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42CA4D0CD714E4AB079634F0796F3091

IN THE COURT OF CIVIL/FAMILY JUDGE AND JUDICIAL MAGISTRATE-I,

KOT GHULAM MUHAMMAD
(Before Abdul Qadir Khoso)
Crl. Misc: application No. 01 of 2022.
Shahwaiz Alam son of Muhammad Tufail
Adult, Muslim, by caste Arain
R/O No. Ward No.5 Muhalla Garibabad,
Taluka KGM, District Mirpurkhas       ……………….   Applicants.
Versus
1. Muhammad Younas son of Muhammad Siddique
2. Awais son of Muhammad Aslam
3. Shaveji son of Kanji
4. Hamyio son of Shaveji
1 to 2 Adult, Muslim, by caste Qaimkhani
R/O Muhajar Goth near Denghan Rasti,
3 to 4 Adult, Hindu, by caste Kolhi
R/O Band/Bank of Simnala near Denghan Rasti
District Mirpurkhas                                                            ………………..Respondents.
5. Station House Officer, PS KGM                                   ………………..Official Respondents.

Mr. Abdul Ghaffar Shaikh, learned advocate for applicant

Mr. G. K Rizwan, learned advocate for respondents
ORDER ON APPLICATION U/S 133 Cr.P.C.
16-02-2022

This order shall dispose of the preventive criminal proceeding No. 01 of 2022 initiated under section 133
Cr.P.C, wherein conditional order dated 02-02-2022 was passed and same is reproduced as under

“Applicant named above has filed application u/s 133 Cr.P.C through his counsel, praying therein for order to
restrain respondents from making public nuisance created by respondents by fastening their cattle
side by side to school building in question and leaving drainage water within the premises of school
building, as same is damaging the building.

The brief facts of the application, mentioned by applicant are that the applicant has been running a primary
school in collaboration with Sindh Education Foundation for last 5 years on government land as per Rules of
S.E.F. Later on, said school was promoted to Elementary School with the grant of S.E.F, which was started
with the enrollment of about 250 students and now the number has reached to 400 students, who are
enrolled and getting education in this school. He added that some land was in possession of respondent
No.1, who voluntarily provided the same for school building for welfare purpose and promised not to claim
any compensation in future for this great cause. He added that one of the relative of respondent is in Sindh
Police, posted at P.S Kot Ghulam Muhammad, who along with S.H.O have also been influencing applicant.
He added that respondent is retired army personnel and he has moved application to Anti Land Mafia Cell
alleging therein that applicant has illegally occupied over his land and on the other hand respondent No.1
has demanded Rs.1500,000/- for leaving the applicant to construct additional rooms. As per contention of
applicant, respondent has also demanded Rs.3000/- per month from him for running of school in question as
bhata. Applicant further submits that respondents in collaboration with official respondent are creating
harassment and public nuisance.
Hence, applicant prays that respondents be restrained from causing harassment to school staff, including
management and students so also remove their cattle fastened side by side to school building and stopping
respondents from draining water near to school building.

Soon after filing of application, reports well called from Mukhtiarkar Revenue, so also S.H.O concerned. On
notice respondent No.1 appeared and filed objections through his counsel, wherein he formally denied all
the allegations made against them. Learned counsel for respondent No.1 added that applicant has
encroached over government land belonging to LBOD so also the respondent No.1.  He added that when
respondent No.1 objected over the construction of additional rooms, present applicant filed this application
as to put respondents in pressure. He maintained that applicant is influential person of the area, hence
authorities are reluctant to take action against him. Lastly, he prayed for dismissal of application on the
ground of being devoid of merits.

The reports, which were called from SHO PS Kot Ghulam Muhammad and Mukhtiarkar (Revenue) Kot
Ghulam Muhammad are on record. Report of SHO PS Kot Ghulam Muhammad of dated 01-02-2022 reflects
that SHO has failed to portray the current scenario of the school, in which he was supposed to bring on
record whether cattle of respondents are fastened near to school gate or building so also reveal whether any
drainage water is being flowed side by side to school building, causing damage to school building. Here,
SHO has just reported that Mukhtiarkar concerned was approached, who informed that required report has
been submitted before court of law, even that report was not obtained by SHO concerned, which clearly
reflects that police has been influenced by the respondents, as applicant has clearly deposed in his
application that one of the relatives of respondent is in police and he is posted at P.S Kot Ghulam
Muhammad.

