1989 P Cr (PLP)

Abdul Hamid v. Ahmad Hanif and 2 others 1980 P Cr. L J 905 rel. Fazal Haleem for Petitioners. Mian Muhammad Ajmal, Addl. A.‑G. for the State. Fawad Khan for the Complainant. Date of hearing: 19th August, 1989. Khanimullah, respondent, No.2, submitted a complaint under section 133, Cr.P.C. against Azam Khan and Jan Khan petitioners in the Court of Illaqa Magistrate wherein he mentioned that there was an old thoroughfare in the village which was being used by the people of the village as a path but the petitioners herein had dug a ditch and obstructed the path and requested the Magistrate for action under section 133, Cr.P.C. This complaint was made on 29‑10‑1986. The learned Magistrate referred the same to S.H.O. Police Station Umarzai for necessary action and report. The S.H.O. submitted a report on 22‑11‑1986, wherein he confirmed all the contents of the aforesaid complaint and also drafted his own complaint under section 133, Cr.P.C. and submitted the same to the Magistrate for proceeding against the petitioners herein. The learned Magistrate recorded evidence of the parties and also sent a local Commissioner to the spot and finding that the petitioners herein had obstructed the path directed them by order, dated 10‑7‑1988 to remove the obstruction within seven days. Feeling aggrieved by the aforesaid order the petitioners filed a revision petition before the learned Additional Sessions Judge, Charsadda but the same was also dismissed on 10‑4‑1989. Still feeling aggrieved the petitioners have come up to this Court with the petition under section 561‑A, Cr.P.C. .

2. I have heard learned counsel for the parties and perused the record with their assistance.

3. The facts which came to light during the proceedings are that the path whereupon the petitioners had allegedly erected an obstruction belonged to the District Council and it was being used a path by all the inhabitants of the village. The evidence recorded by the learned Magistrate and the report of the Local Commissioner indicate that this path was amalgamated in the land of the petitioners a long time ago and they had planted fruit trees therein. The obstruction to the path was not of recent origin. It could also not be ascertained as how much area of the path was amalgamated in the lands of the petitioners and whether such amalgamation and obstruction in the way of the public to use this path was intentional. It is also worth noting that only one person out of the whole population of the village complained of the alleged obstruction.

4. Since the alleged obstruction took place a long time before the I institution of the complaint, it could not be removed by an action under section 133, Cr.P.C. Actually it was more a case of demarcation rather than removal of obstruction. The matter of an obstruction of a long‑standing had come up before the Lahore High Court in the case of Baisakhi Ram and others v. Emperor A I R 1930 Lah. 361 and Emperor v. Tulsi Ram A I R 1938 Lah.

523. In the former case' it was held that section 133 was not intended for long‑standing obstruction but for an unlawful obstruction lately built‑in a public place, whereas in the latter case it was held as under:‑ "Section 133. is not intended for long‑standing obstruction but for an unlawful obstruction lately built in a public place. It is only on proof of urgency or imminent danger to the public that action under section 133 can be taken and the provision of section 133 should not be allowed to used as a substitute for litigation in Civil Courts. Chapter 10 of the Code deals with public nuisances and provides a speedy and summary method for dealing with them, in cases of great emergency and where there is imminent danger to public interest. Where an obstruction has been allowed to stand in a public place without objection for many years, the, fact indicates there is, no such emergency or imminent danger to the public interest. The existence of a long‑standing obstruction cannot, therefore, without proof of something having recently happened be considered to be a public nuisance."

5. Since the alleged obstruction appears to be more a case of demarcation, the matter in dispute was of a civil nature and the learned Magistrate should nor have exercised jurisdiction under section 133, Cr.P.C. and should have referred the parties to approach the Civil Court for demarcation or other appropriate proceedings. The learned Additional Sessions Judge also failed to appreciate this position. In this connection I draw benefit from a judgment of this Court made in the case of Abdul Hamid v. Ahmad Hanif and 2 others 1980 P Cr. L J 905.

6. The upshot of the above discussion is that the matter in dispute between the parties was not a case of obstruction of path but rather a matter of demarcation and although the order of the learned Magistrate was upheld in revision by the learned Additional Sessions Judge but since both the orders were made by abuse of process of Court, interference by the High Court in exercise of its inherent powers under section 561‑A, Cr.P.C. appears to be necessary and appropriate. In this connection reference may be made to the case of Allah Ditta v. Muhammad Akbar 1985 P Cr. L J 3002.

7. For the aforesaid reasons I will accept this petition and set aside the p impugned orders of the learned Magistrate and the learned Additional Sessions Judge. However, this order shall not operate as a bar against any party for any l action in a Civil Court. N.H.Q./882/P Petition accepted.