P L D 1969 Lahore 680 (PLP)

(b) Since it is proved that the nuisance of stench, bad odour, and consequently the accumulation of kites, vultures, and stray dogs exists due to the huge stocks of bones in the factory, for the storage of which there is no adequate arrangement and because of the fact that the city's one of the biggest hospital is situate only at a distance of about two furlongs from the Bone Crushing Factory's site, which nuisance is injurious to the health and physical comfort of the community in general and the staff and the patients in the hospital in particular the respondents may be ordered to remove the goods‑merchandise within a specified time to the satisfaction of Medical Officer of Health, so that the entire locality in general and the members of the Hospital in particular are saved of the consequent effects and dangers of the existing nuisance. (Sd.) 15‑7-67.????????????????????????????????????????????????????????????????????? District Magistrate (A), Lahore. Khawaja Muhammad Afzal for the State. Ghulam Bari Saleemi for Respondents. There is a bone crushing factory named "Crushing Pakistan Limited" near Railway Station Kot Lakhpat, Lahore, at a distance of about one furlong from Lahore General Hospital, Nurses Home and residential quarters. Doctor A. H. Khokhar, Medical Officer of Health, Lahore Municipal Corporation (P. W. 2), on 8th June 1964, sent a complaint to the Director Health Service, Lahore Region, Lahore, against the bone-?crushing factory, alleging that the stench and bad odour that spread from the bones and the bone crushing etc. were great nuisance not only for factories situated around the Bone Crushing Factory, but also for the Staff of the Lahore General Hospital as well as the patients. He also made several other allegations. He prayed that the factory be closed under section 144, Cr. P. C. The Station House Officer, Ichhra decided that action could only be taken against the factory under section.133, Cr. P. C. and accordingly filed complaint Exh. P. A./1 against five persons, namely, Mr. N. A. Farooqi, Manager, Shiekh Muhammad Hussain, Mr. Liner, Mrs. Liner and Mr. Habday, partners in that factory, in the Court of Ilaqa Magistrate. This matter came up before the Magistrate on 26th January 1966 and he ordered that the respondents should be served for 8th February 1966. On that date only respondents Nos. 1 and 2 were present, while the others were absent. He directed that the remaining be summoned for 14th February 1966. On that date the Magistrate passed the order that the three respondents (absent on the previous hearing) were not present and that the proceedings should start and the P. Ws. be summoned for 5th March 1966. Thereafter the Magistrate recorded the evidence of the prosecution witnesses as well as that of the respondents Nos. 1 and 2 and passed the order to the effect that the allegations against the factory were not proved within the provisions of section 133, Cr. P. C. but only to the extent that the defect pointed out by the Medical Officer of the Health should be removed and the sanitary situation should be improved and precautions should be taken that the stock of the bones which was piled does not spread bad odour and foul smell. Against that order the District Magistrate (Additional), Lahore acting under section 438, Cr. P. C. made a reference to this Court, with the following recommendations: (1) That the order of the learned Magistrate is against the requirements of law and, therefore, it may be set aside; and (2) that since it is proved that the nuisance of stench, bad odour, and consequently the accumulation of kites, vultures, and stray dogs exists due to the huge stocks of bones in the factory, for the storage of which there is no adequate arrangement and because of the fact that the city's one of the biggest hospital is situate only at a distance of about two furlongs from the Bone Crushing Factory's site which nuisance is injurious to the health and Physical comfort of the community in general and the staff and the patients in the hospital in particular the respondents may be ordered to remove the goods‑merchandise within a specified time to the satisfaction of Medical Officer of Health, so that the entire locality in general and the members of the hospital in particular are saved of the consequent effects and dangers of the existing nuisance.

2. The learned counsel for the respondents argued that the proceedings before the learned Magistrate were illegal because the three respondents, namely, Mr. Liner, Mrs. Liner and Mr. Habday, who are also partners in the factory, were not summoned during the whole of the proceedings. From the record I find that the Magistrate on 14th February 1968 finding that the afore‑mentioned respondents were not present passed an order that the proceeding should start and the P. Ws. be summoned for 5th March 1968 and after that he started recording the prosecution evidence. There is nothing on the record to show that summons were ever issued to these three respondents and if so, whether they were served or not. From the perusal of the first three lines of the order of the learned Magistrate I find that the Magistrate was under the impression that the complaint was only against the two respondents, namely, Mr. N. A. Farooqi and Shiekh Muhammad Hussain and not against the other three respondents. This is factually incorrect as is evident from the complaint Exh. P. B./1 on the basis of which the proceedings were taken. The learned counsel for the respondents also contended that the learned Magistrate did not make a conditional order as required by subsection (1) of section 133, Cr. P. C., which reads as under:‑ "Whenever a District Magistrate, Sub‑Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, or that the conduct of any trade or occupation.??? .?????????? .?????????? .?????????? .?????????? .??????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .??????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .??????????? .?????????? 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." Thus it will be seen that the order which could be made absolute according to sections 136, 137 and 139 of the Code of Criminal Procedure did not exist at all and the impugned order was made in utter disregard of the provisions of law and as such cannot be sustained. In case Hayat Gul v. Gul Zamir (P L D 1966 Pesh. 9), the same view was taken. ,

7. In the result the impugned order of the learned trial Magistrate dated 2nd August 1966 is hereby set aside. The reference is accepted to the above extent only. S. Q. ??????????? Reference partly accepted.