The report of Mukhtiarkar (Revenue) Kot Ghulam Muhammad of dated 31-01-2022 is on record, which
reveals that School in question is situated in Deh-324 on survey No. 153 & 134. It further reflects that school
was demarcated by the Tapedar of beat from which, it appears that 0-2 ¾ ghuntas are within Survey No. 153
and 0-1 ½ ghuntas are within Survey No. 134. It reveals that total 0-4 ¼ ghuntas are covered by the school,
which belongs to Muhammad Akram, Muhammad Aslam and Muhammad Younas (Respondent No.1) all
sons of Muhammad Siddique but at the same times this Mukhtiarkar (Revenue) Kot Ghulam Muhammad, in
its report has failed to mention whether school in question is constructed on government land belonging to
LBOD and if it is covered then how much area belongs to LBOD.

I have heard learned ADPP for State, the learned counsel for respondents, learned counsel for applicant
and perused the record available on the file. As from the perusal of the record it transpires that applicant and
respondent are in controversy over the land, on which applicant’s school is being run and additional rooms
are to be constructed, which as per contention of applicant is government land belonging to LBOD while
respondent No.1 claims that same is partially government land and partially belong to him.

Prior to touching the merits of instant application, which narrates one of the basic serious issues, let it be
touched on the standard of jurisdiction for entertainment application under section 133 of Code of Criminal
Procedure, 1898 (hereinafter be referred as Cr.P.C). Let section 133 Cr.P.C be perused; wherein it was
barely mentioned that ,“Whenever a [Magistrate of the first class](sic) considers, on receiving a police report
or other information and on taking evidence(if any)as he thinks fit that any unlawful “obstruction” or
“nuisance” should be removed, such Magistrate may make a conditional order requiring the person causing
such obstruction and nuisance within in time to be fixed in order to remove such obstruction or nuisance or if
he(respondent) objects so to do appear before or some other [Magistrate of the first class], at the time and
place to be fixed by the order and move to have order set-aside or modified in the manner herein after
provided.”

I hereby place my reliance on reported case law as P L D 2019 Lahore 751 Honorable High Court has
inferred the finding about Public nuisance of obstruction from blocking drain water of village--- that record
revealed that petitioner had prima facie caused unlawful obstruction by filling some land of village ‘chapper’
(water drainage reservoir) with clay and erecting a ‘wat/bund’, which resulted into blockage of passage of
water from village to ‘chapper’, which act prima facie constituted ‘obstruction’ as defined in S.133 Cr.P.C.
At this juncture, from defined relevant section of law and reported case laws, enumerated above it is crystal
clear that respondents by fastening their cattle near the school gate and leaving drainage water around its
building not only caused obstruction but also caused public nuisance, as defined above.

The term 'Nuisance' legally connotes and includes any act, omission, animal or thing which causes or is
likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to
rest or sleep, or which is or may be dangerous to life or injurious to health or property or endanger the
human life. There are two types of nuisance i.e. private nuisance and public nuisance. A private nuisance is
a civil wrong but a public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or
inconveniences the rights of the community. A public nuisance, as such, is actionable only by the state,
through criminal proceedings, injunction, or physical abatement; the same activity or conduct may also
create a private nuisance to neighboring landowners and thus result in a civil suit. The conduct of business
in violation of any law may constitute a public nuisance. In legal terminology, a nuisance is a substantial
interference with the right to use and enjoy, which may be intentional, negligent or ultra-hazardous in origin,
and must be a result of respondent's/ defendant's activity. The term annoyance is flexible one. It has many
shades and varieties of meaning. Reliance is placed on the case law i.e.2020 M L D 1360 Lahore,
Rawalpindi Bench. Said case law clearly guides that annoyance is flexible term which poses many shades
and varieties of meaning and surely leaving the respondents to fasten their cattle at school gate or draining
water to side by side of said building is nothing but an encouragement for land grabbers and influential
persons to do as per their wishes and whims. It is also a denial of basic and fundament rights, it is injury to
health, it is damaging to school reputation, it is discomfort to the school management, it is denial of
easement rights enshrined and guaranteed by the constitution, it is danger to existence of school, it is
annoyance to daily routine, it is offence against the society and humanity and most importantly it is a threat
for survival of the schools in future.

