1. By this Criminal Miscellaneous Application, the applicant Rafique Nasir has assailed the concurrent findings of the two Courts below i,e,, S.D.M., Garden Karachi South and learned VIII Additional Sessions Judge, Karachi. He sought following relief: "Wherefore, it is respectfully prayed that this Hon'ble Court may be pleased to call for the records and proceedings from the Court of learned A.C. And S.D.M., Garden South Karachi and from the Court of learned VIII Additional Sessions Judge, Karachi South and after hearing the parties quash/set aside the above orders."
2. The brief facts of the case are that on 5-10-1998 S.D.M., Garden Karachi received an application from Khidmat Committee alongwith an application against the applicant which was signed by 14 inhabitants of the area supported by 14 photographs. It was mentioned in the said application that the applicant installed heavy hammer machines which when they functioned the tremors caused thereby were so severe as if there was an earthquake. Due to the jolts/vibrations created by the functioning of said hammer machines the cracks had appeared in the surrounding buildings and even the foundations of the said buildings have been weakened.
3. Initially the S.D.M., Garden passed conditional order under section 133, Cr.P.C., on 16-4-1999 and he passed absolute order on 28-6-1999.
4. I have heard Mr. Mahmood Ahmed Khan learned counsel for the applicant and Mr. Muhammad Jamil learned counsel for private respondents as well as Mr. Arshad Lodhi learned A.A.-G. On behalf of the State. The latter has supported the impugned orders. I have also perused the material placed on record.
5. The perusal of record shows that on receipt of application the trial Court ordered preliminary enquiry and recorded statements of P.Ws. Ghulam Rasool, Abdul Razak, Abdul Majid and Abdul Aziz on 24-10-1998. The trial Magistrate also sent for the report from S.H.O. Concerned. After the receipt of report cognizance under section 133, Cr.P.C., was taken and accordingly conditional order under section 133, Cr.P.C., was passed on 16-4-1999.
6. After passing conditional order, statements of Asad Mahmood, Sanitary Inspector K.M.C. And Mir Aftab Ahmed Health Inspector D.M.C., Karachi South were recorded. They were cross-examined by the counsel for the parties. The report of legal advisor, D.M.C. Was brought on record. The applicant also filed the reply of order under section 133, Cr.P.C., which was also brought on record. On 28-6- 1999 absolute order under section 133, Cr.P.C., was passed by the learned S.D.M., Garden.
7. Further perusal of the record and proceedings of the trial Court shows that a 'Trade Licence' for 'blacksmith' was issued to the applicant by the Zonal Municipal Committee, Karachi South. This licence was issued under 'Karachi Municipal Corporation (Dangerous and Offensive Articles and Trades) Bye-laws, 1975. The definition of "Dangerous and Offensive Articles and Trades" have been defined under section 2(b) of the bye-laws 1975. The same is reproduced hereinbelow for the sake of ready reference: "2. Definition.---(a) .....................................
(b) "Dangerous and Offensive Article and Trades" respectively means the article and trades defined as dangerous and offensive articles or trades in pursuance of paragraph 5 under heading "Public Safety" in Schedule II to the Ordinance;"
(c) .
(d) .
(e) ..
8. The conditions for grant of licence are specified in section 4 of the bye-laws of 1975. It will be appropriate to reproduce hereinbelow clauses (g) and (h)(iii) of section 4 of the bye-laws, 1975: "Section 4.................
(g) oven, furnance or bhatti, wherever present so arranged that none of the smoke or gases escape into the room in which it opens and is provided with a suitable chimney of sufficient height for the disposal of smoke; gases;
(h) ..
(i) ..
(iii) any operation connected therewith is not likely to be a nuisance or health hazard to the people residing in the locality."
' It will be also pertinent to reproduce herein under -section 133, Cr.P.C., for the sake of convenience: "133, Cr.P.C. Conditional order for removal of nuisance.---(1) Whenever a District Magistrate, a Sub- Divisional Magistrate or a Magistrate , of the First Class considers, on receiving a police report or other, information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, or that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated, or that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion, should be prevented or, stopped, or." (Underlining is mine).
9. The plain reading of the above provisions show that if a person is engaged in the trade or occupation which causes nuisance, to the people who reside in a locality, the Magistrate is competent and justified in taking action under section 133, Cr.P.C., and he is empowered to stop such nuisance.
10. The evidence of the inhabitants of locality is supported by the evidence of official witnesses.
11. The evidence of witness Asad Mehrnood Exh.1, Officiating Inspector shows that when he visited the site, he found that 4 (four) leth machines and hammer machine were installed at the site. The roof of shop was broken, floor was 'Katcha' and one motor was installed. No safety provisions were made.
' According to KMC bye-laws roof, walls, and floor must be cemented. No, N.O.C. Was obtained from the area people prior to obtaining licence for trade of blacksmith which was a condition precedent for issue of such licence. He has produced certificate Exh. 1/A issued by the Director, Health Services KMC which is based on the inspection report of Area Inspector. The contents whereof are reproduced hereinunder in extenso: "To ' The Assistant Commissioner and S.D.M., Garden South, Karachi.
' SUB: CASE NO.43 OF 1999, RAFIQ NASIR UNDER SECTION 133, Cr.P.C.
' With reference to your Letter No,AC/SDM/Garden South/427 of 1999, regarding heavy Machinery Workshop on Plot No,28, Ghulam Hussain Qasim Road, Garden West, Karachi.
' The site under complaint has been inspected by Area Inspector. He found that the trade is running in the Commercial Area in a single storey building and the trade is not creating any nuisance and vibration in the locality.
' Trade Licence No,1216 (photo copy enclosed) was issued by the defunct Zonal Municipal Committee (South) in the year 1992 and renewed for the years 1998-99 by the District Health Officer, D.M.C. South.
