' ABDUR RAUF KHAN LUGHMANI, J.-- -Sadly, two real brothers, namely, Sardar Inayatullah Khan and Sardar Hizbullah Khan, herein petitioner and respondent No,4 respectively, both educated and senior citizens as well as enjoying social status in society, are locked in litigation. It appears that respondent No,4 submitted an application to the Deputy Commissioner, Dera Ismail Khan, on 14-12- 1991 for the grant of certified copies so as to apply for the removal of the public nuisance under Chapter X of the Code of Criminal Procedure and further describing as cognizable offence under section 280, P.P.C. The Deputy Commissioner by brief order, dated 17-12-1991, recorded on the said application directed the Assistant Commissioner, Kulachi (respondent No, 3) to proceed under section 133, Cr.P.C. And to give notice to the concerned person for removal of the nuisance. The S.D.M. On 22-12-1991, passed an order directing the petitioner to demolish the overhead tower (Morcha) within two weeks or to appear before the Court on 5th January, 1992 and show cause as to why the said order should not be enforced. The petitioner in response to said notice, expressed his reluctance to appear before him and leveled various allegations of nourishing grudge against him. Again, by another application dated 3-1-1992 expressed willingness to appear before the Tehsildar, Kulachi as and when summoned by him. Respondent No,3 sent the matter to the local police for enquiry and report on 4 points which we need not refer. The said order to respondent No,3 was questioned before the learned District Magistrate but with no success. Respondent No,4 then preferred revision petition under section 435 read with section 561-A, Cr .P.0 . Before the High Court and ultimately by order dated 11-10-1993, the High Court accepted the petition, quashed the order of District Magistrate and remanded the case to him for decision afresh in accordance with law. Thereafter, the District Magistrate, D.I. Khan, on examining the record, as directed by the High Court, observed that petition of respondent No,4 is based on solid footings and sent the same to S.D.M., Kulachi, with the direction to hold enquiry in accordance with the requirement of section 133, Cr.P.C. And other provisions of the Code of Criminal Procedure. On 24-7-1994 respondent No,4 was partially examined while number of other P.Ws. Were summoned. It appears that the case was withdrawn from the Court of S.D.M., Kulachi and was entrusted to District Magistrate, D.I. Khan, who in turn returned the file with the observation that he was vested with concurrent revisional jurisdiction under section 435, Cr.P.C. And the same was once exercised on 15-12-1993, therefore, the case be entrusted to some other Court of competent jurisdiction. The same was entrusted to Faridullah Khan, E.A.C., D.I. Khan by order dated 17-11-1994. Once again the case was withdrawn by the learned Sessions Judge and entrusted to the Court of S.D.M., Kulachi, on 5-4-1995. Respondent No,4 appeared before respondent No,3 on 9-4-1995 but the petitioner was absent and the case was adjourned to 16-4-1995, on which date the Presiding Officer happened to be on leave and the case was posted to 30-4-1995. On 30-4-1995 respondent No,4 was present, while petitioner was present and the Court directed issuance of notice to the petitioner for submitting written reply to the complaint and to appear himself personally or through counsel on next date i,e, 9-5-1995. On 9-5-1995, again the said party was absent and the Magistrate summoned the process-server for 21-5-1995 to explain non-service of summons on the petitioner. On 21-5-1995, the case was adjourned under Note Reader to 4-6-1995, on which date the learned S.D.M./respondent No,3 adjourned the case for 18-6-1995 for orders. On 18-6-1995 he after hearing the complainant observed that respondent did not bother to attend the Court and caused delay in the case. He directed demolition of tower and the removal of chain mainly on the ground: that there is no complication in the case and he visited the site which enabled him to reach the conclusion without any loss of time. Feeling aggrieved, the petitioner assailed the order before the learned Sessions Judge, D.I.Khan, but with no success as the learned Sessions Judge dismissed the revision by order dated 24-3-1996. Now the petitioner has assailed the order dated 18-6-1995 of S.D.M., Kulachi and that of learned Sessions Judge, D.I.Khan, dated 24-3-1996 as without lawful authority, against the principles of natural justice and equity. Respondent No,4 as also filed Petition No,21/96 under section 561-A, Cr.P.C. For quashment of the order of the S.D.M., dated 21-7-1996, whereby he stayed the proceedings with regard to the implementation of the order, dated 18-6-1995.
