1999SCMR2618 (PLP)

ABDUR REHAM KHAN, J.

This petition has been filed to allow the petitioners to prefer appeal against the order of a learned Judge of the High Court dated 29-9-1998; whereby petition under section 561-A, Cr.P.C., moved by the petitioners impugning the legality of the concurrent orders of the learned Magistrate and Sessions Judge, was rejected.

2. The learned area Executive Magistrate was approached by respondent No. l with an application purportedly under section 133, Cr.P.C, for removal of the obstruction caused by the petitioners/respondents in a public way used by the residents of village Chak No.17/S.P. The Executive Magistrate after being satisfied of the existence of public thoroughfare and the obstruction therein by the petitioners/respondents from the evidence recorded by -him, passed a conditional order on 29-4-1998 directing the respondents "to clear the way of all obstructions within three days and not to deter the appellants from using the way. In case they have any objection, they may appear in this Court to record their objection within three days of receipt of this order, failing which the order shall become absolute. Tehsildar Pakpattan will cause service of this order upon the respondents namely Muhammad Ramzan, M. Hussain, Riaz and Yasin sons of Muhammad Yousaf R/o 18.S.P".

3. The petitioners/ respondents, however, did not appear to contest the conditional order and consequently, by order dated 9-5-1998 the conditional order was made absolute/final. The legality of this order was challenged in revision before the learned Sessions Judge and through a petition under section 561-A, Cr.P.C. before the High Court, but in vain.

4. The learned counsel appearing for the petitioners stressed that there was no thoroughfare in the fields of the petitioners and even in case it was there, that being not a public way would not attract the provisions of section 133, Cr.P.C. and as such the conditional order and all other subsequent orders stood vitiated on this count. He relied on Muhammad Shuaib and others v. Sessions Judge, Swat and others (1994 SCMR 665) to support his view point. It is, however, to be noted that the petitioners failed to contest the conditional order by which they had been directed to remove the nuisance/obstruction within three days or appear and submit objection to this order. It is also important to note that all the petitioners are brothers and one of them i.e. Muhammad Hussain admitted the existence of the path and its use by the applicants for the last 20/25 years. It is also admitted position that the petitioners have filed civil suit for the relief they "dare seeking in the present proceedings. The rule laid down in 1994 SCMR 665 is not applicable as that case proceeded on different facts than those of the instant case. No justification could be made out for interference in the concurrent orders of all the three competent Courts. Leave is refused and petition is dismissed. N.H.Q./M-253/SC Leave refused.