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Criminal Petition for Leave to Appeal No. 80/R of 1985, decided on 6th October, 1985.

(On appeal from judgment and order of Peshawar High Court Circuit Bench, Abbottabad, dated 1‑6‑1985 passed in Criminal Revision No. 30 of 1981).

‑‑‑Art.185(3)‑‑Leave to appeal‑‑Concurrent findings of fact reached by Courts below, held, would call for no interference.

‑‑‑S. 70‑‑Criminal Procedure Code (V of 1898), S. 522‑‑Watercourse‑ Demolition‑‑Trial Court has power to order accused to restore watercourse demolished /damaged by him.

‑‑‑S.70‑‑Criminal Procedure Code (V of 1898), S. 522‑‑Watercourse‑ Restoration‑‑Convicting Magistrate ordering accused under S. 522, Criminal Procedure Code, instead of S.70, Canal and Drainage Act, 1873, to restore watercourse demolished by him‑‑Order of Magistrate, held, sustainable‑‑Merely not mentioning law applicable where order was otherwise warranted, would make no difference and no exception could be taken on that count.

Zafar Mahmood, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th October, 1985.

The petitioners seek leave to appeal from the judgment and order dated 1‑6‑1985 passed by the Peshawar High Court, Circuit Bench, Abbottabad in Criminal Revision No.30 of 1981.

2. The facts relevant for the purpose of the petition are that respondent No.2 Abdul Aziz filed an application before Magistrate Class I at Mansehra on 3‑11‑1977 stating therein that the petitioners have demolished the watercourse which irrigated his field; and also prayed that the watercourse be restored. The petitioners were charged and tried under section 70 of the Canal and Drainage Act, 1873. The trial ended in conviction of the petitioners under subsection (7) of section 70 of the Act and they were sentenced to pay a fine of Rs.300 each or in default, to undergo S.I. for one month vide judgment and order dated 3‑4‑1978. Appeal before the learned Sessions Judge failed. However, the fine was reduced to Rs.50 each. Revision petition before the learned High Court resulted into remand order to the Sessions Court for decision afresh. After remand, additional evidence was recorded by the learned Additional Sessions Judge, who examined Haji Muhammad Rafique and Syed Muhammad Farid S.V.C as Court witnesses. The petitioners were held guilty and were fined Rs.50 each or in default, 10 days' S.I. vide judgment, dated 17‑8‑1981 Revision Petition filed was dismissed by the learned High Court vide the impugned judgment dated 1‑6‑1985.

3. The learned counsel for the petitioners contended that there is no evidence on the record connecting the petitioners with the crime. More so, it could not be proved as no watercourse existed. The land of respondent No.2 was never irrigated from the watercourse flowing from the land of the petitioners. He further contended that the findings of the Courts below are based on no evidence and the same are the result of either misreading or non‑reading of the material on the record; and as such the findings, having no legal value, deserve to be set aside. To deal with the points raised, suffice to say that concurrent findings of facts by Courts below would call for no interference. Otherwise also the evidence on the record proves the case of respondent regarding the demolition of watercourse. The learned counsel, however, raised certain points, not raised in the petition regarding the restoration of the watercourse under section 522, Cr.P.C. The learned trial Magistrate, in his order dated 3‑4‑1978, directed as under: '

The argument that no such order could be passed is also not sustainable for the reasons that such an order could be passed under the aforesaid section as it positively related to restoration of immovable property. We also find that under section 70(2) of. the Canal and Drainage Act, 1873 such an order could be passed by the Court. Section 70(2) of the Act reads as follows:)

"70 (2) Whenever any person is convicted under this section, the convicting Magistrate may order that the cost, as certified by the Sub‑Divisional Canal Officer for removal of the obstruction or repairing the damage in respect of which the conviction is held, shall be payable by him, and if such person neglects or refuses to obey such order within the period to be fixed, the costs of such removal or repair shall be recoverable from such person by the Collector as arrears of land revenue.

Merely not mentioning the law applicable where the order is otherwise warranted, would make no difference. No exception could be taken on that count. The petition thus fails and is dismissed as such.

M . Y . H . Petition dismissed.

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