Here, within the domain of section 133 Cr.P.C this court has to decide whether respondents have caused
any nuisance as alleged by applicant and thereafter, if it is proved then court has to pass an order for
removal of such nuisance within the purview of this section, while the question of illegal encroachment as
claimed by respondent No.1 and settlement of ownership of land in question are concerned that are to be
decided by competent court having jurisdiction under relevant law as same are not covered by law into
motion.

Now, I would like to address the dispute of land in question, on which applicant has been running his school
for last more than five years, established with collaboration of Sindh Education Foundation. Here respondent
No. 1 has deposed in his objections that he has some portion/guntas of land in that covered area of the
school but at the same time he took stand that land in question belongs to LBOD. Respondent himself has
produced letter of eviction of school building issued by LBOD addressing to school management with his
objections, which clearly reflects that land, on which school is established does not belongs to respondent
No.1, as if same would have been belonging to respondent No.1 he might have approached LBOD to
withdraw from its letter, produced herein with objections, because land in question as per respondent No.1,
which is being claimed by LBOD actually belongs to him but he remained silent over issuance of that letter,
which clearly depicts that land in question does not belong to him but he himself has also encroached over
land in question.

Being owner of said school and aggrieved by the alleged aforementioned obstruction caused by present
respondents, applicant is quite competent to file complaint under Section 133 Cr.P.C.  As far as locus standi
of applicant for filing criminal complaint is concerned, suffice to observe that he has been running school in
question for last more than five years but respondents never put any objection on it. Their retrospective
conduct precisely make it clear that their sudden offensive mode triggered when applicant intended to
construct two additional rooms of the school in question, for which he warned respondents to shift their cattle
from land in question, attached photographs with application in hand clearly depict the situation that cattle
belonging to respondents are fastened side by side to school building and drainage water is being trenched
around the school building, which cannot be permitted or tolerated at any cost, as school requires an
environment that is child friendly, clean, hazard free, geared towards student learning, aligned with the local
environment and physically viable. But here respondents by fastening their cattle and leaving drainage water
near to gate and side by side to school building has made a cattle pond and drainage channel rather than a
school.

Perusal of record reveals that present respondents have prima facie caused unlawful obstruction and
nuisance by fastening their cattle side by side to school building and leaving drainage water, which has
resulted into blockage of passage of school entrance and same is causing environmental pollution, which
act prima facie constitutes the `obstruction' as well as ‘nuisance’ as defined in Section 133 Cr.P.C. So filed
application is perfectly in accordance with law, therefore, it requires attention of this court to make
conditional order for removal of said `obstruction' as well as ‘nuisance’.

Hence, respondent No.1 to 5 are hereby directed remove alleged `obstruction' as well as ‘nuisance’ forthwith
(Cattle should be shifted near from school building in question, drainage of water around the school building
should also be stopped immediately and any other `obstruction' as well as ‘nuisance’ should also be
removed straightaway) and in case respondents have any objections, they may appear in person or through
counsels before this Court within 15 days till 16.02.2022 to record one’s objections (if any) or claim jury or
otherwise, failing which the order will be made absolute. Office is directed to serve this order upon the
respondents for necessary compliance, through quick possible mode.”

Once again I have heard learned ADPP for State, the learned counsel for respondents, learned counsel for
applicant and perused the record available on the file. As from the perusal of the record it again transpires
that applicant and respondent are in controversy over the land, on which applicant’s school is being run and
additional rooms are to be constructed, which as per contention of applicant is government land belonging to
LBOD while respondent No.1 claims that same is partially government land and partially belong to him.

