Through this judgment the titled constitutional petition is sought to be decided.
2. The question before this Court is whether in the facts and circumstances of this case, provisions of Section 133, Cr.P.C. are attracted or not?
3. Respondent Khalid Hussain filed an application under Section 133, Cr.P.C. with respect to Khata No. 13, Basti Hoot, Tehsil and District D.G. Khan against the petitioner, complaining that the respondent was a resident of the said vicinity and that a public thoroughfare/right of way existed in the area which was used by the residents to approach, inter alia, the mosque in the area but that the petitioner before this Court had blocked that right of way by constructing small walls on the said right of way. That public at large had used that right of way incessantly over the past many years but on account of the right of way having been blocked the residents as also public in general were faced with utmost difficulty in approaching the mosque as also in generally organizing funeral prayers, domestic private engagements etc. The respondent prayed for the said right of way to be restored and opened up for the use of public at large. He prayed to the Area Magistrate that since the blocking of this pubic right of way was impregnated with the risk of disturbing peace and causing fights between the residents and the users on the one hand and the petitioner on the other, the right of way ought to be restored and opened up for the use of public at large. Interestingly, this right of way/thoroughfare is situated in a joint khata.
4. A learned Magistrate after issuing notice to the petitioner summoned a report from the Patwari as also the Station House Officer of the area. While the Station House Officer admitted that the petitioner had blocked a public passage, the report by the revenue department also admitted that a public street was present albeit an unsanctioned one and that the same had been blocked by the petitioner. Both reports not opposing the stance of the respondent about the presence of a public passage albeit an unsanctioned one, were readily and rightly relied upon by the Area Magistrate and he issued a direction to the Station House Officer to restore and open the public passage for use of public vide order dated 29.10.2018.
5. This order was challenged by means of a criminal revision and a learned Addl. District & Sessions Judge vide order dated 13.11.2019, after noting the presence of, inter alia, a mosque for reaching which a public thoroughfare existed and which fact was backed by and dismissed the revision petition filed by the petitioner.
6. This led the petitioner to lay a challenge to concurrent findings recorded by the two Courts below by filing the present constitutional petition. During the course of hearing the Assistant Commissioner, Saddar, D.G. Khan was asked to submit a fresh report. According to this fresh report of the Assistant Commissioner there is no recorded in the revenue record but it is also a fact that an informal yet unsanctioned street/right of way did exist which was subsequently blocked and that this right of way had been in use of the public in general till a few months back. A copy of this report is present on the case file.
7. It may be mentioned here that initially Sheikh Muhammad Saleem, Advocate appeared on behalf of the petitioner. He was subsequently superseded by Sardar Balakh Sher Khosa, Advocate who has not appeared on the last three dates of hearing and today Mr. Muhammad Shareef Karkhi Khaira, Advocate has submitted his power of attorney on behalf of the petitioner and has argued the matter. Learned counsel for the petitioner submits that since the report of the Assistant Commissioner clearly reveals that there was no recognized Section 133, Cr.P.C. is not attracted and hence the proceedings before the Courts below were coram non judice. Learned counsel for the petitioner has relied on - "Malik Farooq Ahmad Khokhar v. Peer Akhtar Hussain Bodla and 2 others" (1988 P.Cr.LJ 661) and "Nur Ali Shah v. Natha" (AIR 1927 Lahore 745) to reinforce his submissions.
8. On the other hand, learned counsel for the respondent submits that it is evident from the report of the Assistant Commissioner that an unsanctioned right of way did exist and which right of way led the residents as also other muslims to the mosque in question and which right of way had been blocked. Adds that since and also support the presence of an unsanctioned street, Section 133, Cr.P.C. is indeed attracted and, therefore, concurrent findings of the Courts below being based on evidence and reports of the revenue department cannot be questioned.
9. Learned counsel for the respondent has also rightly distinguished the precedent case relied upon by the counsel for the petitioner i.e. "Malik Farooq Ahmad Khokhar v. Peer Akhtar Hussain Bodla and 2 others" (1988 P.Cr.LJ 661) by stating that the said precedent case is distinguishable because there was no evidence led in the said precedent case which established the presence of a thoroughfare whereas in the present matter the reports of the revenue department are conspicuous and self-explanatory.
10. Learned AAG submits that proceedings under Section 133, Cr.P.C. can be carried out even if a right of way is unsanctioned but is present and in the use of public. He has referred to the provisions contained in Section 268 of the Pakistan Penal Code to argue that the situation and facts before this Court clearly attract the said provision and which in turn also qualify for being taken up in proceedings under Section 133, Cr.P.C.
11. I have heard the counsel for the parties and have perused the available record and can straightaway observe that the precedent cases relied upon by the counsel for the petitioner do not help him because in the said precedent cases there was no evidence available with the Courts below in arriving at the conclusion that a public right of way existed whereas in the present matter the two reports of the revenue department coupled with and clearly establish the presence of a right of way used in the past by public in general and residents of the area in particular for, inter alia, reaching a mosque.
12. Besides this what is also relevant in the present context is the presence of Article 20 of the Constitution of Islamic Republic of Pakistan, 1973 which allows every citizen the right to profess and practice religion and all executive authorities in Pakistan are obliged to facilitate the enforcement of such right and which right is arguably infringed by effacing and removing the said public right of way which also leads to a mosque and which was used.by the residents of the area and by the public in general to offer prayers.
13. However, for a just decision in the matter it is necessary to explore the question whether proceedings under Section 133, Cr.P.C. can be carried out even if the public right of way in question is not officially sanctioned yet existent and used by the public in general.
14. Section 268 of the Pakistan Penal Code defines 'public nuisances' as follows:- "Public Nuisance. A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage."
