' Ghulam Nabi moved an application under section 133, Cr.P.C. Against Imtiaz Butt and Fida Butt, respondents, before the Magistrate 1st Class, Mirpur. The application was moved on August 30, 1987. It was alleged that the petitioner was resident of village Datyal, Tehsil Mirpur. A public passage passed through south of his house. It was also used as drain. The passage was quite ancient as it was under the use for the last 40 years. The non-applicant-respondents were quarrelsome people.
They started raising wall in the passage and caused nuisance. The building material was also collected on the site. They were also creating law and order situation, as such there was an imminent danger of breach of peace. It was prayed that action under section 133, Cr.P.C. May be taken to remove the obstruction and nuisance. The application was accompanied by the site-plan and an affidavit. Ghulam Nabi, Muhammad Siddique and Muhammad Sadiq were examined in preliminary inquiry and the conditional order was passed on the same day whereby the Magistrate expressed his satisfaction in causing of nuisance by obstructing the passage. The respondents were asked to remove such obstruction or nuisance and to appear before the Magistrate on September 15, 1987. The respondents, in their written objections, filed on January 2, 1988, denied the existence of public right in respect of the way in dispute. In addition to denial of creating obstruction or nuisance in the land in dispute, it was explained that the site in dispute was part of the land in possession of the respondents who purchased the same through a registered sale deed and the applicant was tryilig to divert the course of water of his house and land towards their land. The public way passed through the north side of the house of the applicant which was neither obstructed nor was the subject of nuisance. In presence of the aforesaid denial, in written statement, of public right in respect of the way in dispute, the Magistrate in compliance with the provisions of section 139-A, Cr.P.C. Asked the non-applicant-respondents to lead evidence in support of their denial. The witnesses were produced from both sides. The Magistrate after recording evidence of the parties, arrived at the conclusion that the way in dispute was not a public way, as such provisions of section 133, Cr.P.C. Were not attracted in the case. He dismissed the application on August 30, 1987. The revision before the learned Sessions Judge also failed. The aforesaid order of the Magistrate and order of Sessions Judge passed in revision on November 19, 1990, are assailed in the present petition.
2. Mr. Muhammad Rafique Dar, the learned counsel for the petitioner argued that the Magistrate failed to comply with the provisions of section 139-A, Cr.P.C. As the non-applicant-respondents were not questioned on their appearance before the Magistrate whether they denied the existence of public right in respect of the way in dispute or not. Moreover, according to the learned counsel, the Magistrate was not competent to dismiss the application as on coming to the conclusion that the denial of the public right in the way was proved, he should have stayed the proceedings in the application by allowing the parties to get their rights settled through the Civil Court. He relied on 1986 P Cr. L J 2897. Mr. Abdul Ghafoor Qureshi, the learned counsel for the opposite side controverted the aforesaid points and emphasised that the respondents expressly denied the existence of public right in respect of the way in dispute. Therefore, there was no need to question them separately about the existence of public right in the way in dispute. He cited Ramkripal Singh's case (AIR 1945 Pat. 309).
3. Section 133, Cr.P.C. Provides an adequate remedy in urgent matters relating to unlawful obstruction or nuisance in any way, river or channel lawfully used by public or from any public place. On receiving information from police or otherwise, the Magistrate, on his satisfaction that such unlawful obstruction or nuisance was caused in respect of subject of dispute lawfully used by public, was empowered to make conditional order by requiring the person causing such obstruction or nuisance, to remove such obstruction or nuisance or to desist from doing the same and if he objected so to do, to appear before him or some other Magistrate, at a time and place so fixed in the matter. Section 139-A, Cr.P.C. Further provides that on appearance of the person complained against, the Magistrate shall question him as to whether he denies the existence of public right in respect of the way, river, channel or place and if he does so, the Magistrate shall, before proceeding under sections 137, 138, Cr.P.C., enquire into the matter. In case of denial of the public right, the onus was placed upon the person making such denial to prove his claim to denial of the existence of public right so disputed. The provisions of section 139-A. Cr.P.C. Were introduced to avoid unnecessary lengthy proceedings as, in case of proof of denial of the existence of public right in respect of the way, river, channel or place in dispute, the Magistrate was empowered to stay the proceedings by allowing the parties to get their rights settled through the Civil Court.
4. In present case, on appearance of the respondents, they filed written objections in which they denied the existence of public right in the way in dispute. Once a written objection was submitted and existence of the public right in respect of the way in dispute was expressly denied, it was not deemed expedient to further question the respondents whether they denied the existence of public right or not. This was so as on questioning the respondents, they would have reiterated their position taken in their written statement. Therefore, to question the person against whom report was made, in presence of his written denial, was unnecessary. The opinion expressed in Ramkripal Singh's case (AIR 1945 Pat. 309) is squarely applicable to the present case. In that case, an identical objection was raised and the learned Judge overruled the objection in the following manner:- "Mr. De's other point is a technical one. He says that the second party upon appearance was not questioned by the Magistrate as to whether he denied the existence of any public right, as required by S.139-A. The answer is that in this particular case it was unnessary for the Magistrate to put any such question because the second party directly upon appearance put in a statement denying the existence of any public right. To require the Magistrate to question a party as to whether he intended to do what he had already done without being asked, would be, in my judgment, to quote the words of Sir George Rankin in a well-known case, 'to pile technicality upon unreason'."
The learned counsel for the petitioner relied on the decision of this Court wherein the principle contemplated under section 139-A, Cr.P.C. Was enunciated. There is no dispute with the principle laid down in the aforesaid authority but the fact remains that in view of the distinguishable facts of the present case, it is not deemed expedient to quash the proceedings on the ground of omission to strictly adhere to the technicalities. The non-observance of the technicalities has not resulted in prejudice to the petitioner and such a technical departure does not violate or defeat the spirit of law contained in section 139-A, Cr.P.C.
5. The learned counsel for the petitioner has no dispute with the finding of facts recorded by the subordinate Courts as the witnesses of the applicant and the applicant himself expressly admitted that the way in dispute was exclusively used by him and no violation of public right was involved in it. In presence of the aforesaid position, it was rightly held that the provisions of section 133, Cr.P.C., were not attracted at all. The learned Magistrate, therefore, correctly proceeded to hold that the claim of the petitioner was not proved. However, on proof of denial of the existence of public right in respect of the way in dispute, the application was not liable to dismissal but the proceedings were to be stayed, till the parties secured verdict of the Civil Court in respect of their respective claims, relating to the subject of dispute. The order is, therefore, modifiable to that extent. The petition is, therefore, partly accepted. The order of dismissal of the application is reversed. The application shall remain on the file of the Magistrate till such time, when the parties secure the decision of the Civil Court in respect of their claim to the subject of dispute. The petition is disposed of accordingly.