' This petition under Article 9 of the Provisional Constitution Order, 1981 is directed against the revisional order of the learned Sessions Judge, Sargodha, dated 27-2-1984 whereby he set aside the order of the trial Magistrate dated 21-11-1983 and accepted the revision petition of Muhammad Yusuf, respondent No, 2 holding that the working of the Ice Factory of the respondent did not amount to public nuisance and any damage or inconvenience caused to the premises of petitioner must be regarded as 'private nuisance' and it did not justify an order under. Section 137, Cr. P.
2. Facts necessary for the disposal of this petition are that Gulzar Ahmad, petitioner moved an application under section 133, Cr. P. C. Against Muhammad Yusuf, respondent 'stating therein that he was a resident of Bakhshi Colony, Sargodha and that the said respondent had installed an Ice Factory near his house and that as a result of the working of the Factory, he and all the residents of the Mohallah were. Suffering physical and mental torture and it was also dangerous to human life.
It was further averred in the application that the water flowing from the Factory was likely to cause the disease. As an instance of danger to human life and property, it was pointed out in the application that gas cylinder in the Factory had earlier exploded twice as a result of which eyes of the petitioner's real brother were damaged and the petitioner's house also developed cracks.
Petitioner, therefore, sought a direction to be issued to the respondent to move his Ice Factory from the Abadi of Bakhshir Colony to some other place.
3. Notice of the petitioner's application aforementioned was issued to respondent No, 2 who contested the proceedings by submitting a reply that he had installed the Ice Factory since before coming into existence of Bakhshi Colony and that the people constructed their houses knowing fully well the location of the Ice Factory. It was further submitted by respondent No, 2 that the residents of the Mohallah had no objection whatsoever and that it was only the petitioner who was agitating his alleged grievance with a view to blackmail the respondent. It was further submitted by the respondent that the Factory was run through electricity and as such there was no question of any blasting of steam gas cylinder and that the extra water flowing from the Ice Factory fell into the gutter of the Municipal Committee and neither the public at large nor the residents of the Mohallah had any cause of grievance from his factory.
4. Both the parties adduced the evidence before the trial Court in support of their respective contentions. Apart from the oral evidence, petitioner also led documentary evidence. He produced an application (Exh. PA) moved by 31 residents of the locality addressed to the Deputy Commissioner, Sargodha wherein it was alleged, inter cilia, that the water corning out of the Ice Factory in question was standing on the road and the gas discharged from the Factory was injurious to the eyes. A request was, therefore, made in the application that the Ice Factory be ordered to be closed down forthwith and shifted to some Factory area. Copy of this application has also been placed on the present record.
5, The learned trial Magistrate after thorough discussion of the evidence led by both the parties and the material placed on the record came to the conclusion that the Ice Factory of the respondent was causing injury/nuisance not only to the complainant/petitioner but also to the general public. The learned Magistrate took particular note of the aforementioned application (Exh.
PA) as also of a notice dated 28-7-1983 issued by Municipal Corporation, Sargodha to respondent No, 2 requiring him to deposit Rs, one lac for repairing the Municipal road which has been extensively damaged on account of flow of water from the respondent's Ice Factory. It was stated in that notice that there were no proper arrangements made by the respondent for drainage of the water flowing from his Ice Factory which was spreading on water-supply road and it had not only damaged major portion of the road but was also causing inconvenience to the way-farers, Learned Magistrate also took into account a cutting from Daily `Jang' containing a news item to the effect that an Ice Factory in Lahore ' discharged poisonous gas which caused harassment amongst the residents of the locality. Having thus considered the entire material on the record, learned trial Magistrate came to the conclusion afore-referred and directed the respondent by his order dated 21-11-1983 to close his Ice Factory forthwith and to remove the same to some place away from human habitation,
6. Respondent challenged the aforesaid order of the trial Magistrate in a revision petition which was accepted by the learned Sessions Judge, Sargodha by his order dated 27-2-1984 impugned in the present petition. Learned Sessions Judge held that the provisions of section 133, Cr. P. C. Could only be invoked in cases of public nuisance but in the present case complaint was filed. By one person namely the petitioner and not "by the public at large or the residents of the Mohallah where the Factory in dispute is situate". Learned Sessions Judge, therefore, came to the conclusion that the nuisance in the instant case confined to the petitioner alone was of 'private nature' and as such the order of the learned trial' Magistrate was without jurisdiction. Findings recorded and view taken by the learned Sessions Judge may be reproduced hereunder :- "It is clear from the record itself that the present case is one of a private nuisance and therefore, the learned Magistrate did not have the jurisdiction to make an order under section 133, Cr. P. C. As the order of the learned Magistrate is without jurisdiction, because he had decided private nuisance The working of the engine of the petitioner does not amount to public nuisance and any damage or any inconvenience caused to the premises of the respondent must be regarded as 'private nuisance' and it does not justify any order under section 137, Cr. P. C. The annoyance of a few residents of a single is not sufficient to constitute a public nuisance as contemplated by section 290 of the Penal Code and order under section 133, Cr. P. C. Can be justified only if the conduct of the trade is injurious to the health or physical comfort of the community."
' On the aforesaid findings, learned Sessions Judge set aside the order of the learned trial Magistrate with the observation' that the nuisance being of `private nature', petitioner could file a suit for damages. '.
