1989 PLP 853 (MLD)

Sardar Muhammad Ishaq for Petitioner. Abdul Hafeez for the State. Date of hearing: 12th March, 1989. By this common judgment, I intend to dispose of the above two quashment proceedings. In both of them identical notices under section 133, Cr.P.C. have been impugned. Both the notices are d#ted 27‑8‑1988 whereby the petitioner has been directed to close and stop functioning the well forthwith and show cause and submit written statement within 15 days of the receipt of the notice.

2. The contention of Mr. Sardar Muhammad Ishaq learned counsel for the petitioner is that the above notices in fact amount to passing of a final order in terms of section 137, Cr.P.C. and not a conditional order in terms of section 133, Cr.P.C. Reliance has been placed on the case of Haji Ali Muhammad Mir v. Abdul Aziz Qureshi reported in P L D 1981 Azad J&K 7, wherein learned Acting Chief Justice has held that a final order be passed without show‑cause notice and that an order under section 133, Cr.P.C. must be conditional and not absolute in the first instance. On the other hand Mr Abdul Hafeez Lakho learned Advocate‑General appearing on Court notice for the State has submitted that the factum that the water in the well is contaminated is not denied and that the impugned notices are in fact conditional notices under section 133, Cr.P.C. inasmuch as the applicants have been given opportunity to appear and to contest the notices by filing written statement. He has placed reliance on the case of Lal Din v. The State and 2 others reported in 1987 P Cr. L J 263, in which a learned Single Judge of this Court has held that the fact that the Magistrate ordered stopping of alleged public nuisance under a notice under section 133, Cr.P.C. does not amount to a final order.

3. I am inclined to hold that to the extent of giving direction to close the well, an objection to the notice can be taken but the direction to stop the functioning of the said well for the public good in order to avoid the consumption of water which is not fit for human consumption can be supported and maintained under section 133, Cr.P.C. particularly keeping in view that in the impugned notices the petitioners have been given opportunity to appear and to contest the notices. However, it has been contended by Mr. Sardar Muhammad Ishaq that the petitioners do not allow the sale of water for human consumption but the sale is made for use of the water for construction purposes. In my view, this is a question of fact which will have to be inquired into by the learned Magistrate in response to the filing of written statement by the petitioners.

4. I would, therefore, dispose of the above two criminal miscellaneous applications with the modification that the direction to close the well is quashed and the direction to stop functioning of the well is maintained. The learned Magistrate will dispose of the show‑cause notice after providing reasonable opportunity to the petitioners to lead evidence in rebuttal to the show‑cause notices. H.B.T./C‑77/K Order accordingly.