This is an application under section 561-A, Cr. P. C., for quashment of proceedings commenced on an application filed by one Muhammad Amin in the Court of District Magistrate, Lahore, under section 133, Cr. P. C. It appears that this application was dealt in the Court of Mr. S. A.
A. Hakeem, Magistrate Ist Class, Lahore, who passed an order on 19th October 1966, to the effect that the factory in dispute be closed. And for purpose of giving an opportunity to the present petitioner to show cause against that order, the learned Magistrate fixed 5th November 1966, as a date for hearing in the case. This order evidently was passed under subsection (1) of section 133, Cr.
P. C. The concluding portion of subsection (1) reads as follows :- "Or, if he objects so to do, to appear before himself or some other Magistrate of the first or second class, order, and move to have the order set aside or modified in the manner hereinafter `provided'."
2. The learned counsel for the petitioner himself has stated that after the order, dated 19th October 1966, the petitioner instead of moving the Magistrate in the matter under the above-quoted provision, straightaway came to the High Court and filed this petition because he thought that the learned Magistrate had no jurisdiction in the matter.
3. The learned counsel for the petitioner has raised only one contention and he says that this, is the only point involved in the matter, namely:- " That the application filed by the respondent (a copy of which having been certified by him to be true copy is Annex `A') indicated that the nuisance alleged was only in respect of the property or comfort of the respondent and his family and not qua the public (community)."
Paragraphs 9, 10 and the prayer paragraph of this application 1 shoe that certain other proceedings were also taken by other authors relating to the question whether public nuisance had been caused by the factory in dispute. In any case, the alle--gation was made to the following effect: "Furthermore the corporation authorities have also certified that the property No. S-37-R-130 is situated in a residential area and no factory can be installed therein."
Similarly, an allegation has been made in the application that the Department of Industries, Government of Pakistan, have also: held that the premises in dispute or not fit for running the factory. In the prayer paragraph, it is particularly requested by the respondent that the learned Magistrate should take action under section 13V Cr. P. C., for "the removal of the public nuisance so caused by the respondent". In view of these averments and assertions, it cannot be said that there is no allegation as to public nuisance made in this application.
4. There is another aspect of the matter. Quashment under section 561-A, Cr. P. C. Cannot be resorted to, unless it is shown that the petitioner seeking a redress under that provision has no other specific remedy available to him under the Criminal Procedure Code. In this case, evidently the petitioner had the remedy, and that was the opportunity or showing cause against the order under subsection (1) of section 133, Cr. P. C. And under section 137, Cr. P. C. If after having shown cause against such an order the petitioner still felt aggrieved, he could have gone in revision against such an order passed by the learned Magistrate. Therefore, I am of the view that this petition is not competent.
5. There is still another aspect of the matter. The proceed--ings under section 133, Cr. P. C. Are to be taken by the Magistrate concerned "on receiving a police report or other information and on taking such evidence, if any, he thinks fit". The provision quoted above is clear enough that apart from the responsibility of the informant, a duty is cast upon the Magistrate taking cognizance of the matter, to make enquiry in the matter, and the duty being of public nature, it, is not only the petitioner's statement which will determine the question whether or not a final order under section 133, Cr. P. C.
Is to be passed but also the sum total of the evidence brought before the learned Magistrate which will be the determining factor for passing an order under section 133, Cr. P.C.
During the dictation of this order, the learned counsel brought to my notice that a 'civil suit filed by the respondent in respect of the same matter has been dismissed by the civil Court. I have perused the copy produced by the learned counsel. The dismissal is under Order IX, rule 8, C. P. C., because of the absence of the respondent. I have also perused the copy of the plaint. The nature of enquiry before a civil Court in such like matter is not entirely the same as it is under section 133, Cr. P. C.
That circumstance, by itself, is not sufficient to quash the proceedings to be conducted under section 133, Cr. P. C.
In these circumstances, it is not correct to say that it is a fit stage for the High Court to determine the question whether or .Not nuisance is proved to have been caused of course as envisaged under section 133, Cr. P. C. Finding no merit in this petition, it is dismissed.