' On an application, dated 6-8-1997, made by the residents of Khawaja Park, Sargodha that Khalid Naseem, respondent herein, had installed Saw Machine (Ara) in the residential area which was causing inconvenience and trouble to the residents, the Commissioner, Sargodha Division, Sargodha marked the same on 18-8-1997 to Illaqa Magistrate/City Magistrate for necessary action.
On recording the statements of few persons, the City Executive Magistrate, Sargodha passed a conditional order under section 133 of Cr.P.C., on 19-91997. As respondent No,1 did not appear before htin, the said order was made absolute by the Magistrate on 7-10-1997. This order was challenged by respondent No,1 in revision which was accepted by the learned Additional Sessions Judge, Sargodha on 8-111997, who set aside the same with direction to respondent No,1 to appear before the Magistrate. He filed reply before the Magistrate, dissatisfied with his stance, he passed another order, dated 4-12-1997 directing him not to carry on the business of Saw Machine in the premises.
The case was adjourned by him for production of evidence. This order was again challanged by respondent No,1 in revision but the order of the Magistrate was upheld. Thereafter, on receiving the evidence, produced by the parties, respondent No,2 vide his order, dated 20-4-1998, directed respondent No,1 to close the business of Saw Machine in the premises. A revision was filed by him which was accepted by, the learned Additional Sessions Judge, Sargodha, who has set aside the same vide impugned order, dated 3-6-1998. Apart from interfering with findings of fact recorded by the Executive Magistrate, he took the view that the obstruction could not be removed under section 133, Cr.P,C., as it was a matter of civil nature. This writ petition has been filed by the petitioner to assail the same.
2. It is contended by the learned counsel for the petitioner that order, dated 20-4-1998 had been passed by respondent No,2 on due consideration of the evidence brought on record before him, which has been illegally set aside by respondent No,3 in revisional jurisdiction. It is further contended that the considerations which weighed with the learned Additional Sessions Judge for setting aside of the order passed by respondent No,2; were neither relevant nor find justification from the record. Conscious of the jurisdictional constraints of this Court in writ, he submitted that the matter may be remitted to the Magistrate for decision afresh, by setting aside the orders.
3. The learned counsel for respondent No,1 contends that respondent No,2 had passed the order without having due regard to the evidence on record which was rightly set aside by respondent No,3. It is contended that the findings of fact recorded by respondent No,3 in exercise of revisional jurisdiction, cannot be substituted by this Court in writ jurisdiction.
4. The case of the residents of Khawaja Park and in particular the petitioner, whose house is adjacent to that of respondent No,1 where the latter has installed a Saw Machine and is carrying on his business, was that, the noise and vibration was causing a lot of inconvenience and trouble for his family as the same was being run by respondent No,1 day and night and it had become almost difficult for them to live in the premises. It was further his case that it was a residential area where no trade or industry could be carried on. The assertion of the petitioner was controverted by respondent No,1 whose stance was that Plot No,43, where he had installed a Saw Machine, was situated in the factory area, for which purpose, he had purchased the said plot. Respondent No,2, while passing the order opined that it was a residential area where the installation and running of the saw machine was causing inconvenience to the residents and was a source of nuisance for them. When the matter came up before respondent No,3 in revision, the learned Additional Sessions Judge came to the conclusion that Plot No,43 is located in a factory area, commonly known as Shora Factory. The assertion of the petitioner that for more than 20 years it had ceased to be a factory area and the residential houses had been constructed all around, was repelled by him on the ground that no notification to that effect had been produced and that Khawaja Park has not been shown as an approved residential colony. He also took the view that the matter was actually of a civil nature and order under section 131 Cr.P.C., could not be passed.
5. In view of the two orders; one that it was a residential area, the other that, it was a factory area, the Assistant Commissioner, Sargodha was directed to visit and inspect the spot and submit a report to this effect. Report has been sent by him but no definite view can be formed on that basis even. The learned counsel for the petitioner challenged the order of respondent No,3 to have been passed by ignoring the relevant material, whereas, the learned counsel for respondent No,1, terms the order of respondent No,2, the result of misreading and non-reading of evidence on the record.
6. The view of the learned Additional Sessions Judge that no action under section 133' of Cr.P.C., could be taken as according to him the matter was more of a civil nature, is not prima facie correct as the complaint had been lodged by number of residents of Khawaja Park including the petitioner and jurisdiction and power to proceed in accordance with section 133 of Cr.P.C., was available, otherwise, the provisions of the said section would become redundant and otiose.
7. In exercise of writ jurisdiction, it is difficult for this Court to record a finding of fact on disputed questions of fact. It is the function of the authority concerned on due appraisal of the evidence and keeping in view the ambient circumstances to form a view while deciding a dispute of this nature.
As mentioned above, the two Courts had a different approach to the matter, one took the view on one set of the evidence while ignoring the other; whereas, the other Court has taken a different view but without appreciating the entire evidence. In the circumstances, the alternate plea of the learned counsel for the petitioner that the matter may be remitted to respondent No,2 by setting aside both the orders for consideration of the matter afresh, appear to be a proper course. In this way, his objection to the jurisdiction of respondent No,3 in entertaining a revision in the matter also loses efficacy.
In view of the above, order passed by respondent No,2, as also of respondent No,3, are found to be illegal and declared as such. As a result whereof, the application, filed by the petitioner, shall be deemed pending with respondent No,2, who after affording reasonable opportunity to the parties concerned, shall pass an order afresh in accordance with law.
' This petition is disposed of in the above terms. No order as to costs.