P L D 2012 Peshawar 167 (PLP)

MIAN FASIH-UL-MULK, J-. This petition under section 561-A Cr.P.C. is moved against the order of learned Additional Sessions Judge Chakdara dated 3-5-2011, whereby he, while accepting the revision petition of respondents Nos.1 to 4 reversed the findings of learned Judicial Magistrate, Chakdara dated 28-10-2011, whereby he had dismissed the complaint of respondents under section 133, Cr.P.C.

2. Brief facts of the case are that respondents Nos.1 to 4 filed a complaint under section 133, Cr.P.C. against petitioner to the effect that they were using the path. at Karhtangey for the last about 12 years for approaching to their houses but after construction of a new road, the petitioner has forcefully blocked the road near his fields by making it part of his lands. It was further alleged that the newly constructed road is not much useful to them than the old one.

3. The learned Judicial Magistrate proceeded with the complaint and after obtaining report from the local police, petitioner was summoned, who contested the complaint. Out of four respondents, respondent No.1 appeared and recorded his statement as PW-1. In cross-examination he admitted that the new road is nearer to his house than the old road and that he had already filed a civil suit in this regard but the same was dismissed. The next witness produced by respondent is Ghulam Muhammad. This witness too admitted the fact that the new road constructed by Government is near to the house of respondent No.1 but the house of respondent No.1 being situated at a height of 10/12 feet, he cannot easily make approach to his house. He also admitted the filing of a civil suit by respondent No.1 against petitioner. The brother of respondent No.1 appeared as P.W.3 and supported the version of respondents. Fazal Qadir: IHC recorded his statement as P.W.4 and brought on record the site-plan, Exh.P.W.4/1, as well as statements of witnesses, Exh. P.W.4/2, recorded by him under section 161 Cr.P.C

4. After close of respondents' evidence, petitioner recorded his statement as DW-3, wherein he disclosed that he is owner of landed property in the area since his forefathers whereas respondent No.1 is owner of property by purchase; that every owner of land had made way in their fields for transit of tractors and thrashers to their fields and no permanent road was present; that as a result of meeting of inhabitants of Karhtangey with Senator Gul Nasib Khan, funds were approved for the construction of a metalled road and every owner of property was asked to give land without any opposition, to which the landowners agreed; that after construction of said road, the temporary kacha road became useless and every owner having lands near said road included the road in their lands; and that the new road constructed by Government is easily approachable to all the inhabitants of the area including respondents. Petitioner also produced Bakhtiar Khan as D.W.1, who supported the stance of petitioner and stated that the said constructed road by Government is in existence for the last about six years, which is easily approachable to all the inhabitants of the area. D.W.2 Salahuddin in his statement also affirmed the contention of petitioner. 4-A. From the above evidence of parties, it is evident that a new 'pacca' road, wide than the old one, was constructed by the Government for the last about six years, which is easily approachable to all the inhabitants of the area. The respondents themselves admit that the new road is near to their houses than the old road but their apprehension is that their house is at some height from the new road, hence no vehicle can come up to their house. But the important aspect of the case, as to whether the old 'kacha' road was a public path or private one, has not been, established on record, rather the complaint filed by respondent No.1 alone in an individual capacity without other inhabitants or land-owners of the area denotes the fact that same was not a public road but made by the nearby landowners for approaching their lands.

5. So far as the applicability of section 133, Cr.P.C. to the instant case is concerned, support can be held from the judgment of this Court delivered by a Hon'ble Bench in the case of Mst. Sakina v. Habibur-Rahman (PLD 1968 Peshawar 21) wherein it has been laid down that:-- "Section 133 empowers the Magistrate to order the removal of an obstruction from any way or from any public place and before it can be applied, there must be a finding that the construction in question is situated on a way which may be lawfully used for the public, or on a public place.......Whatever the rights of the two parties may be, it is clear that their dispute is a question of private rights and has nothing to do with section 133, Cr.P.C." The facts of above case, on all fours, are applicable to the facts of instant case, wherein too the aim of respondents was to enforce their individual rights by making resort to the provisions of section 133 of the Criminal Procedure Code.

6. It may also be observed that although every person is bound to so use his property that it may not inflict legal damage or harm to his neighbour yet on the other hand, no one has a right to interfere with the free and full enjoyment of his property by such other person, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Proceedings under section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of sections 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specifically provided in the former section is taken out of the general provisions of the latter section. The proceedings under section 133, Cr.P.C. being more in the nature of civil proceedings than of criminal nature, the exercise of power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under section 133, Cr.P.C. are not intended to settle private disputes or a substitute to settle civil disputes though proceedings under section 133 are more in the nature of civil proceedings in a summary nature. As per evidence on record, the new road was constructed about six years back; hence on this count too no action can be taken when the obstruction has been in existence for a long period and section 133, Cr.P.C. is attracted only in case of emergency and imminent danger.

7. A conjoint reading of all the evidence including oral and documentary would clearly show that the old path was in existence for the last 10/12 years whereas the new road was constructed about six years back whereas it is not disclosed either in the complaint itself or in the evidence of respondents as to when the alleged obstruction was made by petitioner, therefore, there was no occasion for the respondents to have invoked the emergency power under section 133, Cr.P.C. In any event, the dispute between the parties is not coming within the ambit of section 133, Cr.P.C. and the learned revisional Court has erred in setting aside the order of learned Judicial Magistrate, being based on proper appraisal of the evidence on record.

8. Accordingly, while accepting instant petition, this Court would set aside the impugned order of revisional Court and would restore that of the Judicial Magistrate. Order accordingly. M.W.A./197/P Petition allowe