IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Misc. Application No.S-34 of 2022

 

 

Applicant:                                          Khawand Bux, through                  Mr. Sajjad Muhammad Zangejo, Advocate.

Respondent No.1:                              Ali Muhammad through Mr. Ajeebullah Junejo, Advocate.

State:                                                 Through Khalil Ahmed Maitlo, D.P.G.

Date of hearing:                                 14.02.2022

Date of decision:                                14.02.2022 

 

O R D E R

 

Zulfiqar Ali Sangi, J:              Through this application, the applicant has assailed the order dated 22.12.2021, passed by learned Judicial Magistrate-II, Pano Aqil, in Criminal Misc. Application No.19 of 2021, wherein he issued directions to the official Respondents to restore the path closed by present applicant within three days; besides such order was maintained by learned Additional Sessions Judge, Pano Aqil, in Criminal Revision Application No.59 of 2021, vide impugned order dated 18.01.2022, hence this application. 

 

2.       Learned Counsel for the Applicant contended that the path/passage which was claimed by Respondent is not a public path and the same was in the use of applicants’ party for their personal purposes; besides no public or pedestrians were used to cross it, therefore, orders passed by learned lower Courts are illegal and not sustainable under the law.    

 

3.       Learned counsel representing the Respondent No.1 contended that it was an old path and the Respondents party are using the same, therefore, the order passed by Courts below are in accordance with law. He prayed that instant Misc. Application may be dismissed.

 

4.       Learned DPG appearing for the State does not support the impugned orders in view of statement submitted by Mukhtiarkar.

 

5.       I have heard learned Counsel for the parties and have perused the record with their able assistance.

6.       Perusal of impugned order reflects that the reports of Mukhtiarkar and Assistant Commissioner have not been assessed properly wherein they disclosed that path is crossing from the personal property of Khawand Bux and others (Applicants’ party). Mukhtiarkar was also called, who submitted his report which is reproduced as under:-

 

“The Respondent No.3 (Mukhtiarkar Revenue) Pano Akil beg to submit that the Respondent No.1 filed Cr. Misc. Application No.19 of 2021 alongwith with application under Section 133 Cr.P.C in the Court of Honourable 2nd Judicial Magistrate Pano Akil that the present applicant caused nuisance by demolishing, blocking common path by dumping clay over there which was leading to the land of Respondent No.1 used for shifting their harvested crop and there is apprehension of vestige of harvested sugar cane crop of applicant/ respondent No.1 and Honourable Court disposed of the said application vide conditional order dated 22.12.2021 that the Government Respondents should restore the path within three days and submit such report before the Honourable Court.

 

After that in compliance of orders passed by 2nd Judicial Magistrate Pano Akil the path was re-opened and compliance report has submitted to the Honourable Court vide this office letter No.STM 90 dated 26.01.2022 (copy enclosed).

 

Being dissatisfied with the order and action the present applicant filed above Cr. Misc. Application. In this regard it is submitted that an area of 04-00 acres from S. No. 25 of Deh Drib, Taluka Pano Akil entered in the names of Khawand Bux, Muhammad Mousa, Kashmeer Ahmed, Zameer Ahmed and Ali Nawaz all sons of Allah Rakhya Katto vide VF-VII-B Entry No.348 dated 18.01.2007 (copy enclosed).

 

The Tapedar of the beat after visiting the site has reported that a Katcha Path was crossed in the Land of applicants where they blocked by dumping with clay which was restored on the orders of Honourable Court.

 

                                                    MUKHTIARKAR (REVENUE)

                                                                 PANO AKIL

                                                             RESPONDENT No.3”

 

7.       Section 133 Cr.P.C provides 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. The way for which learned Magistrate has passed order is not a public way and if someone is using it may not be lawful as, according to report of Mukhtiarkar, it is a personal property of the applicant party.

 

8.       From perusal of record, it reflects that the same reports were also filed by Assistant Commissioner and Mukhtiarkar (Revenue) Pano Aqil before learned Magistrate. Record further reveals that a report was filed by concerned SHO i.e. PS Cantt, Pano Aqil, wherein it is very much clear that there is a private dispute in between the applicant’s party and the Respondent’s party; besides Respondent No.1’s party has registered FIR bearing Crime No.11 of 2021 for offence punishable under Section 324 PPC and FIR bearing Crime No.15 of 2021 for offence punishable under Section 395 PPC at P.S. Cantt, Pano Aqil and the same are pending before the Courts having jurisdiction. The report of concerned SHO further reveals that there is no obstruction on the way which was used publicly; however Khawand Bux (present applicant) has closed its own way, which was used by him for only himself to cultivate the lands and this is not a public way or not in the use of anyone except applicant’s party. Learned Magistrate as well as learned Additional District Judge did not consider these reports in accordance with law.

 

9.       In these circumstances, impugned orders dated 22.12.2021 & 18.01.2022 passed by both learned lower Courts are set-aside. However, if the Respondent feels aggrieved, he may approach the Civil Court under the Easement Act for claiming his right of easement on the property of others as provided under aforesaid Act.

 

10.     These are the reasons for short order dated 14.02.2022.        

 

 

JUDGE

Faisal Mumtaz/PS