QAISER AHMED HAMIDI, J.~For the purposes of this application filed under section 561-A Cr. P.C. The following statement of facts would suffice.
2. The applicant is running six looms for weaving silk cotton yarn on plot No. 48/11, Block 'B', Street No. 35, Sher Shah, Karachi, since 1982 under a valid licence issued by the competent authorities. It is alleged that respondent No.2 and 3 who are on inimical terms with applicant made an application under section 133 Cr. P.c. Against him in the Court of Assistant Commissioner and S.D.M. SITE Karachi, alleging therein that running of power looms day and night was causing discomfort to them and other persons of locality. This application was referred to S.H.O. SITE P.S. For inquiry. On receipt of the report the learned Magistrate passed the following order:- "Register the case under section 133 Cr. P.C. And ask the party to stay the looms and submit the reply within 15 days."
On 17-7-1984, the learned Magistrate passed a conditional order under section 133 Cr. P.C. On 18-8- 1984, the applicant submitted his written statement that the dispute between the parties was of private nature and no public interest was involved. On 27-12-1984, the learned Magistrate directed S.H.O SITE P.S. To ensure that operation of powers looms is stopped. The applicant challenged this order in criminal revision which was dismissed by VI Additional Sessions Judge, Karachi, on 28-5- 1985. This order as questioned in Cr. Misc. Application No.658 of 1885, which was accepted with the following order:- The petitioner's contention in the written statement file before the passing of the order dated 27-12- 1984, is that some other factories had been operating in the same area. The operation of the looms in the applicant's factory was not of such a serious nature as to have called for exercise of powers of engoring execution of conditional order through police during the pendency of the proceedings.
The order of the learned Magistrate to that extent was uncalled for and amounts to abuse of the process of the Court. However, the order of the learned Additional Sessions Judge refusing to interfere with the proceedings taken by the learned Magistrate under Section 133, Cr.P.C, does not call for interference under the powers vested under section 561-A Cr.P.C, but the injunction orders passed under section 142, Cr.P.C, are not considered by the learned Additional Sessions Judge in proper perspective need to be quashed as their operation tantamount to abuse of the process of the Court. The application is allowed to that extent. The learned Magistrate shall proceed with the proceedings and complete them within the next three months and pass appropriate orders, but the order of injunction passed by him prohibiting operation of looms during the enquiry proceedings stands quashed."
3. After the remand of the case the S.D.M, completed the proceedings by recording statement of three witnesses from the side of respondents No.2 and 3 and ten witnessses from the side of applicant. On 28-6-1988, the conditional order was made absolute by the learned Magistrate who passed the following order:- "Therefore, in light of my above discussion the opponent is hereby directed to stop operation of his looms from 10 P.M. At night to 5 A.M. In the morning, so that the discomfort which is caused to the community at night time is removed. The conditional order stands absolute to that extent."
4. The applicant challenged this order in Cr. Revision Application No.35 of 1988, which came to be dismissed on 6-6-1989. It is in these circumstances that the applicant has approached this Court seeking quashment of the above two orders.
5. I have heard Mr. Raja Sher Muhammad Khan, learned counsel for applicant, Mr. Javaid Haider Kazmi, learned counsel for respondents No.2 and 3, and Mr. Jalaluddin Baluch, learned counsel for State.
Mr. Kazmi, learned counsel for applicant has araised a preliminary objection about the competency of this application filed under section 561-A Cr.P.C. According to him the inherent powers of this Court cannot be invoked after the order of Sessions Judge passed under section section 439-A Cr.P.C, which has attained finality. Reliance is placed upon the following judgments:-
(i) Muhammad Samiullah Khan vs. The State (PLD 1963 Supreme Court 237), (ii Raio vs. Muhammad Oasim and another (1978 .P. Cr.LJ.706),
(iii) Muhammad Afaal vs. Amin-ul-Haaue (PLJ 1981 Cr.C. (Lahore) 36),
(iv) Abdul Rehman Balwa vs. Sultan and 9 others (PLD 1981 S.C. 522)
(v) Haji Pur Muhammad vs. Malik Muhammad Akram (1984 P. Cr.L.J. 2308)
(vi) Ghulam Muhammad vs. Khizar Hayat and 3 others (P.LJ. 1985 Cr. C. (Lahore) 38),
(vii) Ataullah Khan vs. Muhammad Akram and 5 others (1985 PCr.LJ. 2409)
(viii) Khwaja Fai^l Karitt1 vs. The State and others (1986 S.C.M.R. 483),
(ix) Noor-ur-Rehman vs. The State and another (1987 P. Cr LJ. 2171), and
(x) Shahlahan Alanurir Shahanshah. Advocate vs. Hail Muhammad Sharif and others (1989 P. Cr.L.J.
374).
7. No doubt a second revision under section 439 Cr. P.C. Before this Court is expressly barred, but clause (b) of sub-section (4) of section 439 Cr. P.C. Does not over-ride the provisions contained in section 561-A Cr.P.C., which powers are extraordinary in nature and have been preserved in the interest of justice. There are number of authorities supporting this view. The case of Muhammad Shafiaue vs. Abdul Hayee reported in 1987 S.C.M.R. 1371, is relevant. It therefore, follows that in suitable cases this Court can hear and decide an application under section 561-A Cr.P.C, against an order of Sessions Judge passed under section 439-A Cr. P. C.
