Law: Criminal Procedure Code (V of 1898)

Section: 133,137(3),139-A

Criminal Procedure Code (V of 1898), Ss. 133, 137(3) & 139-A-Provisions of Ss. 133 & 139-A-Mandatory-Magistrate making absolute order under S. 137 (3) without first passing condi tional order under S. 133 and without following procedure laid down in S. 139-A - Proceedings vitiated-Order set aside.   Date of hearing : 11th August 1965.   JUDGMENT   This reference dated the 7th of July 1965 is made by the learned District Magistrate, Mardan, recommending that the absolute order passed by Mr. Muhammad Jan Khan, Magistrate 1st Class, Mardan dated the 31st March 1965, ordering the respondents Hayat Gul, etc. (now petitioners) to desist from putting up obstruction in the thoroughfare in question and to remove the obstruction existing there within a month of the passing of the order, be quashed.   Briefly, the facts of the case, as disclosed at the trial are that a thoroughfare leadsfrom main Swabi Mardan Road to the house of Gul Zamir respondent (complainant in the lower Court) which is also being used by the inhabitants of the locality. It is alleged that the thoroughfare was obstructed by Hayat Gul, etc. by constructing a Wall. A complaint was brought under section 133, Cr. P. C. by Gul Zamir, praying that Hayat Gul, etc. be ordered to desist from putting up the obstruction in the thoroughfare and to remove the obstruction within a month.   The record of the trial Court shows that no conditional order as contemplated bysection 133, Cr. P. C. was passed by the learned trial Magistrate and he passed the absolute order under section 137, subsection (3), Cr. P. C.   Section 133 (1) is in the following terms :- https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=1966P3            1/3 P L D 1966 (W   "Whenever a District Magistrate, a Sub-divisional Magistrate or 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…