7, Learned counsel for the petitioner contended that the finding of the learned Sessions Judge that the nuisance in the present case was of 'private nature' because it was confined to the petitioner alone is the result of the misread of the evidence on the record. He has pointed out that the learned Segsions Judge has not at all adverted to the application (Exh. P.A.) moved by 31 residents of the locality expressing their grievance against the working of the respondent's Ice Factory. It was, therefore, submitted by the learned counsel that the finding of the learned Sessions Judge that it was a case of 'private nuisance' and not public nuisance is vitiated by non-consideration of material piece of evidence. Learned counsel further pointed out that the learned Sessions Judge proceeded on the erroneous assumption that the trial Magistrate mainly relied of the Municipal Corporation and a cutting of the 'Daily Jung' whereas order- of the learned Magistrate shows that he also heavily relied upon the application (Exh. P. A.) moved by the residents of the locality. It. Was further pointed out that the learned Sessions Judge wrongly assumed that the trial Magistrate came to the conclusion "that the Ice Factory of the petitioner was nuisance and injurious to the health or physical comfort of the petitioner who was living near the Ice Factory". Learned counsel submitted that the conclusion arrived at, by the learned trial Magistrate has been misread.
Conclusion/ finding recorded by the learned Magistrate was that the Ice Factory in question was causing injury not only to the petitioner but also to the general public. He has particularly referred to the following portions in the judgment of the learned trial Magistrate {{URDU TEXT}} Learned counsel for the petitioner, therefore, argued that the impugned judgment of the learned Sessions Judge was not only based on misreading/ non-consideration of the evidence on the record but also on an erroneous assumption as to the findings/conclusions of the learned trial Magistrate and as such the impugned judgment was liable to be struck down.
8. Learned counsel appearing for respondent No, 2 did not seriously dispute the aforementioned contentions raised by the petitioner's counsel. He, however, submitted that the finding of the learned Sessions Judge that it is a case of 'private nuisance' and not of public nuisance is one of fact which cannot be scrutinized in extraordinary writ jurisdiction of this Court. No doubt, ordinarily this Court when exercising writ jurisdiction accepts as correct the finding of fact given by a tribunal of exclusive jurisdiction. This, .However, does not mean that the findings of, fact given by a tribunal are sacrosanct in all circumstances. There is ample authority for the view that if a tribunal of exclusive jurisdiction had, when arriving at a finding of fact, misread the evidence, or had considered evidence which could not have been considered at all, or had failed to consider evidence which it was bound to consider or should have considered the finding of the Tribunal cannot claim immunity from examination. Reference niay be made to N. M. Khan and another v.
Chief Settlement and Rehabilitation Commissioner (1). It was also held in The Commissioner and another v. Mian Sher Muhammad (2)` that finding of fact can be interfered with if based on no evidence or misreading of evidence or in ignorance of Material evidence. In the instant case it was argued by the learned coteries floor the petitioner that the learned Sessions Judge omitted to consider\the application (Exh. P.A.) moved by 31 resident of the locality which was a material piece of evidence and that he set aside the judgment of the learned trial Court on erroneous assumptions regarding the evidence considered and findings recorded by the learned trial Magistrate. This submission of the learned counsel is borne out from the record and as noted above, has also not been seriously disputed by the learned counsel for the respondents. Impugned judgment of the learned Sessions Judge, 'therefore stands vitiated on account of these defects/omissions and as such the same cannot be sustained.
Learned counsel for the respondents has placed on record .43 affidatots wherein the deponents claimed, inter alia, that they suffered no injury/ grievance on account of the working of the Ice Factory of the respondent and that there were proper arrangements for the drainage of the water flowing from the Ice Factory. Learned counsel pointed out that out of 43 persons who have sworn affidavits, 17 persons were signatories to the application (Exh. P. A.). It was, therefore, submitted by the learned counsel that 17 out of 31 signatories to the application (Exh. P.A.) having sworn affidavits in favour of the petitioner, non-consideration of this application by the learned Sessions Judge was immaterial. I am not impressed by this submission firstly for the reason that none of the persons who had sworn
(1) PLD 1962 Lab. 468 (2) 1972 SCMR 395 affidavits appeared before the learned trial Magistrate and secondly because Muhammad Ramzan who signed the application (Exh. P.A,) appeared as P. W. 1 before the trial Magistrate but no suggestion was put to him that he had not signed the application or that the application was not signed by the persons mentioned therein. In fact, said Muhammad Ramzan stated in cross- examination that he himself got the application (Exh. P.A.) signed from other persons and that Gulzar petitioner did not obtain the signatures nor did it bear the signatures of Gulzar. Moreover, question as to whether or not working of the Ice Factory caused injury or annoyance to the public in general is to be decided by the competent Court on the material placed on record before it and it is not for this Court to determine this question one way or the other in writ proceedings by looking at the affidavits placed on the record of this Court for the first time. This Court in its Constitutional jurisdiction is only to see whether the conclusions/findings of the Courts/Tribunals below are based on evidence or they have failed to consider some material evidence on the record.
' As pointed out above, I cannot go into the question of alleged nuisance being private or public nor can I substitute my own opinion for the finding recorded by the learned Courts below. In these circumstances, I am left with no alternative but to declare the impugned judgment of the learned Sessions Judge dated 27-2-1984 as without lawful authority and of no legal effect. This petition is accordingly allowed, impugned judgment of the learned Sessions Judge is set aside and it is directed that the learned Sessions Judge shall decide the revision petition of respondent No, 2 afresh in accordance with law and after taking into consideration all the relevant material available on the record including the application Exh. P.A. There shall be no order as to costs in the circumstances of this case.