MOHSIN ALI AND Another vs The STATE
This petition for leave to appeal arose from a criminal case registered against the petitioners under Section 430 of the Pakistan Penal Code 1860 for allegedly closing down an irrigational channel supplying canal water to the complainant's bungalow. The petitioners had unsuccessfully moved the High Court under Section 561-A of the Code of Criminal Procedure 1898 to quash the proceedings, arguing that the dispute was of a civil nature and that any easement right was extinguished when the property was acquired by the Central Government under Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act 1958. The Supreme Court of Pakistan upheld the High Court's dismissal, holding that because the trial was at an early stage and evidence had yet to be led, it could not be pre-emptively determined whether the dispute was purely civil. Furthermore, the Court ruled that the term 'encumbrance' in Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 does not include rights of easement vested in owners of adjoining properties.
- Can criminal proceedings be quashed at an early stage under Section 561-A of the Code of Criminal Procedure 1898 before evidence is led to determine the nature of the dispute?
- Does the term 'encumbrance' under Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 include rights of easement vested in the owners of adjoining properties?
- What is the appropriate remedy for an aged accused seeking relief from personal appearance during a trial?
- Section 430, Pakistan Penal Code 1860
- Section 561-A, Code of Criminal Procedure 1898
- Section 205, Code of Criminal Procedure 1898
- Section 3, Displaced Persons (Compensation and Rehabilitation) Act 1958
ORDER
1. MUHAMMAD YAQUB ALI, J.-On the complaint of Sh. Mehr Haq, a case was registered against the petitioners under section 430, P. P. C. On the accusation that they had closed down the irrigational channel which supplied canal water to the bungalow of the complainant and thereby they have been guilty of the offence under section 430, P. P. C. After investigation a challan was sent to the Court of a local Magistrate for trial. Before the trial opened, the petitioners moved the High Court under section 561, Cr. P. C., for quashing the proceedings on the ground that it was admitted in the complaint that water supply had already been cut, that no Court would allow the complainant to take water through the courtyard of the petitioner No. 2, and that at best the dispute was of a civil nature.
2. The High Court dismissed the petition as the proceedings in the trial Court were at an early stage.
3. The petitioners seek leave to appeal.
4. We see no reason to differ with the view expressed by the High Court. Evidence has yet to be led in support of the accusations made in the complaint. It cannot, therefore, be postulated at present whether the petitioners have the right to close down the watercourse which supplied canal water to the bungalow of Sh. Mehr Haq and whether the dispute between the parties is of a civil nature.
5. It is urged that petitioner No. 1 is aged and it will result in unnecessary harassment if he has to appear before the Court. This difficulty can be overcome by applying to the Court for exemption under section 205, Cr. P. C.
6. It was next argued that as the house through which the water channel, in dispute, passed was acquired by the Central Government under section 3 of the Displaced Persons (Compensa-- petition and Rehabilitation) Act free from all encumbrances, the right of easement, if any, vested in the owner of the adjoining house stood extinguished. There is no merit in the plea at all. The term "encumbrance" in section 3 does not include rights of easement vested in the owners of the adjoining properties.
7. The petition is dismissed.
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