2. The resume of the case would reveal that the order of learned Magistrate dated 18-6-1995 directing the petitioner to remove the overhead tower is based on his personal observations as he "visited the site which enabled him to reach the decision without further loss of time". The nuisance/tower was found to have been built in front of the house of respondent No,4 which prima facie created hurdle and public nuisance at large. Similarly, the chain is also nuisance. Neither the Magistrate had passed order directing him to remove the obstruction or to appear in person and show cause as to why the order should not be enforced against him. But thereafter, the case kept on moving from one Court to another frequently. We need not repeat the history but would pick up the thread from the order-sheet dated 9-4-1995 when the case was received by respondent No,3 pursuant to the order of Sessions Judge, D.I.Khan and both the parties were summoned for 30-4- 1995. One notice appears to have been signed by Amanullah (Special/General Attorney of the petitioner) while the other notice meant for the same date i,e, 30-4-1995, the petitioner recorded a note on it expressing his inability to attend the Court on 30-4-1995 as he would be busy in the meeting with the A.D.B.P. Officials and requested for adjournment of the case. For this very reason, respondent No,3 directed issuance of fresh notice to the petitioner to appear in person or through counsel on 7-5-1995, on which date the process issued was not returned either served or un- served. The Court summoned the process-server to explain the cause of non-service of notice for 7-5-1995. On 21-5-1995 the case was adjourned under Note Reader to 4-6-1995 and strangely enough on this date without ascertaining as to whether or not the petitioner has been served, the case was fixed for orders for 18-6-1995. The record indicates that petitioner was not at all served for 7-5-1995 or 21-5-1995 or 4-6-1995 and in point of fact no notice was issued to petitioner for 21-5- 1995 or 4-6-1995. It is well settled and the provisions of the Criminal Procedure Code are also clear that without notice the order, dated 18-6-1995 is to be treated as illegal. Section 134, Cr.P.C. States that order under section 133 shall, if practicable be served on the person against whom it is made, in manner herein provided for service of a summons, and if such order cannot be so served, it shall be notified by proclamation, published in such manner as the Provincial Government may by the rule direct and a copy thereof shall be struck up at such place or places as may be fittest for conveying the information to such person. The order of respondent No, 3 dated 18-6-W95 is laconic yet for another reason. As stated earlier, it is based on his personal visit to the site which enabled him to reach the decision without slight hesitation when the tower and the chain were nuisance to public at-large. The order does not mention as to when he inspected the spot and whether or not prior notice of spot inspection was given. Section 539-B, Cr.P.C. Deals with local inspection. The Judge or Magistrate may at any stage of enquiry trial or proceedings, after due notice to the parties visit and inspect any place in which an offence is alleged to have been committed and without any unnecessary delay record memorandum of relevant facts observed during spot inspection. Such memorandum forms part of the record of the case and either party is entitled to get its copy free of cost. In the instant case, neither any prior notice was given nor memorandum of spot inspection was prepared. This provision has to be applied to enquiry under the provisions of Order 10, C.P.C. Etc. Regarding spot inspection so as to ensure transparent justice and nothing is done at the back of either party.
3. For the reasons discussed above, we accept the writ petition, declare the order of the Assistant Commissioner, Kulachi (respondent No,3), dated 18-6-1995 and the order of the learned Sessions Judge, D.I.Khan dated 24-3-1996 as illegal, void ab initio and without lawful authority and remand the case back to the Assistant Commissioner, Kulachi for disposal in accordance with law in the light of discussions made above. Since the matter is very old, therefore, the same be disposed of within a period of 3 months positively, under intimation to this Court. In this connection, the S.D.M., Kulachi is directed to submit fortnightly progress report to this Court. Parties are directed to appear before the S.D.M., Kulachi on 22-4-2000.
4. As regards petition filed by respondent No, 4, suffice to say that the order of the S.D.M., Kulachi, dated 18-6-1995, has been struck down by us. Nevertheless, we are tempted to disapprove the order of S.D.M., Kulachi, dated 21-7-1996, staying the proceedings with regard to the implementation of the order dated 18-6-1995. It is well established principle that mere pendency of writ petition in this Court does not mean suspension of the impugned order, unless this Court otherwise directs.
5. Hizbullah Khan, respondent No,4, during the pendency of writ petition, filed an application (Cr.Misc. No,134/98) wherein he prayed that since the petitioner had failed to deposit Rs,7 in terms of Rule 10 of Chapter 4 of the High Court Rules and Orders, Vol.V, the writ petition was liable to dismissal on that score alone. The application was dismissed for reasons to be recorded later on. In Shazullah v. Shahabuddin" reported as PLD 1979 Peshawar 35, similar question came under consideration and the Honourable Mr.Justice Abdul Hakeem Khan, Chief Justice (as his Lordship then was) observed that whenever there is an enactment by the competent legislation, that shall prevail. The charge of Rs,7 on account of binding/typing charges was ordered to be deposited in exercise of powers under the letters patent while under the N.W.F.-P Court Fee (Abolition)
Ordinance (XIV of 1978), there is no provision regarding the deposit of court fee/cash 'amount for the said purpose. This view was duly approved by the Supreme Court in "Ajab Khan v. Karimi Industries Ltd." 1988 SCM R 1660. Besides, it is a long outstanding practice that binding/typing charges are not deposited by the petitioners in petitions involving extraordinary Constitutional jurisdiction of this Court and the petitioners are required to do typing/binding themselves of all the extra sets required in the writ petition. On this view of the matter, we do not, find any substance in the ' objection raised by respondent No,4.
' The writ petition alongwith C.Ms. And Petition No,21/96 alongwith C.M. Stand disposed of accordingly.