MUHAMMAD NAWAZ Versus FAZIL

The facts giving rise to this appeal in brief are that on 2-11-1989 a private complaint under section 70 of the Canal and Drainage Act, 1873 was filed by Muhammad Nawaz petitioner, wherein it was stated that the four accused-respondents had mala fidely and jointly demolished his water course which was engineered at site in the lands of the accused-respondents after entering into mutual written agreement between the parties. After completion of the requisite formalities the accused-respondents were summoned. They did not plead guilty and claimed trial and ultimately all the four accused-respondents were convicted and sentenced to 3 months' S.I. under section 70 of the Canal and Drainage Act, 1873, by the learned Zilladar/Magistrate Ist Class, D.I. Khan, vide his order, dated 16-9-1990. The accused-respondents being aggrieved with the said order, therefore, they filed an appeal in the Court, of Additional Sessions Judge, D.I. Khan. Muhammad Nawaz complainant also filed a revision petition before the learned Additional Sessions Judge, D.I. Khan. Both were heard together and resultantly the appeal of the accused respondents was accepted, the impugned order of the trial Court was set aside and the accused-respondents were acquitted of the charges levelled against them. The revision petition filed by the complainant for enhancement of the sentence was dismissed. Feeling aggrieved the petitioner has invoked the jurisdiction of this Court under section 417(2), Cr.P.C. by moving an application on 8-9-1991 for special leave to appeal which was granted on 7-10-1991 and hence the appeal in hand.

2. I have heard the learned counsel for the parties and have gone through the record of the case with their assistance.

3. Before hearing of the appeal on merits a point poses itself for consideration that whether the appeal filed by the complainant is competent against the order of acquittal passed by the Appellate Court in a complaint case. In this respect a ruling of the Lahore High Court was cited which is reported as 1988 P Cr. L J 1628, in which it was held if an order of acquittal is passed by the appellate Court in an appeal in a complaint case, then the appeal against such an acquittal order is incompetent by holding that section 417(2) envisages only an order of acquittal recorded in a complaint by the trial Court and does not include an appellate order of acquittal and this view was taken by interpreting section 417(2) of the Cr.P.C. On close analysis of section 417 as a whole the incompetency of an appeal arising out of a petition for special leave to appeal filing against the acquittal order passed by the appellate Court does not spell out, but rather it' includes the appellate order also. For better understanding section 417 is reproduced below:--

"417. Appeal in case of acquittal.--- (1) Subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.

(4) If, in any case application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1)."

In subsection (2) of section 417 the word such is used with reference to an order of acquittal. The words "such an order of acquittal" appearing in subsection (2) can only refer to the order of acquittal mentioned in subsection (1) of section 417. The order of acquittal referred to in subsection (1) of section 417 is an order of acquittal of the original or the appellate Court, therefore, section 417(2) is applicable not only to a case in which the order of acquittal is that of a original Court but also when it is passed by the appellate Court. Thus by reading the section it is clear that the appeal in a complaint case is competent if special leave to appeal is granted by the High Court in accordance with the A provisions of section 417(2) against an acquittal order, both passed by the original Court as well as by the appellate Court.

4. There are two questions involved in the case, one is that whether the water course exists and the complainant was having the right to use it and if existed whether it was dismantled by the accused-respondents or not. It is an admitted fact if the existence of the water course is presumed, then if should have passed through the lands of the accused-respondents. The complainant has based his claim on the basis of an agreement written on 22-5-1989 which arrived at between the parties as a result of the settlement by which the complainant was given a concession without receiving anything in consideration or in exchange by the accused to construct the water course through their fields for the supply of water to the lands of the complainant which was used hardly for a few months without establishing any easement right etc. The accused-respondents denied the execution of this agreement and furthermore, an objection was also taken that the agreement does not mention of any Khasra number as prescribed in the complaint which is 615 for which the supply of water is in question and the evidence does not disclose that this Khasra is situated in Chak No.2 for which the alleged agreement was executed. Exception was also taken to its proof as no evidence worth consideration was led to prove the agreement or execution e between the parties and thus the complainant-petitioner utterly failed to establish his right for the use of said water course.

5. The other questipn is with regard to the liability of the accused respondents for the dismantling of the water course is resolved in favour ofd the accused-respondents as no such evidence was produced which bring home guilt to the accused-respondents beyond any shadow of doubt by showing that it 'vas the accused-respondents who did the act of dismantling. The witnesses produced are not of the locality but have been taken from outside of the locality who ad got no concern to be present there except at the instance of the complainant and which fact by itself is sufficient to show the interest of the witnesses and the inclination they having for the complainant.

It is an appeal against acquittal and the order of acquittal of the accused respondents by the learned Appellate Court does not seem to be perverse or as such to be considered as the one which could not be based on view to be taken by a Judicial Officer. Consequently, this appeal fails which is hereby dismissed. However, the complainant can have a recourse to the authorities for the arrangement of the supply of water to his land under the relevant provisions of law i.e. The Canal and Drainage Act, 1873.

N.H.Q./1598/P Appeal dismissed.