ZAFAR ALI and 2 others vs THE STATE

1. ' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of the above criminal appeal and revision application as they arise out of common judgment.

2. ' Brief facts giving rise to the present appeal are that the complainant Gul Muhammad was looking after the land of his uncle, who took permission from Haji Allandino father of the complainant to use water from his (Haji Allandino) time of water share from watercourse No,3-CL to irrigate his (uncle of complainant) land. On 1-7-1998 at 7-30 a.m. The complainant was standing at the lands of his uncle when the appellants armed with rifles and pistols came there. They diverted the water from the watercourse, which was being flowed to irrigate the lands of the uncle of the complainant to their own pond. The complainant restrained them from doing so as the cotton crop of his uncle was being dried but they did not listen to him and started firing from their weapons at the complainant who tried to conceal himself. On the fire-arm reports P.Ws. Jamshed and Sultan reached there. They also concealed themselves behind trees. The appellants fired from their weapons at them but they were saved. The appellants told them to leave the land therefore, they went away and sat in the Otak to wait for the uncle of the complainant. As he did not return therefore, at 7-40 p.m. The complainant went to police station and lodged the report. The police after usual investigation challaned the appellants in the Court to face trial for offences punishable under sections 324 and 430 read with section 34, P.P.C.

3. ' The learned Assistant Sessions Judge, Matalli tried the appellants, acquitted them from the offence punishable under section 324, P.P.C. But convicted them for offence punishable under section 430 read with section 34, P.P.C. And sentenced each of them to suffer R.I. For three years with benefit of section 382-B, Cr.P.C. Under the impugned judgment. The appellants have challenged their conviction and sentence whereas the complainant through the revision application has requested to enhance the sentence.

4. ' Initially the appeal was filed in the Sessions Court Badin but on the application of the appellants, the appeal and revision application have been transferred to this Court.

5. ' I have heard the advocates for the appellants, complainant, A.A.-G. For the State and perused the evidence very carefully.

6. ' Admitted facts are that the land belonged to the uncle of complainant as he took it on lease. The complainant was looking after the land. The uncle of the complainant borrowed the water from Haji Allah Dino to irrigate his land as time of share the water from the watercourse No,3-CL belonged to him. In the circumstances uncle of the complainant had no independent legal right in the watercourse. He was simply licensee of Haji. Allah Dino. Under the law "licence" is a personal privilege to do some particular act or series of acts on the land without possessing any estate or interest therein, and is ordinarily revocable at the will of the licensor and is not assignable. Thus, a licence is not a contact between the licensor and licensee but a mere perosnal permit therefore, a licence is distinguishable from an "easement", which implies an interest in the land and a "lease" or right to take the profits of land. Whereas a legal right in its strict sense is one which is an ascertainable claim, enforceable before Courts and administrative agencies. In its widest sense, a legal right has to be understood as any advantage or benefit conferred upon the person by a 'rule of law. Thus, it is a right of a party recognized and protected by a rule of law, the violation of which would be a legal wrong done to his interest and respect for which is a legal duty even though no action may actually lie.

7. ' Keeping in view the above position of the admitted facts and legal position of the right of the complainant now it is to be seen whether or not the offence punishable under section 430, P.P.C.

8. Has been made out. For attracting the provisions of section 430, P.P.C. The provisions of section 425, P.P.C. Which defines offence of Mischief are required to be proved first, they are as under:--

(1) That the accused caused the destruction of some property, or some change in such property or in the situation thereof.

(2) That the above act destroyed or diminished the value or utility of such property, or affected it injuriously.

(3) That the accused did so intending on knowing that he was likely to cause loss or damage to the public, or to any person.

(4) That the causing of such damage injury was wrongful.

9. ' After proving the above facts the prosecution is further required to prove the following facts to attract the provisions of section 430, P.P.C.

(1) That the mischief in question caused, or was likely to cause diminution of the supply of water.

(2) That such supply water was for the purpose of agriculture; or for food or drink for human beings; or for animals, which are property; or for cleanliness; or for carrying on any manufacturer.

(3) That such mischief was done with knowledge that it would or was likely to cause, such diminution of the supply of water.

10. ' Thus, the prosecution is required to prove wrongful loss or damage, which is defined under section 23, P.P.C. That reads; "wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled". Hence the person should have some legal right in the property. It has been held in a case of Banwari Karmarkar v. Gasto Behary Karmarkar AIR 1920 (C) 835 that there has to be unlawful and intentional interference on the part of the accused with the admitted or proved fights of the complainant. However, the prosecution is not required to necessarily prove actual loss as held in (1881) 1 Weir 503. Nevertheless where there was nothing to show that the complainant had any legal right to the water intercepted by the accused, it was held that the complainant's loss was not wrongful and the offense of mischief was not established as observed in the case of Tun Aung, 7 Cr.LJ 448. Under the law it is acquired that the damage or loss has been caused to any person. It is not necessary that such damage or loss should be caused to the owner of the property. Admittedly the complainant or his uncle was not the owner of the watercourse therefore, they will come within the definition of any person. The act of the accused might have caused damage or loss to the complainant. However, where the complainant had no lawful right in the thing damaged, the accused could not be held guilty of any damage he might have done to it.

11. In the present case as I have already observed that the complainant or his uncle had no legal right in the watercourse therefore, damage caused to the complainant if any could not attract the provisions of section 430, P.P.C. It is pertinent to point out that the original owner of the watercourse did not complain any damage to him, which could have not been done as he himself permitted the use of his share of water from the watercourse to the uncle of the complainant apparently for the reason that the water was not required for irrigating his land.

12. ' After considerable the material available on the record I am of the considered view that the prosecution has failed to prove the charge of offence punishable under section 430, P.P.C.

13. Therefore, the conviction and sentence awarded to the appellants are set aside. They are acquitted and set at liberty. Consequently the appeal is allowed and the revision application is dismissed.