ABDUL WAHID vs MUHAMMAD SHAFT AND ANOTHER

This petition under section 435/439 of the Criminal Procedure Code is directed against the order dated 9th July 1976 passed by the Assistant Commissioner and Magistrate First Class, Pishin, whereby the petitioner Abdul Wahid was ordered to remove the obstruction raised by him on a public way-cum-the passage for flow of flood water through Khasra No. 1031 situated in Mahal Karen Lori, village Dilsore of Tehsil Pishin.

2. The facts leading to this revision petition are that on the 18th of June 1976, the respondent Mohammed Shafi bad made an application in the Court of Assistant Commissioner and Magistrate First Class, Pishin under section 133 of the Criminal Procedure Code, alleging that the petitioner had closed the public way cum-a flood water channel passing through the Khasra No. 1031. The respondent No. 1 had further alleged that the same was levelled and fruit trees where grown thereon by him. The Magistrate issued a notice to the petitioner for his appearance before the Court. In reply to the notice, the petitioner had submitted that the application under section 133 was not tenable and he raised many other objections. On the very same day, the Magistrate passed an absolute order under section 1,33, of the Cr. P. C. And directed the petitioner to remove the obstruction immediately. The petitioner being aggrieved against the order of the learned Magistrate has directly filed this revision petition under section 435/439 of the Criminal Procedure Code before High Court.

3. Mr. Azizullah Memon, the learned counsel for the petitioner at the first instance submitted that his direct approach to the High Court: was justified action. He submitted that if once the revision petition is admitted by High Court then the only course for the Court is to dispose of it on merits. He had relied on the care law reported in Prasad Gareri v. Mi. Kesari and another (AIR 1941 Pat. 444), Chairman, Bihar Municipality v. Mt. Rameandi Kuer and others (AIR 1941 Pat. 548), Suraj Bali v.

Emperor through Nazt1l Officer, Luckhnow (AIR 1942 Oudh 438), Abdullah v. Raja Muhammad Hashim and another (PLD 1962 Kar. 793). And has also referred to some other cases decided by this Court on the fame proposition. The practice of direct approach to the High Court without first seeking remedy from the Sessions Court is highly unappreciable action. This practice should be avoided. Such petitions in ordinary course should first be filed in the Sessions Court. But in the instant case, as the revision petition has already been admitted and has come for regular hearing, it is to be decided on merits. Nonetheless the authorities also support its disposal on merits.

4. Mr. S. H. Jaffry, the learned counsel for the respondent No. I had conceded to the stand of the learned counsel for the petitioner, so was the stand of the learned A. A. G. Under ouch circumstances, the petition is being disposed of on merits. It was the contention of Mr. Azizullah Memon, the learned counsel for the petitioner that the learned Magistrate-----

(i) had not passed the conditional order,

(ii) bad not recorded any evidence, and

(iii) had not adopted the procedure laid down under sections 133, to 169 (A) of the Cr. P. C.

5. In support of his claim the learned counsel has relied on case, Hayat Gul and others v. Gul Zamir (PLD 1966 Pesh. 9) and some other authorities. In my view, the only identical authority is the above-said authority, wherein the provisions of sections 133 to 139 (A) of the Criminal Procedure Code have been elaborately discussed. In para. 3 of the judgment, it was observed;----- "The record of the trial Court shows that no conditional order as contemplated by section 133, Cr. P.

C. Was passed by the learned B trial Magistrate and he passed the absolute order under section 137, subsection (3) of the Cr. P. C."

It was further held that: "that the learned Magistrate also did not follow the provisions of section 139-A of the Cr. P. C."

6. The same is the case in this revision petition. The learned Magistrate had flagrantly violated the mandatory provisions of sections 133 to 139-A of the Criminal Procedure Code. Such being the position, the Impugned order suffers from infirmity.

7. Mr. S. H. Jaffry, the learned counsel for the respondent No. 1 had tried to convince me that in view of certain admissions in written statement of the petitioner, it was not incumbent upon the Magistrate to have followed the procedure laid down in the Criminal Procedure Code. I fear that the arguments are tenuous and cannot be accepted.

8. Under such circumstances I have no other alternative, but to set aside the Impugned order and remand the case to the learned Magistrate for re-trial with strict compliance of the provisions of sections 133 to 139(A) of the Criminal Procedure Code.

9. With these observations, the petition is disposed of. The record and proceedings of the case be returned to the learned Magistrate forthwith.