IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No.S-485 of 2021

Applicant: Nazir Ahmed Rind, through Mr. Shoukat Ali Makwal, Advocate.

Respondent: Mr. Shabbir Ali Bozdar, Advocate.

State: Through Ms. Shabana Naheed, A.P.G.

Date of hearing: 18.10.2021

Date of decision: 18.10.2021

O R D E R

Zulfiqar Ali Sangi, J:- Through this application, the applicant has assailed the order dated 05.05.2021, passed by learned 1^st Civil Judge & Judicial Magistrate, Mirwah and order dated 25.06.2021, passed by learned Additional Sessions Judge, Mirwah wherein order of learned Magistrate was upheld.

2. Learned Counsel for the Applicant submits that the application of the respondents u/s 133 Cr.P.C was not maintainable before the learned Magistrate and learned Magistrate only on the basis of report of SHO and Mukhtiarkar passed the impugned order. He further submits that there was no way/path, however, SHO and Mukhtiarkar have filed wrong reports, therefore, he prayed that the impugned orders may be set-aside.

3. Learned counsel for respondent No.1, submits that there is an old path under the use of respondents and other co-villagers and it was available in the Otara relating to 1940 and 1950 but the applicant party has forcibly closed the street and the report submitted by the Mukhtiarkar is well-reasoned which was based for passing of the impugned orders. He lastly submits hat orders passed by learned lower courts are in accordance with law and well-reasoned, therefore cannot be interfered by this court.

4. Learned APG has also supported the impugned order and submits that there appears no illegality in the impugned orders which are well-reasoned.

5. I have heard learned Counsel for the parties and have gone through the material available on record.

6. Record reflects that Mukhtiarkar Mirwah submitted his report before the learned Magistrate so also learned Additional Sessions Judge Mirwah wherein he clearly mentioned that there is Katcha path adjacent to the Survey No.339 and 340 which was used by Muhammad Hassan and other co-villagers and was forcibly closed by Nazir Ahmed and others. For the reference relevant paragraph of the report of Mukhtiarkar submitted before the 1^st Civil Judge & Judicial Magistrate Mirwah is reproduced as under:-

“The above witnesses have stated in their statement that katcha path/way running in the western side of S.No.340, eastern side of S.No.350 and to village Muhammad Hassan Veesar the Kactha path/way running old about 50 years back, but namely Nazeer Ahmed Rind, 2.Lal Khan & others by caste Rind the old path/way from S.No.339, constructed the wall and is a lot difficulty of villagers of village Muhammad Hassan Veesar.

The Tapedar of the beat has further reported that as per OTARAZ issued by Survey Superintendent Khairpur in which clear shown the way/water course on spot.”

7. I have also gone through the impugned orders which in my view are well-reasoned and passed in accordance with law. Learned counsel for the applicant has not been able to point out any illegality in the impugned orders. Resultantly the same are maintained and this criminal miscellaneous application is dismissed. The respondent No.2 and 3 are directed to remove encroachment upon a path made by any of the party and made it clear for passersby and, if any of the parties, try to close it, the legal action should be taken against them.

8. This criminal miscellaneous application is disposed of in the above terms.

JUDGE

Suleman Khan/PA