ORDER SHEET
LAHORE HIGH COURT MULTAN BENCH
MULTAN
JUDICIAL DEPARTMENT
Writ Petition No.10289/2014
Fayyaz Hussain versus The State and 4 others
Sr. No. of Date
of
order/
order/
proceedin proceedings
gs
1
2
24.07.2014
Order with signature of Judge, and that of parties or
counsel, where necessary
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Sheikh Ghias-ul-Haq Advocate for the appellant.
Petitioner
has
invoked
the
Constitutional
jurisdiction of this Court under Article 199 of the
Constitution of Islamic Republic of Pakistan 1973 to
impugn the order dated 09.07.2013 passed by the learned
Magistrate Ist Class Kot Addu District Muzaffargarh
whereby petitioner’s application under section 133 of the
Criminal Procedure Coded 1898 was dismissed. He
further assails the order dated 14.06.2014 passed by the
learned Additional Sessions Judge Kot Addu whereby
petitioner’s criminal revision petition under sections
435/439, Cr.P.C. was also dismissed.
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Arguments heard. Record perused.
3.
Section 133 of the Criminal Procedure Code 1898
empowers a Magistrate to furnish speedy remedy where
public nuisance is being committed with regard to the
categories mentioned in the section. In this case petitioner
lodged the complaint under section 133 Cr.P.C before the
learned
Magistrate
Ist
Class
Kot
Addu
District
Muzaffargarh alleging that the public thoroughfare in
Khata No.146 Rectangle No.148 situated in Mauza
Jhonjanwali Tehsil Kot Addu in use of the general public
since long has been forcibly closed by the respondents by
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raising obstructions. The respondents denied the existence of the public
right in the way in dispute contending that no sanctioned public
thoroughfare/road existed in their owned land rather a Kacha passage
was made by them for their own exclusive need and personal use. It is
on the record that the respondent Ghulam Shabbir has also filed a civil
suit for declaration with permanent injunction in the court of learned
Civil Judge Ist Class Kot Addu against the petitioner and another
asserting that he is owner-in-possession of the land measuring 1189
Kanals and 02-Marlas in Khewit No.146/136 situated at Mauza
Jhonjanwali Tehsil Kot Addu and no public thoroughfare existed in the
said land. Petitioner is resisting the said suit by filing contesting written
statement. The matter is subjudice before the Civil Court. Keeping in
view the respondents’ contention that the passage in dispute was
exclusively used by them and no violation of public right was involved
in it the learned Magistrate therefore rightly held in his order dated
09.07.2013 that the provisions of section 133, Cr.P.C. were not
attracted at all. Order of the learned Magistrate was rightly maintained
by the learned Additional Sessions Judge Kot Addu through the
impugned order dated 14.06.2014 whereby petitioner’s criminal
revision petition was dismissed.
4.
It is well established that findings of the revisional court of
competent jurisdiction cannot be assailed by invoking the constitutional
jurisdiction of this Court under Article 199 of the Constitution of
Islamic Republic of Pakistan 1973, therefore instant writ petition is not
maintainable against the order passed by the learned Additional
Sessions Judge in criminal revision petition. Reliance is made upon, (i)
Badaruddin vs. Mehr Ahmad Raza, Additional Sessions Judge
Jhang and 6 others (PLD 1993 SC 399) and (ii) Muhammad Fiaz
Khan vs. Ajmer Khan and another (2010 SCMR 105). It may be
expedient to reproduce the relevant extract from the case of
Badaruddin (supra), which reads below:
“7. Second ground given by the High Court is that writ will not lie if
final Order is passed by the Revisional Court. There is no dispute about
the fact that powers of the High Court for exercise of revisional
jurisdiction under section 439, Cr.P.C. are wider in scope than powers
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Writ Petition No.10289/2014
in the writ jurisdiction. By amendment in the law now Sessions Court
and High Court have concurrent revisional jurisdiction which is
allowed in the normal course to be exercised first by lower forum but
that does not decrease the scope of jurisdiction as mentioned above. In
such circumstances it is said that if there is finding by the Court of
competent jurisdiction on the revisional side then it has attained
finality. On the same question writ petition would be non-maintainable
because otherwise it would amount to allowing question finally decided
in one set of forums to be agitated afresh in another set of forums and
that way there will be no end to the finality. In support of the
proposition reference can be made to the cases of Abdul Rehman
Bajwa v. Sultan and others (PLD 1981 Supreme Court 522) and Javaid
Iqbal v. Muhammad Din and another (1990 SCMR 1309).
8.
For the facts and reasons stated above, we are unable to find any
flaw or legal infirmity in the judgment of the High Court to which no
exception can be taken. Resultantly, leave is refused and petition is
dismissed as having no merits.”
5.
I do not find any jurisdictional error or legal infirmity in the
impugned order dated 09.07.2013 passed by the learned Magistrate and
the revisional order dated 14.06.2014 passed by the learned Additional
Sessions Judge Kot Addu.
6.
For the above reasons, instant writ petition having no substance
and being not maintainable is dismissed in limine.
(ABDUS SATTAR ASGHAR)
JUDGE
APPROVED FOR REPORTING.
JUDGE
‘Sarwar’