' This is a reference by the Sessions Judge, Jhelum recommending quash ment of the order dated 5.6-75 passed by Ch. Zafar Aziz, Magistrate, First Class, Jhelum issuing bailable warrants of Pervaiz Kayani petitioner in the proceedings drawn up against him and others under section 133, Cr. P. C.
On the complaint of Raja Muhammad Ashraf (respondent).
2. The petitioner was alleged to have blocked a public way. Therefore, the matter was put up before a Magistrate calling for action under section 133 of the Code of Criminal Procedure. The Magistrate summoned the petitioner, but he failed to appear before him despite service. The Magistrate then issued his bailable warrants. Aggrieved by this order, the petitioner filed the revision petition before the learned Sessions Judge, which is now before me.
3. It was contended by the petitioner and conceded by the learned counsel for the State that the impugned order was without jurisdiction because in the present proceedings the Magistrate was not competent to issue bailable warrants of the petitioner on his failure to appear after service of summons. The Magistrate could have proceeded to make a condttitional order in the absence of the petitioner. Moreover, the proceedings under section 133 of the Code of Criminal Procedrue are of a civil nature.
4. I have considered the matter. On perusal of the trial Court proceedings I find that the petitioner was never served with the summons and the summons had also not been received back; yet his bailable warrants of arrest were ordered to issue and there was also nothing to indicate that the petitioner was avoiding the service of summons. It appears thst this aspect of the case was not put before the learned Sessions Judge by either side, therefore, it skipped his notice. It was also not urged before me.
' However, had there been a proper service of the summons and the petitioner had faded to appear in Court without showing a reasonable cause, then his warrents could have hears issued as provided under section 9J of the Criminal Procedure Code. No doubt, the proceedings under section 133, Cr. P. C., are of a civil nature and the person proceeded against is e. Respondent and not an accused, he can even appear as his own witness True, in these proceedings a conditional order against a person accused of having infringed a public right can be male and he can be asked to explain why the order should not be male absolute. Yet all this would not mean that whenever the Court wants to examine hi n before proceeding further in the matter, it cannot do so plain reading of section 133, Cr. P. C. Would show that there is no bar to summon him. The orders passed under this section are orders in a criminal proceeding and if the person complained against fails to appear after due service of summons, coercive measure can be adopted against him for his appearance in Court before takin further proceedings in the matter. I am M the view that the reference I not based on a sound proposition of law. The revision petition would, however, still succeed, because the petitioner was not served with the summon, and his bailable warrants were issued without any justification. The impugned order is, therefore, set aside. The record of the case be sent back to the trial Court with a direction to conclude the proceedings within a month from the date of the receipt of this order.