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Revision Side No. 143 of 1955‑56, decided on 12th February 1957, District Bahawalpur.
S.33‑Penalty Deliberate cut proved‑Three persons prosecuted under S. 430, Penal Code (XI V of 1860), but acquitted as there was no; evidence against them‑Joint liability to penalty‑Deliberate cut to be penalised by imposing maximum penalty.
Fazal Elahi for Petitioner.
Muhammad Siddique, Deputy Collector, Ahmadpur Sharqia Division for the Irrigation Branch.
This is a case where a penalty for making a cut in the bank of a distributary and drawing unauthorised supplies from it was imposed by the Divisional Canal Officer on 15‑5‑54. An appeal was lodged before the Deputy Commissioner in the exercise of powers as Commissioner and he dismissed it on 28‑5‑55, because the appellant or his counsel was absent on that day in spite of previous notice. The petitioner has come up to me in revision.
It appears that in this case three particular individuals were prosecuted for an offence under section 430, P. P. C. because they had admitted that they were responsible for making the cut. The prosecution, however, failed because there was no evidence against them. The present petitioners went to take advantage of the failure of that prosecution and argue that since the Irrigation people knew those three persons to be the culprits, the petitioners responsibility cannot be invoked . . . . . . under section 33 of the Canal and Drainage Act. This is an ingenious argument but cannot help the petitioners because the Irrigation authorities are not rendered helpless by the fact that three persons. are prosecuted. The prosecution is also a part of the occurrence which can be taken into account. If the prosecution fails because there is nod evidence to prove that three particular individuals were respon sible for making the cut, the only conclusion is that the liability, to the penalty will become a joint one so long as it is quite clear that a deliberate cut was made in, the bank of the distributory.
In the above circumstances, I do not want to interfere in favour of the petitioners. A deliberate cut should be penalised by l6 the imposition of the maximum penalty permissible in law. I, therefore, dismiss this petition for revision.
K. M. A. Petition dismissed.
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