P L D 1963 (W (PLP)

is injurious to the health or physical comfort of the community and that in consequence such trade or occupation should be prohibited or * * * * * * * * * * * * * that any building * * * or structure * * * is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair * * * of such structure is necessary such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation * * * * or owing, possession or controlling such building * * * structure * * * within a time to be fixed in the order, to remove such obstruction or nuisance ; or to desist from carrying on, * * * such trade or occupation ; or * * * * * * * * * * * * * * * * * * * * * * * * or, if he objects to do so, to appear before himself or some other Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided." It will, therefore, be seen that the order which could be made absolute according to sections 136, 137 and 139 of the Code did not exist at all in this case. The impugned order was made in utter disregard of the provisions of law and as such cannot be sustained.

5. The complaint filed under section 188, P. P. Code is also not maintainable. Mudai respondent filed the complaint under section 188, P. P. Code against Bahadur and others in the Court of Mr. Muhammad Aziz‑ud‑Din, Magistrate 1st Class, whose order they had disobeyed, and the learned Magistrate, without taking the trouble of looking into the Code of Criminal Procedure, summoned Bahadur and his co‑accused and decided to proceed against them. Had the learned Magistrate locked up section 195 of the Code of Criminal Procedure, he would have realised that a complaint under section 188, P. P. Code by Mudai respondent was not competent. Section 195 (1) (a) reads as below :‑ "No Court shall take cognizance :‑ (a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writ ing of the public servant concerned, or of some outer public servant to whom he is subordinate." It is thus clear that the complaint under section 188, P, p. Code for disobedience of the order ought to have been made by the Magistrate concerned and not by Mudai respondent. Even if the complaint filed by Mudai is treated as an information, the learned Magistrate was precluded from proceeding against gahadur and others in view of the provisions of section 190 (1) (c), read with the provisions of section 191, Cr. P. Code, which are re produced below for the sake of convenience :‑ "190.‑(1) Except as hereinafter provided, any Magistrate or Sub‑Divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence‑ (a) * * * * * * * * * (b) * * * * * * * * * (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed." "191.‑When a Magistrate takes cognizance of an offence under subsection (1), clause (c) of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate." The learned Magistrate, therefore, acted entirely without jurisdic tion when he decided to proceed against Bahadur and others under section 188, P. P. Code in the absence of a valid complaint and the continuance of the proceedings against the petitioner and his co‑accused as a result of the complaint filed against them is nothing short of an abuse of the process of the Court.

5. For all these reasons the order passed by the learned Magistrate in the proceedings under section 133, Cr. P, Code on the 24th of July 1961, and the proceedings pending against Bahadur and others as a result of the complaint filed by the respondent under section 188, P. P. Code against them are ordered to be quashed. K. B. A. Proceedings quashed.