Precisely the facts, necessary for the decision of the instant petition in terms of section 561-A Cr.P.C., are that on a complaint moved by Amjad Hussain/ respondent No.15 u/s 133 Cr.P.C for removal of public nuisance by way of closure of unauthorized and illegally operating transport Addas within the precincts of Chakwal City besides removal of encroachments over the roads, the learned Magistrate after receipt of reports from RTA. Secretary Chakwal, TMA Chakwal and DSP Traffic, wherein it has been maintained that besides General Bus Stand, Alliance Travels and Hamsafar Travels, no other bus/wagon stand is sanctioned by the relevant authorities, passed a conditional order dated 30.05.2018 while issuing directions to all the conce rned quarters to close/remove unauthorized stands and illegal encroachments on the roads throughout the city. The petitioner and the private respondents herein, after putting up appe arance in the Court, submitted their respective replies. Subsequently , the petitioner also filed objection before Ilaqa Magistrate questioning his exercise of powers u/s 133 Cr.P.C in the facts and circumstances of the instant case. After considering replies and the other material the learned Magistrate transformed his earlier conditional order dated 30.05.2018 into his final order vide order dated 31.07.2018. Being aggrieved of the aforesaid orders, the petitioner filed criminal revision petition, which the learned Addl. Sessions Judge, Chakwal has dismissed in terms of impugned order dated 02.10.2018. Hence, instant petition.
2. Learned counsel for the petitioner has mainly contended that "the complainant/respondent No.15 due to his business rivalry with the petitioner and other private respondents had moved complaint under section 133 Cr.P.C with mala fide" and that "since the wagon stands have been established on the personal/private properties by their respective owners, the provisions of section 133 Cr.P.C do not attract, in stricto senso, and that the entire edifice built as a result of exercise undertaken by the learned Magistrate u/s 133 Cr.P.C is un-sustainable in the eye of law", therefore, while exercising powers its/ 561-it Cr.P.C., in the interest of justice, the same may be set aside/quashed.
3. Conversely , from the side of private respondents as well as learned DPG, it has been asserted that petitioner and others, without having a valid permit/licence issued by RTA, have established the wagon stands on privately owned properties and as such they have illegally indulged themselves in the business of running these stands/Addas, thus, are entitled to no relief They have also maintained that due to the plying of wagons on roads from the illegally established wagon stands besides traffic congestion, spread of environmental pollution, health hazards to the public at large is being caused which tantamounts to public nuisance, therefore, both the courts below have rightly exercised their jurisd iction u/s 133 Cr.P.C. and 435 Cr.P.C. respectively , Finally , they have prayed for dismissal of instant petition.
4. Heard. Record perused.
5. Article 5 of the Constitution of Islamic Republic of Pakistan 1973, is reproduced hereunder:- Art.5. (1) --------------------
(2) Obedience to the Constitution and law is the (inviolable) obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.
A wagon stand can only be established on the application of a person on fulfillment of certain requirements and conditions after deposit of requisite licence fee in the Govt. Exchequer on the order of the concerned authority; the Regional Transport Authority , after giving a notice to the party concerned can revoke its order , permitting the establishment of any stand, if in its opinion, any of the conditions on which Stand has been permitted, is found to be violated or the stand has not been satisfactorily managed or its continuation is no longer in the public interest .
It can also impose penalty upon the defau lting party . No vehicle is allowed under the rules to be admitted in any D- Class Stands other than vehicle in respect of which a permit has been awarded to a person or a company in whose name Stand has been sanctioned. Any vehicle which has been specially mentioned in Regional Transport Authority's order , is entitled to use the Stand. It is an admitted position in the facts and circumstances of the instant case that the petitioner and other private respondents have established their wagon stands without any permit or lawful authorization issued by the Regional Transport Authority . The above referred Article of the Constitution casts upon every citizen and every other person, for the time being within Pakistan, or wherever he may be, an inviolable obligation for conducting himself in accordance with law. Therefore, in view of the above facts and circumstances, no difficulty is being felt by this Court to hold that the petitioner and others are illegally running the wagon stands, by violating their above referred constitutional obligations. Under Article 9 of the Constitution which reads as under:
9. Security of person. No person shall he deprived of life or liberty save in accordance with law .
In the case reported as Haji MULLAH NOOR ULLAH versus SECRET ARY MINES AND MINERALS and 3 others ( 2015 YLR 2349 ), it has been held as under: "14. The right to 'life' is the most fundamental right as enshrined in Article 9 of the Constitution. Such right includes all attributes of the life. The term 'life' means something more Man mere animal existence. It is a fundamental right of every citizen to live with dignity . Living with dignity would include all those rights, which ensure a person's life as meaningful, complete and worth living. Right to life would also include right to live in peace, to sleep in peace and enjoy health free from pollution. Right to live is a fundamental right under Article 9 of the Constitution and it includes the right of enjoying pollution free air for full enjoyment of life. If anything endanger s or impairs that quality of life in derogation of Laws, a citizen has the right to have recourse to Article 199 of the Constitution for removing that very thing, and polluted air is certainly one of them, for it is detrimental to the quality of life. The Hon'ble Supreme Court of Pakistan in the case "petition regarding miserable condition of the schools": In the matter of Constitutional Petition No.37 of 2012, decided on 22nd November , 2013-reported in 2014 SCMR 396, while interpreting Article 9 of the Constitution observed as under:-- "As far as Article 9 is concerned, the word "life" occurring in said Article has received interpretation in different contexts in a large number of cases decided from time to time and now it is well-settled that the word 'life' cannot be assigned limited meaning and its scope has been enlarged enough to encompass almost each and every aspect of human life."
