P L D 1966 (W (PLP)

This reference dated the 7th of July 1965 is made by the learned District Magistrate, Mardan, recommending that the absolute order passed by Mr. Muhammad Jan Khan, Magistrate 1st Class, Mardan dated the 31st March 1965, ordering the respondents Hayat Gul, etc. (now petitioners) to desist from putting up obstruction in the thoroughfare in question and to remove the obstruction existing there within a month of the passing of the order, be quashed.

2. Briefly, the facts of the case, as disclosed at the trial are that a thoroughfare leads from main Swabi Mardan Road to the house of Gul Zamir respondent (complainant in the lower Court) which is also being used by the inhabitants of the locality. It is alleged that the thoroughfare was obstructed by Hayat Gul, etc. by constructing a Wall. A complaint was brought under section 133, Cr. P. C. by Gul Zamir, praying that Hayat Gul, etc. be ordered to desist from putting up the obstruction in the thoroughfare and to remove the obstruction within a month.

3. The record of the trial Court shows that no conditional order as contemplated by section 133, Cr. P. C. was passed by the learned trial Magistrate and he passed the absolute order under section 137, subsection (3), Cr. P. C.

4. Section 133 (1) is in the following terms :‑ "Whenever a District Magistrate, a 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 . . . . . . such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, . . . . . . within a time to be fixed in the order, to remove such obstruction or nuisance, . . . . . . or, if he objects so to do, 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."

5. After passing the conditional order under section 133, Cr. P. C. mentioned above, the Magistrate is then to follow section 139‑A, Cr. P. C. The procedure laid down under that section, where existence of public right is denied is as under :‑ "(1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, if he does so, the Magistrate shall, before proceeding under section 137 or section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court, and, if he finds that there is no such evidence, he shall proceed as laid down in section 137 or section 138, as the case may require."

6. After following the procedure laid down under section 139‑A; Cr. P. C., the Magistrate is then in a position to pass the order under subsection (3) of section 137, Cr. P. C. in the following words :‑ "(3) If the Magistrate is not so satisfied the order shall be made absolute."

7. From the record it is obvious that the learned trial Magistrate has failed to follow the provisions of sections 133 and 139‑A, Cr. P. C., which are mandatory, and in these circumstances the proceedings are vitiated. I, therefore, accept the recommendation, set aside the order of the learned, trial Magistrate and remand the case to him to proceed with it according to law. K.B.A Reference accepted.