15. On the other hand, Section 133, Cr.P.C. reads as follows: "133. Conditional order for removal of nuisance. (1) Whenever a District Magistrate, a Sub-Divisional Magistrate or 2[an Executive Magistrate] considers, on receiving a police report or other information and on taking such evidence (if any) as the 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 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 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 fail and thereby cause injury to persons living or carrying on business in the neighborhood 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. or remove such obstruction or nuisance
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court."
16. For Section 133, Cr.P.C. to be attracted, the right of way from which a nuisance is sought to be removed must be one which is or may be usefully used by public. A thoroughfare is a place where the public go irrespective of whether they have a right to go or not "Ramkripal Sing and another v.
Superintendent, Way & Works, E.I.R, Gaya" (AIR 1945 Patna 309). The place has to be open to the public i.e. a place where the public has access by permission, usage or even otherwise.
17. In the present matter it has been established by two reports submitted by the revenue hierarchy that the place where the said right of way is situated and where the nuisance exists is a common/joint khata which is yet to be partitioned. That there are many thoroughfares in the said khata which lead to various residences of the people living in the vicinity and that the thoroughfare in dispute also existed as one such thoroughfare and which had been sought to be blocked from three corners by means of construction undertaken by the respondent who had managed to erect walls closing three sides of the public thoroughfare. It has also been stated in the report that this public right of way did indeed lead the faithful to the mosque in the area. It is also a fact that the public in general used this right of way to reach the mosque as also for other purposes.
18. In Criminal Miscellaneous No. 907-M of 2008 "Usman Aziz v. Muhammad Ashraf a learned single Bench of this Court has very lucidly attended to the proposition confronting this Court i.e. whether proceedings under Section 133, Cr.P.C. can be carried out even if a street is not officially sanctioned as a public thoroughfare/right of way in the revenue record but is nevertheless in use of the public-at-large and has been so used by the public-at-large. In the said judgment it has been held that a public street could come into existence by dedication of the owner coupled with its use by the general public as passage or a right of way. The facts of the case at hand are on a much stronger footing because there is no question about any dedication of the owner because in a common/joint khata each co-sharer is considered as an owner in possession. And the constant use of such thoroughfare/right of way by the general public clearly attracts Section 133, Cr.P.C.
Therefore, even if a street or a passage is not a declared public street in the revenue record, a public passage could still come into existence on account of its use by the public in general and which is exactly the case is in the present matter. The co-sharers having permitted the use of the thoroughfare by conduct.
19. The purpose of insertion of Section 133 in Cr.P.C. is apparent from the heading of the provision; "conditional order for removal of nuisance" i.e. the magistrate is required to ascertain the existence of nuisance and not the nature of land or property over which right of way is claimed. The said purpose is reinforced by Section 139-A, which provides that the only defence against an order Made under Section 133 is denial of existence of any public right, hence, emphasising that only in the absence of a public right of way, can such an order be recalled.
139-A. Procedure where existence of public right is denied: (1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river; channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138 inquire into the matter.
20. Such purpose was reiterated by the Allahabad High Court in an unreported Case i.e. Misc. Single 3659 of 2004 (Ram Kishore and 3 Ors vs Additional Session Judge): The object and purpose of Section 133, Cr.P.C. is so as to prevent the public nuisance and it also involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately then the irreparable damage would be done to the public. No one has a right to obstruct the public way by raising unauthorized construction. If the land in dispute has been used for a long time as a public way, then it cannot prevent the competent authorities to declare it as a public way. 1973 Cri.L.J 1527 (Shri Ram Kishore and another vs. State) Himachal Pradesh High Court: "8. The said observation was made by the learned Judge in the special circumstances of that case where the right of way was claimed which did not find mention in the revenue records and hence it was held that public right was not established. In such a case the proof of ownership of land was considered reliable evidence to deny the public right of way. In the case before me the proverty being private, nevertheless was uniformly used by the members of the public and certain defined rights were exercised from lone time in the past. Therefore, the above noted decision will be of no avail to the petitioners".
AIR 1952 All 215 (Mohd. Ayub and Ors. vs State):
8. The denial must be in respect of "the existence of any public right in respect of the way, river, channel or place . . . ." To my mind, when the second party, against whom the preliminary order has been passed under Section 133, appears and makes a denial of the right, his denial refers to the existence of any public right in respect of the particular way, river, channel or place which is said to have been obstructed. The denial must, therefore, obviously refer to the existence of the public right in so far as it is said to have been obstructed.
21. The use of land in question as a public right of way and its obstruction by construction of walls from three sides stands proven and the claim of non-existence of such right of way has not been established. Once the consistent use of the land as a public right of way is established, there remains no question of whether such land reflects as a public way in the land record or not since it is not the categorization or ownership of the land but the consistent use of such piece of land by public which necessitates an order under Section 133.
22. The fact that the thoroughfare in issue has been used in the past by the public in general is undeniable in view of the statements of residents recorded by the revenue hierarchy and which statements have been alluded to in the reports so submitted. It is also equally true that on account of the nuisance created by the blocking of the thoroughfare in question by the private respondents there is great resentment amongst the users of the said thoroughfare and which may cause disruption of peace. Hence, the concurrent findings recorded by the Courts below are unexceptionable and call for no interference.
23. There was ample justification for the learned Courts below to come to a tentative conclusion that the cause way in question did exist and was being used by the public in general. The same having been blocked by the questionable and irregular exercise undertaken by the respondent, the Courts below were justified to decide, by way of a conditional order, to open the public passage to the public in general.
24. There is no merit in this petition which warrants to be dismissed.