2012 PLP 2379 (YLR)

ABDUL QADIR MENGAL, J--This review application has been filed against the judgment dated 12th September, 2011, whereby the proceedings initiated by the Judicial Magistrate Sanjavi under section 133, Cr.P.C. were quashed by setting aside the order of Judicial Magistrate, Sanjavi dated 15th April, 2011.

2. The facts for filing of the present review petition are that respondent No.1 filed a Quashment application under section 561-A, Cr.P.C. against the order of Judicial Magistrate dated 15th April, 2011, wherein that the Judicial Magistrate has ordered the applicant and his staff working in the Public Health Department, to continuously supply water to the people of the Sanjavi bazaar and its suburbs and by this order the each of the concerned officials of the department also was directed to furnish surety in the sum of Rs.200,000 (Rupees Two Lakhs only) to not fail in supplying water continuously to the people of Sanjavi. In failure the respondent and his staff would make them liable for forfeiture of their surety bond amount, which they had to furnish for continuous supply of water.

3. This court vide its judgment dated 12th September, 2011 while discussing the wires of section 133, Cr.P.C. has held as under: "It appears that the Judicial Magistrate has utterly failed to understand the object of the section 133, Cr.P.C, which is only related to unlawful obstruction, raised or created on any way, river or channel, which is lawfully used by the public, or any such trade, occupation, which is injurious to the health or physical comfort of the community. Again the Magistrate could remove any structure/tree or stop any excavation of tank, well, which is danger to the public. Furthermore, this section is also related about removal of such nuisances in respect of public places, but here in the present matter the Magistrate has used his authority in a colourable exercise, which is not authorized by the law under which the action is taken. The action of the Magistrate is nothing but an abuse of the process of law".

4. Heard Mr. Manzoor Ahmed Rehmani, Advocate for the applicant/ complainant, while Mr. Naseebullah Khan Achakzai for respondent and Haji Liaquat Ali for State.

5. Learned counsel for the applicant while arguing the review application relied on several judgments that this court has jurisdiction to interfere his own judgment, on observing that the related judgment was passed without jurisdiction or obtained playing fraud with the court or has been passed in violation of any law. In this connection he argued that as the respondent has approached the court directly under section 561-A, Cr.P.C. as such, for that complainant side had no knowledge, therefore, the respondent side has obtained the judgment in question playing fraud upon the court or concealment of the facts. In this respect learned counsel relied on 2000 PCr.LJ 1516 and 1799 PCr.LJ

771. Learned counsel further quoted 2000 MLD 1935, stating that this court had ho jurisdiction to pass any order under section 561-A, Cr.P.C. where the trial court took the cognizance of a case and summoned the parties. The relevant case law reads as under: Criminal Procedure Code (V of 1898)

"

S. 173

Penal Code (XLV of 1860), Ss.302/148/149

Constitution of Pakistan (1973), Art.199

Constitutional petition

Discharge of accused on police report by Trial Court after taking cognizance of the case

Validity--Trial Court had initially summoned all the accused and distributed the necessary copies of statements to them with a view to conduct the trial

Case had also been fixed for framing of the charge

Court did not choose to await submission of the complete challan and it consciously proceeded to commence the trial on the basis of the interim report

Trial Court, thus, had already taken cognizance of the offence and it was no longer open to it to entertain a fresh police report and discharge the accused

Impugned order was consequently set aside with the direction to Trial Court to proceed with the trial of all the accused including the discharged accused in accordance with law. " Again learned counsel contended that the applicant was the necessary party in the present matter, but he was not heard by this court, whereas under section 133, Cr.P.C. Magistrate had full power to pass such order. In this connection learned counsel relied on case of Haji Abdul Aziz v. Haji Dost Muhammad and others' which is reported in PCr.LJ 1999 at Page 31. "(b) Criminal Procedure Code (V of 1898)

S. 133

Removal of nuisance

Principles and guidelines for the exercise of power under 5.133, Cr.P.C. stated. Section 133 of the Code of Criminal Procedure gives the power to Magistrates for removal of a nuisance including the power to prohibit the conduct of any trade or occupation or the keeping of any goods or merchandise which is injurious to the health or physical comfort of the community and also gives the power, for the removal of such trade or occupation. However, while exercising powers under Chapter X of the Code of Criminal Procedure dealing with public nuisances, the Magistrates have to exercise their power by observing the rules of natural justice and the principles of audi alteram partem by giving necessary notice to all the parties concerned and hearing their grievance."

