Through this writ petition, the petitioner Ghulam Sughra assails the vires of order dated 22.09.2016 passed by learned Additional Sessions Judge Jhelum whereby he dismissed the revision petition against the order dated 28.06.2016 passed by learned Magistrate 1st Class Jhelurn.
2. Brief facts of the case are that Respondent No. 5/applicant filed application u/S. 1.33 Cr.PC. before learned Area Magistrate Police Station Saddar Jhelum, that the street under the use of present petitioner belongs to T.M.A.
Jhelum and is a public way and the same is adjacent to his residential house, which has been blocked by the petitioner since June 2014, creating publi c nuisance. Learned Magistrate after hearing both the parties allowed the said application and ordered the petition er to remove obstruction/metal gate. Aggrieved by the said order the petitioner filed revision petition before the learned Additional Sessions Judge which was dismissed as mentioned above. Hence this writ petition.
3. Learned counsel for the petitioner contends that that the impugned orders are against the law and facts; that the same have been passed without observing Section 139-A Cr.P.C; that the learned Courts below did not apply judicial mind while passing the impugned orders; that civil litigation was already pending adjudication between the parties; that Respondent No. 5 has nothing to do with the property owned and possessed by the petitioner; that even Respondents No. 1 to 4 failed to perform their legal duty under the law .
4. On the other hand learned counsel for Respondent No. 5 has opposed the contentions raised by learned counsel for the petitioner on the ground that the Courts below have concurrently decided the issue against the petitioner and passed well reasoned orders, which need no interference by this Court in exercise of constitutional jurisdiction.
5. I have heard the learned counsel for the parties and gone through the documen ts appended with this petition.
Record reveals that Respondent No. 5 filed application u/S. 133, Cr.P.C. before learned Area Magistrate Police Station Saddar Jhelum, alleging there that he is resident of Mohalla Haidry Block-D Bilal Town Jhelum and the street under the use of Mst. Sughra Bibi, petitioner , belongs to T.M.A. Jhelum and she installed an iron gate there, hence since June 2014 a public nuisance has been created. Learned Magistrate after hearing both the parties allowed the said application and ordered the petitioner to remove obstruction/metal gate and revision petition filed by the with permanent injunction filed by present petitioner and legal heirs of her husband Raja Azmat Ullah, regarding the property is pending adjudication before the Civil Court and the said Court after obtaining the documentary and oral evidence will be in better position to decided the controversial issue and regulate the same in accordance with law and the application u/S. 133 Cr.P.C. was not maintainable and the learned Magistrate was debarred from issuing any direction. See Dr. Karamat Hussain vs. Shams-ud-Din and 5 others (2013 P .Cr.L.J.
1076).
6. The nutshell of the above discussion is that this writ petition is allowed and the impugned orders dated 28.06.2016 and 22.09.2016 passed by the Courts below are set aside.