' The relevant rules (Dangerous and Offensive) copy is attached herewith please.
(Sd.)
(Director Health Services, KMC)."
' The name of Area Inspector on whose report Exh.1/A was issued is not disclosed in the certificate and Inspector who reported to Director Health Services, KMC as well as Director, Health Services KMC were not examined.
' The position of the site as stated by witness Asad Mehmood has not been challenged by the applicant and nothing beneficial to the present applicant came on record from the lengthy cross- examination of this witness. Witness Mir Aftab Ahmed, Health Inspector, D.M.C., South, Karachi stated in his evidence before the trial Court that he visited the site and found cracks in the walls of the buildings of Mohalla people due to the throbbing of two hammer machines against which the applicants made complaint. Besides that two movable furnaces were installed there, which were not covered with 'Chimnies', with the result the heat was not reduced and that heat also affected the houses of the neighbours. One generator is also installed there and it is not covered with any safety device and no safety measures were taken in the shop. The installation of the aforesaid machines which created nuisance was not denied in the cross-examination. This witness admitted in cross-examination that the work which is going on in the blacksmith shop was not only dangerous to the health of workers but it was also injurious to the health of the people living in the vicinity. The inspection report Exh.2/B is in conformity of his evidence. Exh.8 shows that only Director Health Services KMC is vested with powers to issue health certificate for issuance of Trade Licence and Health Department Government of Sindh is not competent to issue it. This fact is proved from the Notification No,Admn/SC/Estt 346/1998.
' In the case of Haji Abdul Aziz and others v. Haji Dost Muhammad and 5 others reported in 1999 PCr.LJ 31 it was observed at page No,34 as under: "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 of the removal of such trade or occupation."
' In the case of Salamat Ali v. Deputy Commissioner reported in 1997 M LD 2122 while dismissing the petition it was observed at page No,2123 as under: "It is the admitted position that the area wherein the chilly grinding machine and the rice husking machine are being operated by the petitioner is a thickly populated area. During these days when every effort is being made to remove the silent enemy of pollution adversely affecting the health of the citizens, the operation of the chilly grinding and rice husking machines has rightly been stopped by the Deputy Commissioner. It can be expressed with confidence that practically it becomes difficult even to take the breath when the chilly grinding machine is working. The vibration of the chilly grinding and rice husking machines is also a source of nuisance. No doubt the licence was issued during the years 1978-79. However, a sufficient period has elapsed in between 1978-79 and passing of the impugned order, dated 12-7-1993 with the passage of time there is increase of population in the urban areas."
' In the case of Ghulam Rasool v. Haji Allah Wasaya reported in 1995 PCr.LJ 385 it was observed at page No,37 as under: "The power of District Magistrate under section 133, Cr.P.C., is an important power. It empowers him to remove various facts of the public nuisance. The Legislature in its wisdom has clothed this important functionary of the State with these powers to provide speedy relief to the public who may have to confront a public nuisance in one form or the other. In contemporary age this provision has assumed a greater significance. In an area of population explosion, industrial growth, fast expanding cities, sky-rocketing, skyscrapers, instances of public nuisance and environmental population do multiply and they become worst confounded by the lack of civic sense and the slow and inefficient pace of agencies entrusted with the task of providing civic amenities and looking after matters of public hygiene. The District Magistrate has to play a dynamic role while acting under the aforementioned provisions of law and defining its parameters." Halsbury's Laws of England (Fourth Edition, Volume 34) page 305 defines public nuisance as: "A public nuisance is one which inflicts damage, injury or inconvenience on all the Queen's subjects or on all members of a class who come within the sphere or neighbourhood of its operation.
However, it may affect some to a greater extent than others."
Thus, the contention that since the applicant carried on trade under licence, therefore, proceedings under section 133, Cr.P.C., were not maintainable is misconceived. The issuance of licence did not authorise any one to cause nuisance and trouble to the public. It was observed in the case of Rajagopala Chettiar v. Samdum Begum reported in AIR 1943 Madras 357 that though the Legislature has under local or special Acts, left certain trades or occupations to the control of local and municipal boards and provided remedies thereunder, the existence of such an alternative remedy does not deprive the Magistrate of jurisdiction to pass an order under this section. The Magistrate has jurisdiction to regulate the manner in which a trade is to be conducted in such a way as not to be nuisance to the community.
' The authorities in case of Muhammad Shafique v. Abdul Hayee reported in 1987 SCM R 1371, Naik Muhammad v. Yar Muhammad reported in 1971 PCr.LJ 927, Muhammad Afzaluddin Beswas v. Diwi Jandra Nath Das reported in PLD 1965 Dacca 366, The State v. Muhammad Jamil and others reported in PLD 1960 (W.P.) Karachi 555, Inayatullah v. Abdul Majid reported in 1969 PCr.LJ 300, C.V.
Multhuvelappen v. K.K. Narayan Yanan Nair reported in AIR 1964 Kerala 252, cited by the learned counsel for applicant are distinguishable from the facts and circumstances of the present case.
' The upshot of the above discussion is that there are concurrent findings of the two Courts' below. It is well-settled that concurrent findings could be set aside very sparingly, when it is found that gross injustice was made. The applicant carried on trade not only in violation of the conditions of Licence is issued to him under Bye-Laws 1975, but he also caused nuisance by installing the said hammer machines. The minute perusal of record and proceedings shows that by installing heavy machinery workshop at the site, heavy tremors and vibrations were caused due to which the cracks resulted in the walls of the residential houses adjacent to the said workshop. The operation of such machines was injurious to human life and also for the environment. Thus, the order of the two Courts below does not suffer from any legal and factual infirmity. Consequently present Criminal Miscellaneous Application under section 561-A, Cr. P.C. , stands dismissed.