2012 Y L R 2379
[Balochistan]
Before Abdul Qadir Mengal, J
ABDUL SALAM KHAN and another ---Applicants
Versus
MUHAMMAD YAQOOB BANGULZAI and another ---Respondents
Review Application No.5 of 2012, decided on 29th June, 2012.
Criminal Procedure Code (V of 1898) ---
----Ss. 133 & 561 -A---Conditional order for removal of nuisance --Legality --Quashment
proceedings --- Magistrate making order under section 133, Cr. P. C, directing public health
official (respondent) a nd his staff to continuously supply water to the people of an area and
its suburbs and to furnish a surety in the sum of Rs. 200,000, which would be forfeited in
case of failure to supply the water ---Public health official and his department impugned said
order of Magistrate contending that he did not have any jurisdiction under S. 133, Cr. P. C, to
bind a department for continuous supply of water irrespective of whether any such facility
was available to the department ---Order of Magistrate was set aside b y the High Court on the
grounds that Magistrate failed to understand the object of S. 133, Cr.P.C, and that the order
was an abuse of the process of law ---Contentions of the complainant (applicant) were that
public health official had approached the High C ourt directly under S. 561 -A, Cr.P.C, to set
aside the order of the Magistrate and complainant . had no knowledge of the same, and that
the complainant was a necessary party in the matter but was not heard by the High Court ---
Validity ---No defect was seen in the judgment of the High Court ---Non-associating the
comp lainant in the impugned judgment did not violate any of his rights as it was the public
health official who was aggrieved of the Magistrate's order and accordingly the State had
been made a party in the impugned judgment ---High Court had taken cognizance of the
matter under S.561 -A, Cr. P. C, to save the ends of justice and such order could be passed to
prevent a wrong or the abuse of the process of law ---Application was dismiss sed, in
circumstan ces.
2000 PCr.LJ 1516; 1999 PCr.LJ 771 and Haji Abdul Aziz v. Haji. Dost Muhammad and
others 1999 PCr.LJ 31 ref.
2000 MLD 1935 distinguished.
Manzoor Ahmed Rehmani for Applicants.
Naseebullah Achakzai, for Respondent.
Haji Liaquat Ali for the Sta te.
Date of hearing: 22nd June, 2012.
JUDGMENT
ABDUL QADIR MENGAL, J --This review application has been filed against the judgment
dated 12th September, 2011, whereby the proceedings initiated by the Judicial Magistrate
Sanjavi under section 133, Cr .P.C. were quashed by setting aside the order of Judicial
Magistrate, Sanjavi dated 15th April, 2011.
2. The facts for filing of the present review petition are that respondent No.1 filed a
Quashment application under section 561 -A, Cr.P.C. against the o rder of Judicial Magistrate
dated 15th April, 2011, wherein that the Judicial Magistrate has ordered the applicant and his
staff working in the Public Health Department, to continuously supply water to the people of
the Sanjavi bazaar and its suburbs and b y this order the each of the concerned officials of the
department also was directed to furnish surety in the sum of Rs.200,000 (Rupees Two Lakhs
only) to not fail in supplying water continuously to the people of Sanjavi. In failure the
respondent and his staff would make them liable for forfeiture of their surety bond amount,
which they had to furnish for continuous supply of water.
3. This court vide its judgment dated 12th September, 2011 while discussing the wires of
section 133, Cr.P.C. has held as u nder:
"It appears that the Judicial Magistrate has utterly failed to understand the object of
the section 133, Cr.P.C, which is only related to unlawful obstruction, raised or
created on any way, river or channel, which is lawfully used by the public, or any
such trade, occupation, which is injurious to the health or physical comfort of the
community. Again the Magistrate could remove any structure/tree or stop any
excavation of tank, well, which is danger to the public. Furthermore, this section is
also related about removal of such nuisances in respect of public places, but here in
the present matter the Magistrate has used his authority in a colourable exercise,
which is not authorized by the law under which the action is taken. The action of the
Magist rate is nothing but an abuse of the process of law".
4. Heard Mr. Manzoor Ahmed Rehmani, Advocate for the applicant/ complainant, while Mr.
Naseebullah Khan Achakzai for respondent and Haji Liaquat Ali for State.
5. Learned counsel for the applicant wh ile arguing the review application relied on several
judgments that this court has jurisdiction to interfere his own judgment, on observing that the
related judgment was passed without jurisdiction or obtained playing fraud with the court or
has been passe d in violation of any law. In this connection he argued that as the respondent
has approached the court directly under section 561 -A, Cr.P.C. as such, for that complainant
side had no knowledge, therefore, the respondent side has obtained the judgment in q uestion
playing fraud upon the court or concealment of the facts. In this respect learned counsel relied
on 2000 PCr.LJ 1516 and 1799 PCr.LJ 771.
