' Through this Constitutional petition, Shah Muhammad challenged the vires and legality of the order, dated 4-2-1998 passed by the learned Additional Sessions Judge, Bahawalpur, whereby he dismissed the revision petition filed against the order of the Assistant Commissioner. Khairpur Tamewali, dated 30-9-1996.
2. The brief facts giving rise to this Constitutional petition are that Faiz Ahmad and others (respondents Nos.3 to 6-applicants) moved an application before the Assistant Commissioner/Magistrate 1st Class, Sub-Division Khairpur Tamewali that Shah Muhammad (petitioner-respondent) had installed a diesel engine operated "Chakki" in their crowded "Abadi", which was a source of nuisance to the residents of the "Abadi" and was also causing damage to the adjacent properties. The learned Magistrate issued notice to the petitioner-respondent and after recording evidence of the parties vide order, dated 30-6-1996 directed Shah Muhammad to remove the said Chakki. Shah Muhammad then filed a revision petition against the said order, which was dismissed through order, dated 4-2-1998 by the learned Additional Sessions Judge, Bahawalpur.
3. The learned counsel for the petitioner submitted that the learned Magistrate had violated the mandatory provisions of section 139-A, Cr.P.C. And with the removal of the Chakki the petitioner as well as his family members would suffer irreparable loss. He relied upon the case of Ghulam Rasul v. Haji Allah Wasaya etc. 1995 PCr.LJ 385, Muhammad Younus Arvi v. Muhammad Malik 1986 PCr.LJ 2897, Abdul Wahid v. Muhammad Shafi and Assistant Commissioner Pishin PLD 1978 Quetta 66.
4. There is absolutely no force in the above contentions. In the instant case there is no violation of the provisions of section 139-A, Cr.P.C. It is a case of removal of a nuisance. The Magistrate issued a show-cause notice to the petitioner and thereafter recorded evidence of both the parties. The petitioner produced seven witnesses. Even the learned Magistrate personally inspected the spot. A fair opportunity was given to the petitioner to justify the installation of the Chakki in the residential area. In the case of Ghulam Rasul, the instances of public nuisance were mentioned, but those cannot be considered to be exhaustive. Even in the said case, the following were considered to be a public nuisance:
(vii) a noise during some lawful trade which is injurious to the physical comfort of the community;
(x) such a use of loudspeakers which cause general public annoyance and discomfort in an area.
' It is obvious from the above that even lawful trade which is injurious to the physical comfort of the community and the use of the loudspeaker which causes general public annoyance and discomfort are also public nuisance within the Meaning of section 133, Cr.P.C.
5. The petitioner installed a Chakki, which is operated with a diesel engine. Obviously, the noise made by the diesel engine and the tremor and vibration caused by the Chakki are not only source of discomfort and annoyance to the inhabitants of the locality, but also are injurious to human health. The constant noise shatters the human nerves and the smoke of diesel effects the general health. In the other two cases, the proceedings were not taken in accordance with section 139-A, Cr.P.C. Which is not the case in this petition.
' In the case of Muhammad Akhtar v. Haji Allah Baldish 1968 PCr.LJ 225 the Supreme Court in a similar case of flour Cahkki and cotton ginning plant observed as follows:-- "Evidence was led by both the parties which disclosed that the working of the flour Chakki and the cotton ginning plant caused vibration and thereby resulted in physical discomfort to the neighbours. It was also injurious to their health as fine particles of cotton emitted from the ginning plant remained suspended in the air. A conditional order accordingly made directing the petitioner to cease working the flour Chakki and the cotton ginning plant against which he moved the High Court in revisional jurisdiction."
' While dismissing the petition, it was further held: "In the case of wrongful occupation of immovable property or exercise of any dominion over it the time factor is a relevant consideration in determining the application of section 133, Cr.P.C., but the same consideration does not apply to the carrying on of a obnoxious trade or occupation resulting in continuing physical discomfort and injury to the health of the neighbours." #TBS PCr.LJ #TBE
7. The petitioner operated the disputed Chakki even without obtaining a licence. The petitioner has no legal right to cause discomfort and health problems to the inhabitants of the locality for earning his livelihood. Even suchlike small units cannot be permitted to operate in residential areas. Hence, the writ petition is dismissed in limine having no merits.