7. While the learned counsel for the respondent No.1 arguing the matter stated that this Court rightly has quashed an order which was abuse of the administration of the justice and there was no jurisdiction to the Judicial Magistrate to pass any order under section 133, Cr.P.C. to bound down a department for continuous supplying of water irrespective of that whether any such facility available to the department to continuously supply water to the area of Sanjavi or otherwise.

8. Learned counsel further argued that the petitioner is not aggrieved party in this matter nor the same is related to his own grievance, as such, making him not party at the stage of High Court in no manner treated to be violation of the right of the applicant, whereas the respondent was aggrieved from the order of Judicial Magistrate, Sanjavi dated 15th April, 2011, through which the respondent was directed to furnish surety of Rs.200,000 (Rupees Two Lakhs only) in regard for continuous supply of water to the people of Sanjavi Bazaar, hence he rightly had approached this Court. As this action of Magistrate being illegal, void and excess of his powers and same was rightly challenged by the respondent No.1 under section 561-A Cr.P.C. and it is incorrect to say that this court had no jurisdiction under section 561-A, Cr.P.C. to quash any proceeding -or set aright the things which are result of abuse of process of law or administration of justice. Again if accepting the analogy of learned counsel for applicant that this court has no jurisdiction under section 561-A, Cr.P.C. then it is not understood why he himself has approached this Court under section 561-A, Cr.P.C. for redressal of his grievance.

9. Learned counsel finally argued that as no any concealment of facts has been made nor counsel is able to point out any fact, which could have not been taken in the judgment in question. The allegation of the playing fraud upon the court does not arise in the circumstances of the present case.

10. Haji Liaqauat All, the State counsel supported the judgment of this court dated 12th September, 2011 and stated that this court has passed a proper and sound judgment and whereas the Magistrate failed to comprehend the nexus of the section 133, Cr.P.C. and has passed an order which is utterly in excess of his jurisdiction and a novel one, as such, there is no any justification to review the judgment dated 12th September, 2011.

11. After hearing both sides, I have also considered the submission of the learned counsel for the applicant, however, in my view the objection which has been raised by the learned counsel for the applicant has no substance, as there seems no any defect in the judgment of this court; showing that any fraud has been played by arty party with the court or non-involving or associating the applicant makes violation of any right in respect of applicant. As it is the respondent No.1, who aggrieved from the order of trial court, in which he was directed to furnish surety, whereas, the order of this Court shows that the State was party in the matter and all the facts properly have been brought on record.

12. Again it may mention that there is no weight in the arguments of the learned counsel that this court has no jurisdiction to quash any proceedings, although same may be illegal or in violation of any rule, in this connection the quoted authority 2000 MLD 1935 having no nexus with the facts of the present matter. In that matter the Hon'ble Bench rightly has 'held that under Article 199 when the court has taken cognizance of the matter and after framing charge if has passed an illegal order for that a remedy is available in shape of appeals, revision. So taking, cognizance under Article 199 in presence of available forum is not appropriate and falls under the jurisdiction of this court. Here in present matter this court has taken cognizance of the matter under section 561-A, Cr.P.C. just to save end of justice and such order could be passed under section 561-A, Cr.P.C. to prevent a wrong or the abuse of the process of law. The section 561-A, Cr.P.C. itself is a explanatory and provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise, to secure the ends of justice. Thus in view of above discussed circumstances, the review application has no weight or substance, as such, the same is dismissed. MWA/60/Q Application dismissed.