1. ORDER OF REFERENCE Nek Muhammad and Noor Muhammad petitioners by order, dated 29-9-1970, passed by S.Yed Ali Safdar Kazmi, exercising powers of a Magistrate Ist Class (Section 30), Tehsil Isa Khel, in the district of Mianwali, were directed to remove the unlawful obstruction under section 137(3) of the Criminal Procedure Code within a period of one month from the date of order.
2. The facts of this case are as follows :- On the. 27th of July 1970, Yar Muhammad (now respondent before me) submitted an application to the District Magistrate, Mianwali, stating therein that Nek Muhammad son of Ghulam Muhammad, Noor Muhammad son of Sher Muhammad (now petitioners before me) and others, residents of Tola Mangali, Police Station, Kalabagh, obstructed the path which was being used by the complainant about to months before and that the complainant made a report to the police, Police Station Kalabagh, but with no success, as the police did not take any action in the matter. The application so submitted was entrusted to the Assistant Commissioner, Isa Khel, by the District Magistrate, Mianwali, for an action under section 133 of the- Code of Criminal Procedure. After the application was received by the, Assistant Commissioner, Isa Khel, he passed an order for summon--ing the parties. It so appears that no process Was issued to Nek Muhammad and Noor '
3. Muhammad for their appearance before the Assistant Commissioner, Isa Khel. However, in their absence, the Assistant Commissioner, Isa Khel, recorded the statements of Yar Muhammad petitioner-complainant and one Haji Khushbad Gul and thereafter passed the order on the 29th of.
4. September 1970, the material portion .Of which runs thus :- "I have recorded the evidence of Yar Muhammad complainant and Haji Khushbad Gul P. W. 1 have also gone through the revenue record produced, by the complainant. From the evidence on the record, I am satisfied that the respondents, namely, Naik Muhammad son of Ghulam Muhammad and Noor Muhammad son of Sher Muhammad etc., caste Dirkhan, residents of Tola Mangali have caused an unlawful obstructions in the thoroughfare through Khasra. Nos. 2312 and 2314, in the area of village Tola Mangali. I do hereby direct the respondents to remove the unlawful obstructions as detailed above, within a period of one month from the date of this order under section 133, Cr. P. C."
5. Feeling aggrieved by the order so passed, Nek Muhammad and Noor Muhammad have filed the present revision petition in this Court.
6. The proceedings are forwarded for revision on the following grounds :- After hearing the learned counsel for the petitioners and Yar Muhammad respondent, who is present in person, as also after going through the record and the relevant provision of law carefully, the conclusion I have arrived at is that the impugned order was illegal. In this context, I would like to point out that the order, as reproduced above, would make it perfectly clear that the trial Court treated it as an absolute one. It is to be pointed out that section 133, Cr. P. C. Lays down that "whenever a District Magistrate, a Sub-Divisional Magistrate, or a Magistrate of the First Class, considers, on receiving a police report or other information and on taking such evidence (if any), as he that any unlawful obstruction or nuisance should from any way, river or channel which is or may be lawfully used by the public, . . . . Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance in the manner provided by the said order, or, if he objects to do so, to appear before himself or some other Magistrate of the First or Second Class, at a the and place to be fixed by the order, and move to have the order set aside or modified. The order under this section must, therefore, be conditional and not absolute and every order passed under this section should state the the within which and the place where the person to whom it 'is issued may appear and move to have it set aside. The Code itself calls the order under section 133, Cr. P. C., a conditional order and the one under section 142, Cr. P. C., an injunction. The forms are entirely different and the form in which the conditional order is expressed is such as not to amount to an injunction. It is to be pointed out that a conditional order passed under section 133, Cr. P. C., can be made absolute only if and when the procedure contained in sections 134, 135, 136 and 137, Cr. P. C., is followed. It need hardly be said, at this stage that before making the con--ditional order an absolute one, the Magistrate has to call upon the party affected by the order to appear before him on a day to be fixed and that even if the party appears after the the fixed in the order, but before the case is taken up, the Magistrate is bound to hear his objection and take evidence for the order he has to make. The absence of the objector at an adjourned hearing after he had once appeared to show cause will not absolve the Magistrate of his duty of taking some evidence at least before making the order absolute. He cannot at solely his opinion and is bound to take evidence as the basis of his order which he is to make. In other words, the Magistrate is bound to take evidence in the presence pf the opposite- party before he can make the order absolute. The provisions of section 137(1) of the Cr. P. C., with regard to the appearance of the opposite-party and recording his evidence by the Court concerned are imperative and the failure of the Magistrate to follow the same vitiates the entire proceedings. The provisions are mandatory and before making the order absolute it is imperative that evidence should be taken as in a summons case. From, this it will be seen that a conditional order under section 133, Cr. C., cannot be made absolute without the first party being called upon to adduce evidence in support of his claim even though the second party does not, after showing cause under section 135, Cr. P. C., appear to give evidence in support of the denial of the right claimed by the first party. In the instant case, it is an admitted fact that the impugned order was passed in the absence of the respondents, who are now petitioners before me, and that they had not been served to appear in Court. Again, the impugned order was not conditional one and was instead, an absolute one. As indicated earlier, the absolute order cannot be passed in the absence of a previous conditional order much less can it be passed in the absence of the opposite-party and without recording the evidence of the complainant in the presence of the opposite-party. In this view of the matter there can be no doubt about the fact that the impugned order passed by the trial Court was in contraven--tion of-the mandatory provisions of section 133, Cr. P. C., and as such is liable to be set aside. Consequently, I accept the present revision petition and send the case to the Lahore High Court, Lahore, with the -respectful recommendation that the impugned, order may kindly be set aside and further inquiry be ordered in 'the case. The impugned order is suspended' in the meanwhile.
7. ORDER OF THE NIGH COURT The learned Sessions Judge, "Mianwali, has referred this case under section 438, Cr. P. C. For setting aside an order of the learned Assistant Commissioner, Isa Khel, dated the 29th of September 1970, purported to have been passed under section 133, Cr. P. C. On the application of Yar Muhammad respondent. I appears, as pointed out by the learned Sessions Judge, that the learned Assistant Commissioner erroneously treated by order as final whereas under section 133, Or. P. C. Only a conditional order could have been passed prescribing a certain the limit within which the person affected could move for its cancellation. Obviously, the learned Assistant Commissioner has overlooked the statutory provisions contained in Chapter X of the Criminal Procedure Code dealing with public nuisances. Accordingly, I accept the reference, set aside the impugned order and direct that the matter may be decided afresh in accordance with law.