Today respondent No. 1 through his learned counsel submitted his objections in detail, in which it has clearly
been mentioned that there is no obstruction, nuisance or any sort of inconvenience in smooth running of
school in question. The filed objections are also annexed with photographs, in which it has been shown that
all the obstructions and nuisance (if any) have been removed, now there left nothing, which may cause
nuisance or obstruction and same can call the attention of this court. The objections further disclosed that
this court has passed conditional order of dated 02-02-2022 in hurry without visiting the site physically or
appointing an honest commissioner but it is admitted fact that soon after filing of present application, reports
were called from concerned SHO as well as Mukhtiarkar (Revenue) but surprisingly respondent No.1, in its
objections took stance that report of Mukhtiarkar (Revenue) is false and fabricated as reals facts have been
manipulated in said report and as per contention of learned counsel appearing on behalf of respondent No1,
he has challenged that report before concerned forum. It has further been stated in said objections that the
photographs, which has been submitted by applicant with his application were also false, fabricated and
manipulated, as same were not taken from the alleged place. It is further stated that neither any cattle are
fasten near the premises of school in question nor any drainage water is seen within the boundaries of
school. 

Admittedly, the cattle of respondents could be seen, fasten adjacent to school building and drainage water
could also be observed but now the fresh photographs, which are annexed with objections filed by
respondent No. 1 through his learned counsel clearly reflects that cattle have been removed and drainage
water has also been obstructed, which is no doubt a positive sign at the hands of respondents and same is
highly appreciated by this court. But applicant so also his counsel have deposed that pictures have been
taken from different by the respondent, as obstruction, encroachment and nuisance still exist, which have
partially been removed by respondents. They requested that they have no objection if respondent proves at
proper forum that school building in question exits over his share of land and if he could prove at proper
forum then he is applicant is under obligation to vacate the same.

The learned counsel for respondent No.1 prayed that previous conditional order into present proceedings
may please be recalled as there is no nuisance or obstruction but a question arises here that the conditional
order in question was made for removal of nuisance or obstruction, which respondent side claim does not
exits since filing of present application, then question of recalling the same sounds awkward, as same was
made for removal of nuisance or obstruction (if any) and there is no any nuisance or obstruction right now
then that order must remain in field as in future no one should dare to cause any nuisance or obstruction in
smooth running of school in question. Apart from this, it is worth mentioning here that conditional order of
dated 02-02-2022 does not deprive respondents from any of their rights to approach concerned forum with
their respective legal claims, which as per their contention applicant has caused to them and if any of the
respondents claims that school in question is constructed over his part of land then he has exclusive right to
approach concerned forum of law to claim his right but till decision of the ownership of land (if any), one
cannot be permitted to interfere in smooth running of school, when it is admitted fact that our literacy rate is
not up to the targeted position. So, a running school cannot be left on the mercy of anyone at any cost. Even
this court shall stand as an iron wall and provide a shield to counter any unlawful act, which causes any
disturbance in smooth running of school in question.

After perusal of objections, it appears that respondent No.1 has come with full preparation that accusation is
not the act of nuisance and if it is nuisance then it is not public nuisance at large but respondent so also his
learned counsel paid no heed to the act of public nuisance and did not ask the court for the constitution of
jury or leading of evidence, even prayed for recalling the conditional order, which as per their contention was
passed in hurry and same is not as per law but same has already been discussed in conditional order.
Surely criminal court are barred from proceeding U/S 133 Cr.P.C when same subject matter with same
accusation may be in pendency before higher forum but here no such matter is pending before the
Honorable superior Court.

On the other hand applicant has argued that he is practicing lawyer and senior counsel of this bar. He has
served for more than fifteen years in advocacy and he cannot take law in his hands, as he knows very well
his limits. He added that respondent No.1 is an influential person and he has contacts in one of the
reputable agencies of this country. He maintained that has been receiving calls on his personal cell number
from unknown cum un-shown numbers, where callers have been introducing themselves as belonging to
one of the reputable agencies and restraining applicant from pursing the present matter in the court. He
added that he has been issued threats from those calls regarding dire consequences. He produced such
recordings before this court. Hence, it is observed that a call from an unknown cum un-shown number, if on
the part of an agency made by one of the contacts or relatives of respondent is no doubt earning/causing
bad impression for that reputable agency, which has not been created to cause harassment amongst the
people but the purpose of creation was supposed to protect the land and work within its prescribed limits. No
law permits any person, who even being part of an agency, working within the country to avoid rule and
regulations and start issuing threats to one person for their personal gains, which is no doubt is an abuse of
powers. So, the applicant is at liberty to file complaint before competent forum of law under cybercrimes, as
the alleged act on the part of unknown person is truly a crime under relevant laws. Applicant is also at liberty
to make complaint to PTA Pakistan Telecommunication Authority regarding such threat calls from an
unknown cum un-shown numbers.

