M UHAM M AD IJAZ KHAN, J. Through the instant petition, petitioner is seeking the quashment of the order and judgment of learned Additional Sessions Judge/Izafi) Zila Qazi Malakand at Dargai dated 22.02.2017 whereby the revision filed by the present petitioner was dismissed and orders of Assistant Commissioner Dargai dated 09.09.2016 and 19.07.2016 were maintained.
2. Precisely the facts of the case are that the respondent filed a complaint under section 133 Cr.P.C against the present petitioner that he while doing blade in his property has pushed the soil to the adjacent Barani Khwar and as such it will cause obstruction to the flow of rain water of the petitioner's houses and as such it is creating nuisance for the inhabitants. After entertaining the said complaint, it was referred to the local police of Police Station Sakhakot who submitted its report and found the allegations made in the complaint prima facie as correct. The Inquiry Officer also prepared site plan and also recorded statement of the present petitioner and when the aforesaid report was submitted to the Worthy Assistant Commissioner Malakand who on the same day passed the conditional order and directed that the obstruction/debris be removed from the Barani Khwar and the parties were directed to submit their replies to the show cause notice. The record further shows that again a report was sought from the Tehsildar Dargai and who also submitted his report on 11.05.2015, however, this time he reported that in-fact no Khwar exists there and as alleged by the respondent the blade has not caused any obstruction. The Worthy Assistant Commissioner Dargai vide order dated 15.09.2015 dismissed the complaint. The present respondent then complainant filed a revision petition before the Court of learned Additional Sessions Judge/Izafi Zila Qazi Dargai which was allowed and the order dated 15.09.2015 was set aside and the case was remanded to the learned trial Court with the direction to decide the complaint in accordance with law. Thereafter, the present petitioner submitted his reply.
3. It was on 19.07.2016 when the respondent/complainant submitted an application that the petitioner has once again started his activities to obstruct the said Barani Khwar, therefore, he may be stopped from the same and it was on the basis of the aforesaid application when the Worthy Assistant Commissioner Darga vide order dated 19.07.2016 passed the conditional order directing the local police to remove debris from the Khwar and simultaneously the present petitioner was summoned and the case was fixed for the recording of evidence.
4. The record further shows that instead of challenging the aforesaid order dated 19.07.2016 before the revisional Court the petitioner/respondent opted to file a review petition, however, his said review petition was dismissed vide one of the impugned order dated 09.09.2016 and it was thereafter when the present petitioner filed a revision petition before the Court of learned Additional Sessions Judge/Izafi Zila Qazi Dargai against the order dated 09.09.2016 alone without challenging the original order dated 19.07.2016, however, his revision petition was also dismissed vide one of the impugned order dated 22.02.2017, hence, the petitioner has now approached to this Court to quash the order dated 19.07.2016, 09.09.2016 and 22.02.2017 by filing the instant petition.
5. Arguments of learned counsel for the petitioner as well as learned Astt: A.G for the State were heard in considerable detail and the record perused with their able assistance, whereas the respondent despite service did not appear before the Court, therefore, this Court proceeds to decide the case on merits.
6. The main grievance of the learned counsel for the petitioner was that before passing the order dated 19.07.2016 the learned trial Court was required to record some evidence, however, it may be noted that the order dated 19.07.2016 was an interim and conditional order which was passed as per the mandate of section 133 Cr.P.C and simultaneously the parties were also directed to produce their evidence, therefore, one of the order under challenge dated 19.07.2016 is not an absolute order rather it is a conditional order which has either to be confirmed by the Worthy Assistant Commissioner after recording of evidence of both the parties or the same has to be vacated or withdrawn, therefore, to this extent the submission of the learned counsel for the petitioner is not legally sustainable as a preliminary/conditional order could be passed by the Worthy Assistant Commissioner to remove the nuisance then and there and then after submission of the replies and recording of evidence if he come to the conclusion that the allegations made in the complaint are established then the preliminary/conditional order has to be made absolute and if he comes to the conclusion that the allegations so made in the complaint have not been established then the preliminary/conditional order could be vacated and withdrawn.
7. Chapter-X of the Cr.P.C which is comprising of sections 133 to 143 deals with the Public Nuisances.
Section 133 Cr.P.C stipulates that when a Magistrate received an information on the basis of police report or any other source, he will take necessary evidence that as to whether the information so conveyed to him has in-fact created public nuisance in any of the six categories mentioned therein and then thereafter, he will pass a conditional order for removing such obstruction or nuisance. This conditional order also amounts to a show cause notice to the person who has been an accused of creating unlawful obstruction or nuisance and then under section 134 Cr.P.C, he has to serve the order upon the person against whom the same has been passed. Section 135 Cr.P.C states that the person against whom such order is passed, he has to perform the same within the time specified in the order and he has also to appear in accordance with the direction of the order, treating the same as show cause or to claim jury to try that as to whether the said order is reasonable and proper, however, Section 136 Cr.P.C states that in case of his failure to appear or to the show cause, he shall be liable to the penalty prescribed in this behalf under section 188 of the Cr.P.C. Section 137 Cr.P.C declares that if after the appearance of the person against whom a conditional order under section 133 Cr.P.C has been passed and to whom a show cause notice has been issued and after taking necessary evidence, if the Magistrate is satisfied that the conditional order passed was not reasonable or proper, he will drop any further proeedings, however, if he is not satisfied that in-fact the person against whom allegations of unlawful obstruction and nuisance are correct, then he will pass the absolute order, therefore, before passing any preliminary/conditional order, the Worthy Assistant Commissioner has to record some evidence, therefore, such objection of the learned counsel for the petitioner is also not maintainable.
8. It is an admitted fact that the complaint of the respondent/complainant is still pending adjudication before the Worthy Assistant Commissioner and he has yet to record evidence of the parties and will pass the final order. The Court was apprised that the impugned order was passed way back on 15.07.2016 but till date no proceedings in the main complaint have taken place for unknown reason as this Court has not passed any restraining order to proceed with the complaint.
It may be clarified that before stoppage of the proceedings in a case the Court or authority must have been appraised themselves that as to whether the stoppage of the judicial proceedings has been ordered by the next higher Court or not and in absence of any black and white order in writing the Court or authority should not make redundant the case pending before it. In this case despite the fact that no restraining order qua the staying of proceedings has been passed but even then for the last seven years no proceedings have been carried out by the Worthy Assistant Commissioner and as such this unnecessary delay in the conclusion of cases is causing to erode the trust of litigants on the system, therefore, any Court or authority who is seized of the matter should decide the case pending before it in expeditious manner as far as it is practicable.
9. Accordingly, this petition being bereft of any merits is hereby dismissed.