P L D 1966 (W (PLP)

Nemat Khan for A.‑G. for the State. Date of hearing: 22nd April 1966. This revision petition is directed against the order of the Additional District Magistrate, Rawalpindi, passed by him on the 1st of April 1966, in. the following terms: "Whereas there is ever‑increasing flow of traffic on various public roads in the Municipal Cantonment Limits of Rawalpindi. And whereas the location of certain petrol pumps on the Asghar Mall, Murree Road and Dalhousie Road, is causing serious hinderance to the smooth flow of traffic on these roads and their continuance in their present sites is dangerous to human life and public safety. . . . . . . . . . . . . On the ground it was found necessary to draw up proceedings under section 144 of the Code of Criminal Procedure against seven firms and commission agents of different Companies. The order of prohibiting the petrol dealers from working at their premises was made absolute for a period of two months from the 1st of April 1966.

2. The learned counsel for the petitioners stated at the bar that an application was made by the petitioners to the Additional District Magistrate and rescission of the order was prayed for. The petitioners were verbally directed to approach the District Magistrate who gave a grace period of 15 days to the petitioners.

3. Notice to the State was issued and the operation of the impugned order was stayed by this Court on the 8th of April 1966. The case was adjourned for the reason that the learned counsel for the State had received no instructions from the Government. The matter came up before me for final disposal on 22‑4‑66 in the presence of the learned counsel for both the parties.

4. The learned counsel for the petitioners raised inter alia the following contentions: That no order in accordance with the provision of subsection (5) of section 144 was passed by the learned Additional District Magistrate on the application made by the petitioners. The learned counsel for the State did not meet the objection, thus it follows that the matter did not proceed in strict observance to the provision of the section which is mandatory. It is further contended by the learned counsel that action under section 144, Criminal Procedure Code prohibiting the petitioners from their business for a period of two months is bad in law inas much as the section contemplates temporary orders in urgent condition and that the impugned order does not specify any urgency of the matter. Whether or not the conditions justified an action for the removal of the hinderances is a different affair but the point before me in the instant case. for determination is the manner in which the 'problem is approached. Danger to the smooth flow of traffic is due to the location of the particular petrol pumps but the order is aimed at prohibiting the petitioners from running their business at the premises of the pumps. If the petrol pumps are not removed. by the owners, by the time the order dies of its natural death ; its object is liable to be defeated. There being no indication that the petrol pumps shall automatically dis appear from their respective premises before the impugned order expires, the result obviously appears that no useful purpose will be served.‑The Magistrate assume jurisdiction under this section with a view to eradicate the danger, and if the prospects of the object in view are not promising, why not efficacious remedy should have been availed of. Courts, civil as well as criminal, exist for the protection of the rights of private individuals, and, therefore, the authority of a Magistrate under this section should ordinarily be exercised in defence of such rights rather than in their suppression. It is fully realised that private rights must give way .in a measure to public tranquillity, but the section contemplates temporary suppression of private rights, and not permanent ones. An order suppressing legal rights under this section, though evidently temporary, ought not, to be made unless such action is considered absolutely necessary, and at the same time adequate or sufficient remedy is not available. The order under this section should be as far as possible commensurate to the emergency of any part cular situation and should never be cloaked to achieve an object nor envisaged by the provisions of the section.

5. In view of the above observations, I do not think it necessary to advert to the other contentions raised by the learned counsel put before me in his arguments. Accordingly, while making this rule absolute, I set aside the order dated the 1st of April 1966, passed by the learned Additional District Magistrate, Rawalpindi, and quash the proceedings pursuant to the order against the petitioners.

6. The revision is accepted. K. B. A. Petition accepted.