It is made clear here that removal of "public nuisance" is being dealt by Chapter-X contained in Part-IV of
Code of Criminal Procedure, 1898 (Sections 133 to 143). In order to understand the proposition in its true
perspective it would be appropriate to reproduce relevant portions of Section 133 Cr.P.C.: --

Section 133 Cr.P.C. Conditional order for removal of nuisance.---(1) Whenever a Magistrate of the first class
considers, on receiving a police-report or other information and on taking such evidence (if any) as he thinks
fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or
may be lawfully used by the public, or from any public place. That, Magistrate may make a conditional order
requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or
keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure,
substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in
the order, to remove such obstruction or nuisance; or, if he objects so to do, to appear before himself or
some other [Magistrate of the first class], at a time and place to be fixed by the order, and move to have the
order set aside or modified in the manner hereinafter provided.

Schools, which are reportedly being encroached by land grabbers undoubtedly leave psychological impact
upon the administration and most importantly upon the students so also their parents. It also creates sense
of fear and insecurity into the minds of school management, students and their parents. Resultantly, they all
feel uncomfortable by delivering qualitative output. School management remain always under the fear that
any untoward incident might happen and they are supposed to keep the students away from such
happening, while students are always reluctant to go to that school, where they have any sort of fear of
unpredictable conditions. Certainly, parents being guardian of the students would opt the option to get
names of their children terminated from such controversial schools and in the end it is the future of student,
which remains at the stake only due to agility of land grabbers.

It has been held in reported case law as PLD 2002 Lahore 555 that Magistrate may bring law into motion,
under section 133 Cr.P.C, when he has reason to believe that such action is in the best interest of the public.
Likewise, as per my understanding matter in question is no doubt requires intervention of this court, as
respondent No.1 has jeopardized school education and future of students are at stake. Hence, it is nick of
the time to stop respondents from encroaching the land not in their ownership, which has been admitted by
them in their objections so also supported by the report of Mukhtirakar revenue and S.H.O, P.S Kot Ghulam
Muhammad. Apart from this our constitution make it clear that formulating of law is not the solution but its
implementation sounds good. I hereby reproduce relevant portion for ready reference. Constitution of
Pakistan (1973) Art. 5 obedience to Constitution and law/Implementation of law: Mere framing of law does
not provide good results unless the law is strictly implemented in letter and spirt without fear, favour and
nepotism.

Apart from this, perusal of provision of law, under which present application has been filed, clearly reveals
that consent of Advocate General or leave of Court is not required for filing complaint under Section 133
Cr.P.C. or bringing machinery of criminal law into motion on the subject rather on police report or any other
information and taking such evidence (if any) thought fit by the Magistrate, he can pass order for removal of
obstruction or nuisance. Hence, such contention are not maintainable as same is without any substance and
repelled with full force.

Besides, Constitution of Pakistan (1973) under Art. 25-A, guarantees Right to Education. Hence, no one like
present respondents can be allowed to cause any kind of disturbance in smooth running of school in
question. The act of applicant by filing application is hand, represents his real courage, who has stood
against the respondents for national cause, as respondent have been issuing him threats of dire
consequences in person and by exploiting one of the reputable agencies of the land through their personal
contacts and relations.

Since, inception of school, started about five years back, it was never questioned by respondent No.01 at
any forum of law nor any agreement between applicant and respondent is on record, which can conclude
that land in question has been handed over to applicant by respondent No.1. Apart from this there is no
record either school building in question was created over the land of respondent No.1 or same belongs to
LBOD but now on the one hand respondent No.1 is trying to exhibit that school is established over the land
belonging to LBOD and he has also produced such letter of LBOD in pursuance of drive against anti-
encroachment, in which school administration has been addressed by LBOD authority for its vacation cum
removal as early as possible and on the other hand respondent No. 1 has took stance that applicant has
agreed to pay Rs.15,00,000/- (Fifteen Lac Rupees) to him for said land but now he has refused. It has
already been discussed here that there is no record/proof that the land in question, belongs to respondent
No.1, then how applicant is supposed to pay him such huge amount for that land, which does not belong to
him, where applicant is running school with sponsorship of SEF Sindh Education Foundation. 