15. Similarly , the Hon'ble Supreme Court, while interpreting the word 'life' used in Article 9 of the Constitution in the case of "Ms, Shehla Zia v . WAPDA", ( PLD 1994 SC 693 ), held as under:- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law.
The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity , legally and constitutionally ."
Moreover , Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 is also relevant in the instant case, which reads as follows:-
18. Freedom of trade, business or profess ion. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business; Provided that nothing in this Article shall prevent--
(a) The regulation of any trade or profession by a licensing system; or
(b) The regulation of trade, commerce or industry in the interest of free competition therein; or
(c) The carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons.
Judicial consensus regarding the interpretation of Article 18 of the Constitution has emerged that "right of freedom of trade, business or profession is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law. Such right is therefore not unfettered. The regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of right. Even in those countries where the right to enter upon a trade or profession is not expressly subjected to conditions, similar to this Article, it was eventually found that the State has, in exercise of its police power , the authority to subject the right to a system of licensing i.e. to permit a citizen to carry on the trade or profession only if he satisfies the terms and conditions imposed by the prescribed authority for the purposes of protecting and promoting general welfare. Reliance is placed upon case titled Pakcom Limited and others v.
Federation of Pakistan and others (PLD 2011 Supreme Court 44). Thus from the above discussions, it is quite clear that petitioner and others are running wagon stands illegally , without having been granted a valid permit/licence by the competent authorities. It may also be relevant to mention that tinder the relevant Motor Vehicle Rules; for the grant of licence/permit to establish a new wagon stand, prime consideration before the Regional Transport Authority is that no order , causing prejudice to the party who is already running a duly sanctioned wagon stand, shall be passed.
6. The term 'Nuisance' connotes and includes any act, omission, animal or thing which causes or is likely to cause injury , danger , annoyance or offence to the sense of sight, smell or hearing or distu rbance to rest or sleep, or which is or may be dangerous to life or injurious to health or property or endanger the human life. (Manipur Municipalities Act (43 of 1994), S. 2(37) and New Delhi Municipal Council Act (44 of 1994), S.2(28) and Cantonment Act (2 of 1924), S 2(xxii). The unreasonable, unwa rranted and/or unlawful use of property , which causes inconvenience or damage to others, either to individuals or to the general public. Nuisance can include noxious smells, noise, burning, misdirection or water into other property , illegal gambling, unauthorized collections of rusting autos, indecent signs and pictures on business and a host of bothersome activities. Where illegal they can be abated (changed, repaired or improved) by criminal or quasi-criminal charges. There are two types of nuisance i.e. private nuisance and public nuisance. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property , without an actual Trespass or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community . Obstructing a highway or creating a condition to make travel unsafe or highly disagreeable are examples of nuisances threatening the public convenience: A public nuisance, as such, is actionable only by the state, through criminal proceedings, injunction , or physical abatement, the same activity or conduct may also create a private nuisance to neighbouring landowners and thus result in a civil suit. The conduct of business in violation of any law may constitute a public nuisance. In legal terminology , a nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent or ultra-haza rdous in origin, and must be a result of respondent's/def endant's activity .
The term annoyance is flexible one. It has many shades and varieties of meaning. In a nuisance case, the fundamental inquiry always appears to be whether the use of certain land can be considered as reasonable in relation to all the facts and surrounding circumstances. There may hardly be any cavil in saying that the environmental laws are an adaptation of the doctrine of nuisance to modern complex societies, in that person's use of his property may harmfully affect another's property , or person, far from the nuisance activity . As a result of industrial revolution. and modern life having intricacies and complications involving state institutions, the law curbing nuisance af fecting adversely the human life has developed in a great deal.
