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Writ Petition No.10011 of 1980, decided on 8th April, 1987

---S.33--Penal Code (XLV of 1860), Ss.4'03 & 34--Constitution of Pakistan (1973), Art.199--Unauthorised cut in Distributory--Penalty- No evidence available to show that accused caused a cut in Distributory--Accused were acquitted in a criminal revision by High Court of charges under S.430/34, Penal Code, against them with regard to same incident for lack of evidence--After acquittal impugned order of imposing penalty becoming automatically insignificant in law- Order set aside.

Muhammad Hussain Awan for Petitioners.

Muhammad Rafique Butt for the State.

Date of hearing: 8th April, 1987.

The petitioner, Sarwar, Muhammad Rafique and Muhammad Khan, have challenged the vires of the order dated 17-5-1979 and the order dated 19-4-1980 passed by the Divisional Canal Officer, Upper Gogera Division, Sheikhupura, and the Superintending Canal Officer, Lower Chenab Canal East Circle, Faisalabad, whereby the petitioners were imposed a penalty of Rs.6,419.64 for having caused a cut in Mananwala Distributory at R.D. 47-48/L in village Sawanke under section 33 of the Canal and Drainage Act, 1873. The precise allegations against the petitioners were that they, on 17-9-1972, caused an unauthorised cut in outlet for illegal irrigation purposes. The Divisional Canal officer of the area imposed a penalty upon the land-owners, including the petitioner, on 17-5-1979. The Superintending Canal Officer rejected the appeal of the petitioners. The petitioners have challenged the impugned orders of respondents Nos.l and 2 by filing the present writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

3. It is submitted by learned counsel for petitioners that there is no evidence whatsoever produced in the case against the petitioners to show that they caused a cut in the Distributory. It is contended that since Criminal Revision No.142 of 1975 filed by the present petitioners has been accepted and they have been acquitted of the charges levelled against them under section 430/34, PPC, as such the evidence against the petitioners stands disbelieved. This being so, on the same set of evidence the petitioners cannot be held responsible for the payment of penalty for using the canal water unauthorisedly. It is maintained by the petitioners that they were not afforded any opportunity of being heard by the Divisional Canal Officer. They were thus condemned unheard which is against the spirit of natural justice. It was vehemently argued by learned counsel for the petitioners that the canal had broken thrice it the past, from the same place where the breach in question had Otaken place on 17-9-1972. Thus, it is established beyond doubt that the outlet had broken from the place because of heavy pressure of canal water. In reply to these contentions of learned counsel for the petitioners, Syed Salar Hussain Shah Deputy Collector, Sheikliupupra, as well as Mr. M.M. Saeed Beg Advocate were unable to justify the impugned orders of the Canal authorities. The representative of the Canal Department submitted that notice No.l was issued to the petitioners for the purposes of hearing them. However, he was unable to produce the said notice No.l in support of his plea. Admittedly, the respondents have not filed the written statement in the case, rebutting the allegations levelled in the writ petition. In this view of the matter, they cannot rebut the points taken in the body of the writ petition by the petitioners. Those points remain substantially unchallenged by implications. After hearing both the parties, I find that there is no evidence to show that the petitioners caused a cut in the Distributory. I have accepted the criminal revision referred to above and have acquitted the petitioners for lack of evidence. It was admitted by the Superintending Canal Officer in his appellate Order date 19-4-1980, that in case the petitioners' revision is accepted by the High Court, then the Canal authorities shall amend the decision an will grant relief to the petitioners. In my considered view, after the acquittal of the petitioners, the impugned orders passed by the respondents become automatically insignificant in law.

3. The result is that I accept this writ petition as well and set aside the impugned orders having been passed by the respondents without lawful authority and of no legal effect whereby the penalty was imposed upon the petitioners. In the peculiar circumstances of the instant case, the parties are left to bear their own costs.

M.Y.H. / S-71/ I Petition accepted.

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