Learned counsel further quoted 2000 MLD 1935, stating that this court had ho jurisdiction to
pass any order under section 561 -A, Cr.P.C. where the trial court took the cognizance of a
case and summoned the parties. The relevant case law reads as under:
Criminal Procedure Code (V of 1898) --- "----S. 173 ---Penal Code (XLV of 1860),
Ss.302/148/149 ---Constitution of Pakistan (1973), Art.199 ---Constitutional petition ---
Discharge of accused on police report by Trial Court after taking cognizance of the
case---Validity --Trial Court had initially summoned all the accused and distributed
the necessary copies of statemen ts to them with a view to conduct the trial ---Case had
also been fixed for framing of the charge ---Court did not choose to await submission
of the complete challan and it consciously proceeded to commence the trial on the
basis of the interim report ---Trial Court, thus, had already taken cognizance of the
offence and it was no longer open to it to entertain a fresh police report and discharge
the accused ---Impugned order was consequently set aside with the direction to Trial
Court to proceed with the trial of all the accused including the discharged accused in
accordance with law. "
Again learned counsel contended that the applicant was the necessary party in the present
matter, but he was not heard by this court, whereas under section 133, Cr.P.C. Magistr ate had
full power to pass such order. In this connection learned counsel relied on case of Haji Abdul
Aziz v. Haji Dost Muhammad and others' which is reported in PCr.LJ 1999 at Page 31.
"(b) Criminal Procedure Code (V of 1898) ---S. 133 ---Removal of nuis ance---
Principles and guidelines for the exercise of power under 5.133, Cr.P.C. stated.
Section 133 of the Code of Criminal Procedure gives the power to Magistrates
for removal of a nuisance including the power to prohibit the conduct of any trade or
occupation or the keeping of any goods or merchandise which is injurious to the
health or physical comfort of the community and also gives the power , for the removal
of such trade or occupation. However, while exercising powers under Chapter X of
the Code of Criminal Procedure dealing with public nuisances, the Magistrates have
to exercise their power by observing the rules of natural justice and the principles of
audi alteram partem by giving necessary notice to all the parties concerned and
hearing their gr ievance."
7. While the learned counsel for the respondent No.1 arguing the matter stated that this Court
rightly has quashed an order which was abuse of the administration of the justice and there
was no jurisdiction to the Judicial Magistrate to pass an y order under section 133, Cr.P.C. to
bound down a department for continuous supplying of water irrespective of that whether any
such facility available to the department to continuously supply water to the area of Sanjavi
or otherwise.
8. Learned counse l further argued that the petitioner is not aggrieved party in this matter nor
the same is related to his own grievance, as such, making him not party at the stage of High
Court in no manner treated to be violation of the right of the applicant, whereas th e
respondent was aggrieved from the order of Judicial Magistrate, Sanjavi dated 15th April,
2011, through which the respondent was directed to furnish surety of Rs.200,000 (Rupees
Two Lakhs only) in regard for continuous supply of water to the people of Sa njavi Bazaar,
hence he rightly had approached this Court. As this action of Magistrate being illegal, void
and excess of his powers and same was rightly challenged by the respondent No.1 under
section 561 -A Cr.P.C. and it is incorrect to say that this cour t had no jurisdiction under
section 561 -A, Cr.P.C. to quash any proceeding -or set aright the things which are result of
abuse of process of law or administration of justice. Again if accepting the analogy of learned
counsel for applicant that this court h as no jurisdiction under section 561 -A, Cr.P.C. then it is
not understood why he himself has approached this Court under section 561 -A, Cr.P.C. for
redressal of his grievance.
9. Learned counsel finally argued that as no any concealment of facts has been made nor
counsel is able to point out any fact, which could have not been taken in the judgment in
question. The allegation of the playing fraud upon the court does not arise in the
circumstances of the present case.
10. Haji Liaqauat All, the State cou nsel supported the judgment of this court dated 12th
September, 2011 and stated that this court has passed a proper and sound judgment and
whereas the Magistrate failed to comprehend the nexus of the section 133, Cr.P.C. and has
passed an order which is ut terly in excess of his jurisdiction and a novel one, as such, there is
no any justification to review the judgment dated 12th September, 2011.
11. After hearing both sides, I have also considered the submission of the learned counsel for
the applicant, h owever, in my view the objection which has been raised by the learned
counsel for the applicant has no substance, as there seems no any defect in the judgment of
this court; showing that any fraud has been played by arty party with the court or non -
involvi ng or associating the applicant makes violation of any right in respect of applicant. As
it is the respondent No.1, who aggrieved from the order of trial court, in which he was
directed to furnish surety, whereas, the order of this Court shows that the Sta te was party in
the matter and all the facts properly have been brought on record.
12. Again it may mention that there is no weight in the arguments of the learned counsel that
this court has no jurisdiction to quash any proceedings, although same may be illegal or in
violation of any rule, in this connection the quoted authority 2000 MLD 1935 having no
nexus with the facts of the present matter. In that matter the Hon'ble Bench rightly has 'held
that under Article 199 when the court has taken cognizance of the matter and after framing
charge if has passed an illegal order for that a remedy is available in shape of appeals,
revision. So taking, cognizance under Article 199 in presence of available forum is not
appropriate and falls under the jurisdiction o f this court. Here in present matter this court has
taken cognizance of the matter under section 561 -A, Cr.P.C. just to save end of justice and
such order could be passed under section 561 -A, Cr.P.C. to prevent a wrong or the abuse of
the process of law. T he section 561 -A, Cr.P.C. itself is a explanatory and provides that
nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court
to make such orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise, to secure the ends of justice.
Thus in view of above discussed circumstances, the review application has no weight or
substance, as such, the same is dismissed.
MWA/60/Q Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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