1. ' This is an application under section 561-A, Criminal Procedure Code filed by Zafar Hussain for quashment of order dated 4-2-1990, passed by Syed Nazir Hussain Jafri, Sessions Judge, Karachi (South) in Criminal ReVision, whereby, order passed by S.D.M. Civil Lines on 12th December, 1989, under section 133, Criminal Procedure Code, was set aside. Briefly stated the relevant facts are that the applicant Zafar Hussain filed complaint under section 133, Criminal Procedure Code_ against respondent Muhammad Amin on the ground that latter was running tea-shop in which he used kerosene oil stoves which amounted to public nuisance. Public nuisance was also alleged on another ground that part of pavement was being used for the purpose of tea-shop unauthorized.
2. Such complaint was filed on 22-6-1987 in Case No,115 of 1989. Learned Magistrate obtained report from the police and passed order of scaling of the shop of Muhammad Amin On 28-6-1987.
3. Muhammad Amin -filed Civil Suit No,132 of 1987 in the Court of XIV, the Civil Judge H Class (South)
4. Karachi, and obtained order of status quo on 16-7-1987. Against the order of sealing by the S.D.M, Muhammad Amin filed Criminal Miscellaneous Application No,259 of 1987 in the High Court for quashment under section 561-A, Cr.P.C.- in which order of descaling was passed on 31-8-1987 and subsequently main application was disposed of vide order dated 2-11-1987, whereby, parties were directed to take the matter back to S.D.M. Civil Lines, who was ordered to hear both the parties and then dispose of the matter according to law.
5. ' Learned S.D.M. Examined complainant Zafar Hussain and six other witnesses and on the other hand Muhammad Amin and one defence witness Muhammad Arif were examined. After evaluating evidence produced by both parties final order was passed on 12-12-1989, whereby, it was held that nuisance was created by Muhammad Amin in his tea-shop by burning of kerosene oil stoves and consequently he was directed not to burn kerosene stoves in his shop. It was further held that no nuisance was established by use of public footpath unauthorisedly by Muhammad Amin in connection with running of his tea-shop and this matter of encroachment or removal thereof was left for decision by K.M.C. Against this order, both parties namely, complainant, Zafar Hussain and Muhammad Amin filed revision applications in the Sessions Court which were both dismissed as has been stated above.
6. ' Pivotal point before me for decision is whether burning of kerosene oil stoves for running of tea- shop is public nuisance as contemplated under section 133, Criminal Procedure Code or is it a nuisance or grievance of private nature. So far as section 133, Criminal Procedure Code is concerned the relevant portion for the subject in question is that it would also be public nuisance if the conduct of any trade or occupation or keeping any goods or merchandise, is injurious to the health or physical comfort of 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. These requirements mentioned above can be read in conjunction with section 268 of Pakistan Penal Code which defines public nuisance and provides that a person is guilty of 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. Reading both these provisions together will show that the legal requirements are firstly, that action complained of is injurious to the health or physical comfort of the community and secondly in consequence such trade or occupation is prohibited or regulated under some law and thirdly that injury, danger or annoyance is caused to the public in general who may have occasion to use any public right. In other words action complained of is to be such which is not approved of by public in the neighbourhood and they feel annoyed about it. It is also legal requirement that not only that but action or omission, if it is in connection with trade or occupation then in consequence such trade or occupation is either prohibited or regulated under the law. Now this is a very important requirement which shows that any act or omission will amount to public nuisance if there is contravention of any law or regulation which has to be followed in respect of such trade or occupation. In the instant case the nuisance complained of is in respect of running a tea-shop for which there has to be proper act and license is to be obtained for the purpose of running a tea- shop. In the instant case, it is stated the proper licence has been obtained. Now, if there was prohibition for doing this business in a particular area and then hotel or tea-shop was to be opened in that area then grievance of the neighbors would have been valid if they complained of any injury to the health or physical discomfort and then it could be said that it would be a matter of public nuisance. If there is no violation of law which regulates running of tea-shops then too it can be a public nuisance provided there is enough material and evidence of convincing nature that nuisance is of public nature and so many neighbours are unhappy about it and further act or omission is injurious to the health or physical comfort of the community or neighborhood at large.