Running a school in far flung area is no doubt a social service and national cause, while act on the part of
respondent No.1 is nothing but to distract the applicant from such national cause and social service. It is
admitted fact that since inception of this pure land, policies in respect of achieving hundred percent literacy
rate/goal is being formulated but we, even passing of 76 years of independence are still far away from
achieving this goal due to one or another reason. The act of respondent No.1 in causing hurdles and
disturbance in smooth running of school in question is no doubt not less than a crime against the society and
particularly against the humanity. Hence, a heavy duty/burden casts upon the concerned authorities to take
solid steps to curtail such types of immoral, unethical and most importantly un-constitutional act of persons,
like in present case by respondent No.1 but concerned authorities are in deep slumber and they are willing
to remain in such state of deep slumber. So, now applicant, through present miscellaneous application has
knocked at the doors of this court, to save him as well as his school from the illogical, un-reasoned and un-
lawful act of respondents, especially respondent No.1 as respondent No. 2 is his nephew and respondent
No.3 & 4 are his haris, who act upon the commend of their master/respondent No.1 but here, when applicant
has approached this court with a ray of last hope that he would be saved from the hands of respondents by
trigging section 133 Cr.P.C, as the alleged act of respondents clearly falls within the ambit of mentioned
section. Now, the prime responsibility of this court is to apply proper law and restrain respondents from
causing nuisance, which has clearly been proved from above inscribed discussion. So, the respondents
cannot be allowed to make hindrance in smooth running of school in question, only due to their personal
gains, which ultimately is causing great threats to national cause.

The chapter X of Cr.P.C deals with the public nuisance. It begins from section 133 and ends at section 143.
The law clearly stipulates every step which the Magistrate has to take when information is placed before
him. The spirit of the chapter is to be carried into effect and every word of the law is to be given meaning as
provided by law itself. Section 133 gives the power to Magistrate for removal of a nuisance including the
power to prohibit the conduct of any trade or occupation or the keeping of any goods or merchandise which
is injurious to the health or physical comfort of the community and also gives the power for the removal of
such trade or occupation and likely same course has been adopted in this proceeding and every opportunity
of fair justice was offered but Respondent No.1 besides filling objections has failed to avail the opportunity of
jury and evidence voluntarily which was insufficient that could not satisfy the court to recall its conditional
order.

Now court has reached at the conclusion that such alleged nuisance, encroachment or obstruction exits at
the alleged place should unconditionally be removed forthwith. Hence, all the respondents are
unconditionally directed to remove all nuisance, encroachment or obstruction forthwith and not to create in
future too, any disobedience of the order of this court would bring the relevant law into the motion against all
respondents. Mukhtiarkar (Revenue) Kot Ghulam Muhammad is strictly directed to issue notice for removing
the obstruction, nuisance to respondents by according them time of shifting within the period of (15 days)
and such notice shall also be submitted before this court too as information copy and if same is removed by
the respondents voluntarily within prescribed period then such report shall be furnished by Mukhtiarkar
(Revenue) and, in case of non-removing the same Mukhtiarkar (Revenue) shall arrange proper machinery
for removal the nuisance, encroachment or obstruction in collaboration with SHO PS Kot Ghulam
Muhammad and make visible compliance of this order, otherwise it would be deemed that he is also
accomplice and same disobedience would constitute against him too. SHO P.S Kot Ghulam Muhammad
being official respondent is also directed to co-operate with Mukhtiarkar (Revenue) Kot Ghulam Muhammad
for removal of nuisance, encroachment or obstruction from alleged place. Disobedience, if any on his part
shall also make him accomplice and relevant law shall come into force against him. Let the copy of order be
supplied to all respondents including Mukhtiarkar (Revenue) Kot Ghulam Muhammad for necessary
compliance, hence this absolute order is announced accordingly.

Announced in open court.

Given under my hand and the seal of this Court, on 16th day of February, 2022.

(Abdul Qadir Khoso)

Civil/Family Judge & J. M-I,
Kot Ghulam Muhammad