Haji Allah Bakhsh vs Haji Gulsher

2012 P Cr. L J 1375

[Peshawar]

Before Qaiser Rashid Khan, J

Haji ALLAH BAKHSH---Petitioner

Versus

Haji GULSHER and 3 others---Respondents

Criminal Miscellaneous Q. Petitions Nos.186 and 187 of 2011, decided on 22nd November, Criminal Procedure Code (V of 1898)---

----Ss. 133, 140 & 561-A---Order for removal of nuisance---Quashing of order, petition for--- Complainant/respondent in complaint filed under S.133, Cr.P.C. had alleged that petitioner had demolished the metalled road constructed by Irrigation Department some forty-five years back in landed property of the complainant and the petitioner by such demolition had caused inconvenience to the complainant as well the general public---Trial Magistrate passed an interim conditional order of removing the obstruction and allowed the complaint and made conditional order under S. 140, Cr.P.C., which was also maintained in the revision by Additional Sessions Judge---Said order had been sought to be quashed by the petitioner---Evidence on record had fully proved that a portion of the metalled road which was used by the general public for over four decades was demolished by the petitioner---Petitioner had himself admitted that the path in question was used by the general public and he did not produce any evidence in his defence---Statement of the petitioner, made it clearly manifest that he demolished the path so as to settle a score with the respondent complainant and in the process had caused inconvenience to the public at large---Judicial Magistrate found the complaint to be maintainable---Conditional order passed by the Judicial Magistrate, affirmed by the revisional court, were not challenged by the petitioner before the higher forums, which held the field---Impugned orders of the lower fora, dealing with the complaint, not in a mechanical manner, but after threadbarely discussing the evidence brought on record, could not be interfered with, which was accordingly upheld.

Saleemullah Khan Ramazai for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2011.

JUDGMENT

QAISER RASHID KHAN J.---Haji Allah Bakhsh, petitioner herein, through the instant petition seeks the setting aside of orders dated 24-5-2010 and 15-11-2010 passed by the learned Judicial Magistrate-II D.I. Khan and learned Additional Sessions Judge-VII D.I. Khan respectively, whereby complaint of Haji Gul Sher, respondent No.1 filed under section 133, Cr.P.C. was accepted.

2.Summarized facts of the case leading to the filing of instant petition are that Haji Gulsher, respondent No.1 herein, made a complaint on 5-6-2006 under section 133, Cr.P.C. against the petitioner Haji Allah Bakhsh to the SHO Police Station Saddar, D.I. Khan alleging therein that he had demolished the road constructed by the Irrigation Department some forty-five years back in his landed property situated in village Kech, thereby causing inconvenience to the respondent No.1/complainant as well as the general public. After investigation, the police attempted to resolve the issue through reconciliation committee, but with no fruitful results. Resultantly, the police submitted its report to the court, whereafter the petitioner was summoned to the court who contested the same and filed written reply by raising legal and factual objections to the allegations contained in the complaint. However, on 10-11-2007, the learned trial Magistrate passed an interim conditional order of removing the obstruction, whereafter recorded pro and contra evidence of the parties and on hearing arguments of their learned counsel allowed the complaint and made an order under section 140, Cr.P.C. whereby made absolute his conditional order passed earlier under section 133, Cr.P.C. which was also maintained in the revision petition by the learned Additional Sessions Judge-VII D.I. Khan vide orders mentioned above. Hence this petition.

3.I have carefully gone through the entire record of the case and considered the arguments of the learned counsel for the parties.

4.According to the statement of Riaz Hussain, (P.W.1), a major portion of the metalled road constructed by the Irrigation Department in the year 1959 for the public at large as well as to the extent of access to Tube-well No.35-B was demolished in the landed property of the petitioner and so are the statements of P.Ws. Nos. 2 to 6 who are the people of the locality. They stated that a portion of the metalled road which was used by the general public for over four decades was demolished by the petitioner. Respondent No.1/complainant recorded his statement as P.W.1 and only repeated the contents of his complaint.

5.Likewise P.W.8, namely, Sibtain Hussain stated that the application of the petitioner was marked to him by the SHO for its decision through the Musalehati Committee where the petitioner when appeared refused to proceed with the matter there.

6.Similarly, P.W.9 patwari halqa mouza kech exhibited his report as Exh.P.W.9/1 and stated that there is a ghair mumkin sarrak over the disputed khasra jat and three bridges were also constructed by the government for the welfare of the people. In this respect he also exhibited hand made map as Exh.P.W.9/2 which shows the disputed road along with bridges over it. P.W.10 Khalid Mehmood Sub-Inspector who conducted the inquiry submitted report as Exh.P.W.10/1, according to which there were three bridges over the disputed road constructed

for the last 40/50 years with 700 feet long portion of the same being demolished by the petitioner, much to the inconvenience of the general public.

7.On his turn, petitioner Allah Bakhsh appeared as R.W.1 and stated that the property belonged to him since his ancestors; that there was no road or thoroughfare over the property; that when the tube-well scheme was introduced, then at that time a path was made as an access from one tube-well to another, but the same was not for the use of general public and after the emergence of canal system, the tube-well scheme was abandoned along with connecting paths. He also frankly stated that since the respondent No.1/complainant had restrained him from passing through his (complainant) land, therefore, in retaliation he (petitioner) too, stopped him (complainant) from using his land as a passage. In cross-examination, he, however, admitted that the path in question was used by the general public. He did not produce any evidence in his defence.

8.Thus after scanning the evidence in its entirety, it is abundantly clear that the road/path over the disputed property was constructed over four decades back and was in common use of the general public besides the Irrigation Department and over the same several bridges were constructed. From the statement of the petitioner, it is also manifest that he demolished the same so as to settle a score with the respondent No.1/complainant and in the process caused inconvenience to the public at large.

9.As far as the present quashment petition is concerned, I have not been persuaded with the arguments of the learned counsel for the petitioner. For brevity's sake, it is mentioned that the proceedings in the first hand were initiated on the complaint under section 133, Cr.P.C. made by respondent No.1 to the SHO Police Station Saddar, whereafter the learned Judicial Magistrate took cognizance of the same and passed conditional order under the section ibid on 10-11-2007. Then after hearing arguments on the question of maintainability of the complaint, the learned Judicial Magistrate vide order 12-5-2008, held the complaint to be maintainable. The said order, i.e. conditional order dated 10-11-2007 and the order dated 12-5-2008 were never challenged by the petitioner before the higher forums and even to date hold the field. That being so and in view of the impugned orders, of the learned lower fora dealing with the complaint not in a mechanical manner but rather after threadbarely discussing the evidence brought on record, I do not find any reason to interfere with the same which are accordingly upheld.

10.In consequence, I find no substance in this petition which is hereby dismissed in limine.

H.B.T./62/P Petition dismisse