MUHAMMAD SHARIF Versus THE STATE

ORDER registered at Police Station Kot Samaba District Rahimyar Khan under section 430/379 of the Pakistan Penal Code with respect to the "diminution o1 water" by the petitioner-accused through the demolition of Khal.

2. The allegation about the diminution of water being a question of fact said to be linked with the issuance of stay order by the Civil Court in favour of the petitioner-accused according to which it is a case of transgression of authority shall obviously be considered and analysed afterwards. However, with regard to the prima facie application/attraction of section 379, Pakistan Penal Code learned counsel for the petitioner as well as learned Assistant Advocate General are in agreement that the same can be and should be disposed of today. I would also like to embark upon the disposal of the legal dispute to this extent at this initial stage especially when section 430, Pakistan Penal Code is bailable while section 379, Pakistan Penal Code is non-bailable.

3. Learned counsel for the petitioner argued that in view of specific incorporation of section 430, Pakistan Penal Code about diminution of water and due to the fact that water can neither be removed nor got recovered by the accused, section 379, Pakistan Penal Code, which is non-bailable, is not prima facie attracted and for the arrest of the accused to harm his reputation and honour the Police has transgressed its authority. On the contrary learned Assistant Advocate-General laid the emphasis that the water has been stolen by the accused and used by him toward wrongful gain without the permission of the Irrigation Department and hence section 379, Pakistan Penal Code is also prima facie applicable.

4. before making a dissection and analysis of the dispute in hand it is better to reproduce for the sake of convenience as under section 378, Pakistan Penal Code containing the definition of "Theft" and section 430, Pakistan Penal Code referring to the crime of "diminution of water":

Section 378; Pakistan Penal code. _Theft . Whoever intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking is said to commit theft.

Section 430, Pakistan Penal code.

Mischief by injury to works of irrigation or by wrongful diverting water. --Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agriculture purposes or for food or drink for human beings or for animals which are property, c for cleanliness or for carrying on any manufacture, shall be punished with imprisonment or either description for a term which extend o five years, or with fine or with both.

5. According to Reader's Digest Oxford Words Finder (Published by Oxford, 1993, page 407) the meanings of word "diminution" are the "act or an instance of diminishing". On the same page 407 of the Word Finder the word "diminish" is meant as "decrease, decline, shrink, lessen, reduce, curtail, recede, subside, depreciate, devalue, debase".

6. It is a matter of common knowledge and perception that water simultaneously absorbs in earth and evaporates up. The canal water is not a movable property as defined under section 378, Pakistan Penal Code. Practically canal water has no quality of being removed by hand, or on a cart, open truck etc. etc. even though perceptible by touch. Legally if the property .is stolen through its removal as mentioned in section 378, Pakistan Penal Code same can be recovered by the Police and/or produced by the accused before the Police or any other person. This fact cannot be even imagined with respect to diminution of water which absorbs in the ground and evaporate up simultaneously as expressed above. Pakistan Penal Code was enforced on 6th October, 1860 in English language during the British Rule and the said Rulers have specifically mentioned the punishment of theft in section 379, Pakistan Penal Code and punishment for diminution of water in section 430, Pakistan Penal Code. The makers of law were aware of the nature of quality of water being perceptible by touch, but introduced section 430, Pakistan Penal Code about diminution of water. Section 430, Pakistan Penal Code deals with special allegation of diminution of water while section 379, Pakistan Penal Code covers theft of all types of movable property. Thus, section 430, Pakistan Penal Code has a special/distinct legal entity and one who violates the same is not liable under section 379, Pakistan Penal Code.

7. It shall not be out of place to express that in the presence of section 430, Pakistan Penal Code about offence of diminution of canal water, the addition/inclusion of section 379, Pakistan Penal Code is Violative of Article 25 of the Constitution concerning fundamental rights of the citizen ,s which reads as under:

Equality of Citizens

25(1). All the citizens are equal before law and are entitled to equal protection of law.

8. It can safely be expressed that in cases of the instant nature section 379, Pakistan Penal Code is added as section 430, Pakistan Penal Code is bailable while section 379, Pakistan Penal Code is non-bailable. In this manner, by wrong entry of section 379, Pakistan Penal Code in the F.I.R., the Executive Authorities as well as Police succeed in projecting the autocratic authority in the area to the detriment of the accused of such type of cases who are forthwith arrested injuring their honour and reputation, the maintenance and safeguard of which is the paramount Constitutional right of a person. Thus, the Police cannot be allowed to transgress the authority in the aforesaid manner.

9. In this view of the aforesaid analysis of the matter and discussion I quash the addition of section 379, Pakistan Penal Code from the aforesaid F.I.R. and obviously the matter shall be considered during the investigation only and only under section 430, Pakistan Penal Code. Since section 379, Pakistan Penal Code stands eclipsed, the matter at the end of police and in case of submission of challan before the Area Magistrate shall be considered under section 430, Pakistan Penal Code. Thus, to this extent the petitioner has succeeded in obtaining the required and desired relief.

10. However, it can be expressed and observed that in case section 430 of the Pakistan Penal Code is made non-bailable the mischief mongers/accused can be dealt with an iron hand as required and desired thereof.

11. With respect to the attraction of section 430, Pakistan Penal Code the contention of the learned counsel for the petitioner is that there is the stay order issued by the competent Civil Court and that the case cannot be registered.

12. Send a copy of this petition to the S.H.O., Police Station Kot Samaba, District Rahimyar Khan as well as Sub-Divisional Canal Officer, Kot Samaba, Sub-Divisional Kot Samaba, District Rahimyar Khan (complainant) to enable them to prepare the comments and to appear before this Court on 5-8-1997.

13. In the circumstances of the matter the investigation of the case is stopped forthwith and no action shall be taken in the matter against the accused person(s).

Copy Dasti subject to payment of usual charges

N.H.Q./M-413/L Order accordingly