' Haji Abdul Aziz along with his brother Muhammad Ismail and one Abdul Manan, all residents of Gali Qasaban Wandhi Ghundwali, Tehsil and District Mianwali were carrying on the business of hides and skins in the area of Wandhi Ghundwali of District Mianwali. On account of foul smell and odor emanating from the said business and becoming a serious nuisance for the entire neighborhood an application under section 133 of Code of Criminal Procedure was moved by Haji Dost Muhammad, Haji Abdul Hameed and Ghulam Sarwar (respondents Nos.1 to 3) residents of Gali Qasaban Wandhi Ghundwali, Tehsil and District Mianwali, on the 10th of May, 1994, alleging inter alia that the petitioners were carrying on the business of hides and skins in a residential area resulting in a public nuisance. A Magistrate 1st Class accepted the application under section 133 of the Code of Criminal Procedure vide his order, dated the 18th of September, 1994. Aggrieved by the order of the Magistrate, dated 18th of September, 1994, the petitioners filed a revision petition against the said order and their revision petition was accepted by Haji Abdul Aziz Shah, Sessions Judge, Mianwali, vide judgment/order, dated the 6th of December, 1994, primarily on the ground that no show-cause notice as envisaged under section 135 of the Code of Criminal Procedure had been issued, neither had evidence been recorded as stipulated under section 137 of the Code of Criminal Procedure. Consequently, the revision petition was accepted and the order, dated the 18th of September, 1994, passed by the Magistrate 1st Class, Mianwali, was set aside and the case was remanded to the Court of Ilaqa Magistrate to decide the application afresh under section 133 of the Code of Criminal Procedure after observing due process of law.
2. Accordingly, a show-cause notice was issued to the petitioners by the Magistrate seized of the matter on the 18th of April, 1995, and vide judgment/order, dated the 18th of May, 1995, the application under section 133 of the Code of Criminal Procedure was once again accepted.
' The petitioners again filed a revision petition which was dismissed on the 10th of April, 1997, by Mr. Zia-ur-Rehman Khan, Sessions Judge, Mianwali, primarily on the ground that the petitioners were carrying on the business of storing, processing; cleaning and dealing in raw hides and skins without obtaining the necessary license from the Municipal Committee of Mianwali.
3. Learned counsel for the petitioners submitted that the provisions of sections 133, 137 and 139-A of the Code of Criminal Procedure had been violated, that the remand order, dated the 6th of December, 1994, had become final and required issuance of notice and recording of evidence, that nobody appeared to give evidence in support of the application under section 133 of the Code of Criminal Procedure that site inspection by an Ilaqa Magistrate cannot be equated with evidence and that an earlier application under section 133 of the Code of Criminal Procedure had been dismissed on the 27th of August, 1960. Reliance was placed by the learned counsel upon the following cases:--
(i) Muhammad Yousaf v. The State and another PLD 1974 Lah. 71,
(ii) Azam Khan and another v. The State and another 1989 PCr.IJ 2286 and
(iii) Ghulam Mustafa v. Muhammad Ismail and 2 others 1992 MLD 67.
4. Learned counsel appearing on behalf of the State submitted that the petitioners had already shifted their place of business to another locality and this fact was not denied either by the learned counsel for the petitioners or the petitioners themselves who were present in Court. Therefore, learned counsel for the State submitted that this petition had become infructuous and prayed that it may be dismissed as such.
5. Learned counsel appearing on behalf of Haji Dost Muhammad, Haji Abdul Hameed and Ghulam Sarwar (respondents Nos.1, 2 and 3) who had brought the application under section 133 of the Code of Criminal Procedure Submitted that the petitioners were carrying on their trade illegally and unlawfully without obtaining the necessary license which fact was not controverted by the learned counsel for the petitioners.
6. Vide order, dated the 15th of January, 1998, learned counsel appearing on behalf of the State was directed to obtain instructions from the Deputy Commissioner of Mainsail as to whether any State land is available which can be given to the petitioners for carrying on their trade. Consequently, on the 3rd of February, 1998, learned counsel appearing on behalf of the State after obtaining instructions from the Deputy Commissioner of Mainsail stated that no State land was available in the District and, therefore, the State was not in a position to offer any alternate land to the petitioners.
7. Article 18 of the Constitution of the Islamic Republic of Pakistan of 1973, guarantees freedom of trade, business or profession by laying down that:-- "Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a Corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
' Clause (a) of the proviso to Article 18 provides for the regulation of any trade or profession by a licensing system.
Admittedly, the necessary license was not obtained by the petitioners. Therefore, there has been no violation of Article 18 of the Constitution of the Islamic Republic of Pakistan of 1973.
8. Section 133 of the Code of Criminal Procedure gives the power to Magistrates for removal of a nuisance including the power to prohibit the conduct of any trade or occupation or the keeping of any goods or merchandise which is injurious to the health or physical comfort of the community and also gives the power for the removal of such trade or occupation. However, while exercising powers under Chapter X of the Code of Criminal Procedure dealing with public nuisances the Magistrates have to exercise their power by observing the rules of natural justice and the principle of Audi alter am partum by giving necessary notice to all the parties concerned and hearing their grievance, which exercise was undertaken and complied with in the instant case twice over.
9. There is no merit in this petition which is dismissed.