8. Section 133 Cr.P.C, enumerates certain specific public nuisances and provides a summary remedy for their removal. When a case is brought before a Magistrate and he is satisfied that there is a prima facie case he may issue a notice to the party to appear before him and to show cases as to why he should not be made to remove the public nuisance. Therefore, a preliminary or conditional order is a per-requisite for drawing up proceedings under section 133 Cr.P.C., because it is only a conditional order which is to be made absolute. Mr .Raja Sher Muhammad Khan, learned counsel for the applicant has, therefore, contended that after the remand of the case to S.D.M, on fresh conditional order was passed and consequently the proceedings are liable to be quashed.
The objection was also raised before learned Sessions Judge who repelled it in the following words:- T find that the conditional order earlier passed by learned S.D.M, was not quashed by the Hon' ble High Court which is evident from the relevant part of the order of Hon' ble High Court reproduced above."
The conclusion drawn by learned Sessions Judge appears to be correct.
9. The term 'nuisance' means annoyance, something noxious or offensive. It is of two kinds, (1) public, (2) private, public nuisance has been defined in section 268 P.P.C., as an act or illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy in the vicinity. A private nuisance is any thing done to the annoyance of some particular individual or individuals as distinguished from public at large.
10. Mr. Raja Sher Muhammad Khan, learned counsel for applicant has contended with force that the nuisance if any, is private nuisance and not public nuisance, and consequently the provisions of section 133 Cr.P.C, were not attracted in this case. He has further submitted that section 133 Cr. P.C.
Is not meant for settling private disputes. Reliance is placed upon the following authorities:
(i) Sibte Hussain and another vs. Emperor (AIR 1937 Allahbad 785),
(ii) Ram Dayal Misra vs. Mst. Jagdamba Debi and another (AIR 1942 Allahabad 443),
(iii) Rama alias _ Langar through Bhairam vs. Murli Das (AIR 1943 Allahabad 19),
(iv) Sakina vs. Habib-ur-Rehman (P.L.D. 1968 Peshawar 21), (v) nayatullah vs. Abdul Majid (1969 P. Cr.L.J. 300) and
(vi) Durrani vs. Muhammad Jan and two others (P.L.D. 1979 Quetta 17).
11. A contrary view is, however, taken in Krishna Mohan Banerjee and another vs. A.K Guha (AIR 1920 Calcutta 550(1)), Raghunandan Parshad vs. Emperor (AIR 1931 Allahabad 433), Munalal Brahmin vs. Shridhar Rao Lele (AIR 1934 Nagpur 193(1)), Muhammad Akhtar vs. Haji Aleh Bux (1968 P. Cr.LJ 225), Muhammad Yousuf vs. The State and another (PLD 1974 Lahore 71) and Ataullah ' Khan vs. Sub Division Magistrate etc. (NLR 1986 Criminal 341 (2)). In the last cited authority a Division Bench of this Court observed as follows:- "In the present case the complainant had alleged that the petitioner had installed a power loom which created nuisance and the construction of the sheds for the purpose of additional power loom would create more nuisance to them. The learned Additional District Judge has considered each aspect of the case and has rightly pointed that section 133 Cr.P.C, covers the nuisance in this case."
In Muhammad Akhtar vs. Haji Allah Bux, reported in 1968 P. Cr.LJ. 225, the supreme Court observed that working of flour chakki and cotton ginning plant in crowded locality could be the cause of great nuisance. At page 226 it was remarked: - "The learned counsel next contended that as only Haji Allah Bux and few other neighbours were effected, a case of nuisance to the community as provided in section 133 CrP. C. Was not made out.
There is no force in this contention either Haji Allah Bux, responded and the other neighbour form part of the community and it was not necessary to prove physical discomfort and the injury to the health of the community as a whole." l2. Both these authorities, which I am bound to follow fully cover the case of respondents No.2 and 3.
The evidence which has come on record fully establishes the cause discomfort to respondent No.2 and 3 and other neighbours. The learned Sessiona Judge examined the evidence adduced by the parties carefully and came to following conclusion:- "It is an admitted position that the street in question where the looms of the applicant are functioning is predominantly a residential area and there is no other factory in that street, except the factory, of the applicant. It was also admitted by the witnesses of the applicant that two other factors from the said street were taken away that one of the witnesses of the applicant had also made an application U/s. 133 Cr.P.C, against one advocate for running such looms there. The witnesses examined by applicant Lal Deen appeared to be one way or other interested witnesses.
The applicant had failed to bring cogent evidence on record to show that the application against him U/s. 133 Cr.P.C, was ill motivated due to personal grudge or enmity of the respondents with him.
The respondents are his neighbours and to that effect the evidence the respondents and their evidence has not been challenged or controverted. Functioning of power looms, specially in the late and still hours of night, cannot but cause discomfort amounting the nuisance to the neighbours. Hence, in the circumstances mentioned above, the Impugned order of the learned S.D.M. SITE Karachi directing applicant Lai Deen to stop the operation of the looms from 10.00. P.M.
To S A.M. Is quite just and reasonable. It suffer from no illegality or infirmity. It' is unexceptionable and calls for no interference by this Court."
13. It is also contended on behalf of applicant that the learned Magistrate did not observe the procedure as laid down in section 139 and 140 Cr. P.C. Section 135 Cr. P.C. Gives the party an option to opt any of the two alternatives. Since the applicant did not apply for the appointment of jury, there was ho .Violation on the part of the Magistrate in this behalf.
14. No case for interference is made out and the application made under section 561-A Cr. P.C. Is dismissed.