the First Class; (IV) Magistrates of the Second Class; (V) Magistrates of the Third Class."

11. The learned counsel thereafter referred to Explanation 2 subsection (1) of section 435, Cr.P.C. to urge that it covers all Magistrates irrespective of their duties. In the last it was submitted that respondent No.2 exercised the powers under Chapter X of Cr.P.C., therefore, his orders are all amenable to revisional jurisdiction.

12. I have given my anxious considerations to the arguments of both sides on preliminary objections. Criminal Procedure Code was enacted in 1898 and E throughout the period of about 90 years the revision was deemed competent against the orders passed under section 133 of the Criminal Procedure Code. In this behalf reference can be made to the cases of Muhammad Ayub and others v. I The State A I R 1952 All. 215, Braman Water Mills v. Mangladha Mal A I R 1928 Lah. 95, Lal Din v. State and 2 others 1987 P Cr. L J 263, Atta Ullah Khan v. Muhammad Akram and 5 others 1985 P Cr. L J 2409 and Abdul Wahid Khan v. Abdullah Khan A I R 1925 All.

13. It is otherwise against the scheme of the law to presume that a party aggrieved by order under section 133, Cr.P.C. had no remedy before country entered Constitutional era as civil suit was clearly barred under subsection (2) of section 133, Cr.P.C.

14. The learned counsel for the respondents rightly pointed out that the Legislature has given the detail of the classes of Criminal Courts in section 6 while in the explanation to subsection (1) to section 435, Cr.P.C. it was made clear that all such Courts are inferior to the Sessions Courts for purpose of this subsection. This coupled with the fac: that the Legislature has used the words F `may call for and examine the records of any proceedings before any inferior criminal Court'. The wording is wide enough to cover in its folds all actions and procedings, orders of the criminal Court. Even otherwise law leans in favour of interpretation which is bencfu;ial rather rendering the citizens without a remedy. This way from whatever angle the proposition is approached revision is competent. 14-A. The question, whether the village pond is stagnant or it is a drain, is a question of fact, which this Court cannot go into in the Constitutional proceedings. Similarly, the nature of the structure and the damage cannot be mooted in extraordinary proceedings. In this way we are left with the irregularities in the proceedings pointed out by the learned counsel for the petitioners but the same arc not enough or sufficient for interference in the Constitutional jurisdiction of this Court. I am fortified in my view by the judgment in the case of Haq Nawaz and others v. Ramzan and others P L D 1975 Pesh.

199. The relevant portion of the judgment reads as under: "Assuming however, that the order in question was defective in some measure, section 537, Cr.P.C. would have cured it, as the parties in this case were allowed full opportunity to adduce their respective evidence and then argue the case on merit. However, since the conditional order of learned Magistrate in this case has been found by me to be in accord with the requirement of section 133, Cr.P.C., reference to section 537, Cr.P.C. would not arise." Further reliance can be placed on the case of Ram Dayal Misra v. Mt. Jaqdamba Debi and another A I R (2) 1942 All.

443. The relevant portion reads as under: "It is argued before me that the procedure of the Magistrate was irregular. This Court, however, is not a Court of criminal appeal and it will only interfere if substantial justice has (not) been done." Calcutta High Court id the case of Rash Behari Saha v. Phani Bhusan Halder A I R 1921 Cal. 76 held that the aggrieved party should first move Sessions Judge. The relevant portion reads as under: " It is not the practice of this Court to entertain applications of this nature unless the party has first moved the Sessions Judge to make a reference to this Court."

15. Now once again reverting to the merits of the case, learned counsel for the petitioners has argued that since the pond is neither river nor channel, therefore, the proceedings were not covered by section 133, Cr.P.C. and are as H such, illegal. The argument is clearly misconceived, because it loses sight of the second part of subsection (1) of section 133, Cr.P.C. It is clear from this provision that unlawful obstruction or nuisance should be in respect of: (i) way; (ii) river or channel which is or may be lawfully used by public; and (iii) any public place.

16. The term `public place' has been defined in explanation at the end of subsection (2). It covers property belonging to State, camping grounds and grounds left unoccupied for sanitary or re creative purposes. The definition is not exhaustive or restrictive. The pond in dispute is admittedly a part of Shamlat Deh left unoccupied and used as storage of sullage water. Therefore, it will be fairly and squarely covered by the definition as given in explanation. The construction by the petitioners is obstruction, therefore, amenable to action under Chapter X, this is not all. Even the action of the petitioners will be covered by nuisance as defined in section 268 of Pakistan Penal Code The same reads as under: "A person is guilty of a public nuisance who does any act or is guilty of an I illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage." It is clear from the definition of the nuisance that the construction in the pond also amounted to nuisance and the complainants rightly took exception to the same, therefore, proceedings by respondent No.2 are fully justified.

17. The petitioners have further sought declaration to the effect that the respondents are liable to be punished and respondent No.10 was under. legal duty to record F.I.R. Since the petition is liable to be dismissed both on facts as well as on law points, therefore, the petitioners are not entitled to declaration as to punishment of respondents. The grievance of the petitioners that respondent No. 10 has not registered the case does not call for any declaration from this Court. If respondent No.10 has failed to register a case then the petitioners have an alternative remedy of private complaint. If so advised they can pursue their remedy. No declaration is necessary from this Court.

18. Now coming to the directions part, the first prayer was that respondent No.2 be restrained from carrying out any further action. The proceedings before respondent No.2 had come to an end and order executed, therefore, this part of the prayer has become infructuous. As far directions 2, 3 and 4 are concerned since the action has been adjudged to be valid, therefore, there is no occasion for issuing such directions. In the end it was prayed for a direction to S.H.O. to register a case. The petitioner< have a remedy by way of private complaint, as already noted, therefore, they arc not entitled to any relief in this behalf.

19. The result is that there is no merit in this petition. The same is dismissed with costs. SA./R-193/L Petition dismissed.