7. Keeping in view the above requirements, definition of public nuisance as such cannot be laid down specifically but it will depend on the circumstances and peculiar facts of each case separately. In the case of Nooruddin v.Muhammad Shafi and 9 others reported in 1977 P Cr. L J 275, learned Single Judge of our High Court has held that use of footpath and public road for cooking food on large scale over open wooden fires in large degs making it uncomfortable for residents of locality to live in their houses and endangering their health and physical comfort is public nuisance. In that case, a civil suit was also pending. In the case of Muhammad Akhtar v. Haji Allah Bakhsh reported in 1968 P Cr. L J 225, Supreme Court of Pakistan has held working of flour Chakki and cotton ginning plant in a crowded locality, causing great nuisance to neighbours is public nuisance and so far evidence is concerned with regard to physical discomfort, it is not necessary to produce evidence of whole community but even evidence of few neighbours from part of community would suffice.
8. In the instant case, firstly, no law or regulation is violated, secondly, nuisance complained of is in respect of running a tea-shop, which is a very common feature in any locality. Thirdly, there is a licence for such tea-shop. Fourthly, the complaint is that in the tea-shop kerosene oil stoves are used, which again is a normal feature as kerosene oil stoves are used in the houses also. Fifthly, these stoves are used inside the tea-shop and not outside. Sixthly, persons from the neighbourhood have not complained. Even complainant Zafar Hussain is not from the neighborhood. Zafar Hussain is not proprietor of Shop No,2 in Roomi Centre as is claimed by him.
9. Shop No,2 is owned by one Syeda Nasim Kausar. Zafar Hussain is resident of Federal Capital Area.
10. He has not produced any document to show that he is attroney of Mst. Syeda Nasim Kausar. In the complaint before the S.D.M., Zafar Hussain cited four witnesses in support of the allegations and from them examined only one Ghulam Abbas. This witness Ghulam Abbas has nothing to do with Roomi Centre. He has failed to produce satisfactory evidence to satisfy that he was junior to Mr. Mansha, Advocate because he had passed Law examination in the year 1988 and applied for membership to the Bar Council on 29-5-1989, only a few months before the impugned order was passed. Other witnesses examined are not independent witnesses but are interested witnesses.
11. Hidayat Hussain is employee in the shop of Mst. Syeda. He is also related to complainant. He could not produce proof of his identity. He admitted the fact that fire from stoves has not caused any damage to any person. Witness Muhammad Islam is Peshkar of trial Court and has unlawfully carried out inspection himself. Witness Misal Khan Sub-Inspector visited the site in question but did not examine witnesses from area. This police officer has admitted that there are other tea-shops in the same locality which are also using kerosene oil stoves in their shops.
12. On the other hand, evidence led by Muhammad Amin is to the effect that he is tenant of Shop No,1 in Roomi Centre and landlady of the shop never complained regarding his business of tea-shop.
13. There are so many shops near and around his shop and no one from these shops has ever complained against him.
14. ' There are other tea-stalls in the same area which use same kind of kerosene oil stoves. He has further stated that Mr. Mansha, Advocate has office in Rubi Centre and he has never complained about any nuisance. Mr. Mansha had deposed as a witness at behest of the Advocate for the complainant. Muhammad Amin has further stated that shop No,2 is owned by wife of Mr. Mujtaba Hussain, Advocate. According to him, differences arose because he got installed water tap.
15. Otherwise, stoves which he used in the tea-shop do not emit smoke or flames as these arc pressure stoves. He was strenuously cross-examined on three occasions but still nothing worthwhile has come out in the cross-examination in favour of the complainant. Apart from that witness Muhammad Arif has fully supported version of Muhammad Amin and there is nothing in the cross-examination of this witness to suggest that he should not he believed.
16. ' I am of the view that in the instant case requirements of section 133, Cr.P.C. Are not fulfilled. As such there is not sufficient material on the record to say that case of public nuisance is made out. 1 am in full agreement with learned Sessions Judge in his assessment of evidence and reasons given by him in the impugned order to the effect that case is not made out of public nuisance. Additionally, I am also of the view that applicant has already invoked the provisional jurisdiction before learned Sessions Judge and after dismissal of revision, he cannot apply under section 561-A. Cr.P.C. For abashment of proceedings in respect of which revisional jurisdiction is already exercised and interference was declined. In support of the proposition, reliance is placed on the case of Attaullah Khan v. Muhammad Akram and 5 others reported in 1985 P Cr.L J 2409.
17. ' For the facts and reasons stated above I hold that no interference is called for under section 561-A, Cr.P.C., and application is dismissed for the reason that it has no merit.