7. In order to further appreciate the conte ntions raised by learned counsel for the respective parties, in the light of above discussion and to arrive at a proper conclusion, it would be advantageous to draw an exhaustive extraction from section 133 Cr.P.C. The perusal of the above quoted provision of law indicates that Chapter-X (Public Nuisance) contains the provisions for regulating mechanism/procedure for passing an order to achieve the object contained in section 133 Cr.P.C., it appears that u/s 133 Cr.P.C. a Magistrate by way of exercising his powers has been enabled to make speedy redressal when public nuisance available within the categories enumerated in the section, is being caused. Bare reading of section 133 Cr.P.C. reflects that a Magistrate before he passes final order , has to pass a conditional order which, in fact, is a kind/type of show-cause notice to the person who is indulged in any activity prompting initiation of proceedings under this section and thereafter to pass final order . Section 133 indicates that whenever a Magistrate, 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, or that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community , and: that in consequence of such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated, or that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped, or that any building, tent or structure, or any tree is in such a condition that it is likely to fait and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence. the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary , or that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to Prevent- danger arising to the public, or that any dangerous animal should be destroyed; confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing-such obstruction or nuisance or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order , to remove such obstruction or nuisance; or to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, to regulate the keeping thereof in such manner as may be directed; or to prevent or stop the erection of; or to remove, repair or support, such building, tent or structure; or to remove or support such tree, or to alter the disposal of such substance; or to fence such tank, well or excavation, as the case may be; or to destroy , confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before court, at a time and place fixed in the order , and move to have the order set aside or modified in the manner provided. This section also explains term 'public place' which includes property belonging to the State, camping grounds and grounds left unoccupied for sanitary or procreative purposes. The arguments of the learned counsel for the petitioner that since the petitioner and others have established the wagon stands/addas on the privately owned places, therefore, proceedings in terms of section 133 Cr.P.C. cannot be initiated, is unsustainable, suffice it to observe "sic uteri tuo ut allenum non-laedas" --- Meaning and applicability---Public nuisance---Maxim means "so use your own property as not to injure the rights of another"---- Use of private property may give rise to a public nuisance to those who are living in the same vicinity" also is the complete answer to the arguments of the learned counsel for the petitioner .
8. It may also not be difficult to visualize that the vehicles being plied on the .roads from these illegal wagon stands are not only contributing to the road traffic congestion but their fuel emissions are also contributing to the atmospheric pollution, causing health hazards to public at large. The vehicles plying on the roads in the above noted circumstances by blowing horns are also an additional source of noise pollution, which cannot be overlooked. Moreover , vehicle plied illegally on the roads by their owners or drivers, from the illegally established wagon stands as observed herein above may also be enhancing the chances of road accidents. It may also be relevant to say that the persons carrying on their business by way of establishing wagons stands illegally , are also evading the licence/permit fee and other relevant taxes which ought to have been paid in the national exchequer , to inject the funds in the national purse, for running the af fairs of the State,
9. Undeniably , as noted above, on the application of respondent No.15, the learned Magistrate Chakwal after receiving reports from the quarter concerned viz: SHO City Chakwal dated 16.05.2018, District Traffic Officer, Chakwal dated 18.05.2018, Encroachment Inspector as well as Chief Officer, TMA, Chakwal dated 22.05.2018 and District Regional Transport Authority , Chakwal dated 22.05.2018, the crux whereof is that Besides General Bus Stand, Alliance Travels and Hamsafar Travels, only three out of total vehicle stands are duly authorized and no other bus stand/local vehicle stand in operation have been sanctioned by the concerned authority , passed initially the conditional order dated 30.05.2018, and after considering the objections of the petitioners and others, and affording an opportunity of hearing to them, passed the final order while issuing direction to all the concerned to remove all the illegal bus stands, rickshaw stands and other illegal encroachments made on public roads throughout the city , which were causing hurdles in traf fic flow and great deal of public nuisance.
The petitioner through instant application has since invoked the jurisdiction of this Court, therefore, it may also be relevant for better appreciation to quote the provision of Section 561-A hereunder-- 561-A. Saving of inherent powers of High Court . Nothing in this Code shall be deemed to limit or effect 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 process of any court or otherwise to secure the ends of justice.
Let me reiterate, before concluding the above discussion that since petitioner and others had established the wagon stands in breach of their inviolable obligation of conducting themselves in accordance with law and the Constitution, therefore, the inherent powers, vested in this Court under section 561-A Cr.P.C, cannot be exercised in favour of the petitioner or any other person sailing in the boats constructed with the similar 'material. Providing a shield through exercise the inherent power in favour of the petitioner and others will not be securing the ends of justice by any stretch of imagination rather it would amount to encouraging the defaulting elements in fulfillment of their inviolable constitutional obligation. In this context, the reliance is placed upon cases reported as Shah Muhammad v. Addl. Sessions Judge, Bahawalpur and 5 others (P.Cr.L.J 1998 Lahore 1987), case titled Haji Abdul Aziz and 2 others v. Haji Dost Muhammad and 5 others (P.Cr.L.J 1999 Lahore 31), case titled Haji Raz Muhammad and 9 others v. District Magistrate, Quetta (2000 P.Cr.L.J 1702), case titled Mrs. Irfan v. Lahore Development Authority through Director-General and others (PLD 2002 Lahore 555), case titled Watan Party and another v. Federation of Pakistan and others (PLD 2011 Supreme Court 997) and case titled Zafrullah Khan v . Federation of Pakistan ( 2018 SCMR 2001 ).
10. For the above noted reasons, the instant petition being patently devoid of any force stands dismissed.
11. Before parting with this order , it may not be out of place to observe that this Court being defender of duly enshrined fundamental rights of the citizens in the Constitution of the Islamic Republic of Pakistan 1973, cannot remain oblivious of the fact that the mushroom of illegally established wagon, rickshaw , taxi stands etc by the unscrupulous elements, are a constant source of public nuisance which shou ld have been removed by the concerned authorities at the earliest while exercising the powers vesting in them under the provisions of relevant laws.