This petition under section 561-A, Cr. P. C. Seeks the quashment of the proceedings (State v.
Muhammad Akram and others) pending against the petitioners in the Court of the Resident Magistrate, Shujabad.
2. The main ground upon which this petition was admitted to hearing was that the order of varabandi passed by the Executive Engineer on .2-2-1970 was ab initio void because of the West Pakistan Canal and Drainage (Amendment) Ordinance (I of 1970), (hereinafter called the Ordinance) under which the said power vested with the Sub-Divisional Officer.
Kh. A. Waheed, the learned counsel for the petitioners, has filed on record a copy of the F. I. R. Report of the S. H. O. Under section 173, Cr. P. C. And a copy of the plaint which the petitioners filed in one of the civil Courts at Multan challenging the vires of the impugned order of the Executive Engineer. The report of the S. -H. O. Under section 173, Cr. P. C. Shows that the case against the petitioners under sections 430 and 379, P. P. C. Was found baseless and further that they should be challaned only for offence under sections 148 and 149, P. P. C. This report of the S. H. O. Is dated 17-7-1970 and is endorsed by Muhammad Anwar P. S. I. Shujabad on 28-7-1970. These facts are not denied by the learned counsel for the State.
The learned counsel for the petitioners, therefore, contended that after the case against the petitioners, under sections 430 and 379, P. P. C., was found baseless they could not be proceeded against under section 148, P. P. C. And to allow the proceedings to continue against them would be an abuse of process of the Court. In support of this contention the learned counsel referred to section 141, P. P. C. And its Fourth Illustration which may be reproduced :- "141. An assembly of five or more persons is designated an `unlawful assembly', if the common object of the persons composing that assembly is- Fourth-By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right." .
The language of section 141 and the Fourth Illustration appears to support the contention of the learned counsel. The requirement of these provisions is that. In order to succeed, the prosecution must prove not only that an accused was a member of unlawful assembly but also that being such a member he used criminal force or by show of criminal force had obtained the possession of any property or deprived any person of the enjoyment of a right of way or the use of water.
The case of the complainant-respondent was that the petitioners by show of force had deprived them of the use of water to which they were entitled, but this assertion was found baseless by the Investigating Agency. On my part also I am satisfied that the grievance of the respondent was misconceived, because it was based on the order of the Executive Engineer, which having been passed after the coming into force of the Ordinance (according to which the, power was with the S. D. O.) was entirely without jurisdiction. In this view the petitioners cannot be said to have committed any offence under section 148, P. P. C. For the simple reason that they were not members of an unlawful assembly within the meaning of section 141 read with section 146, g P. P. C.
It is, therefore, clear that to allow the proceedings against the petitioners would be not only an abuse of process of the Court but would also entail considerable expense and was of the.
3. While coming to this conclusion, I am conscious of the observations of the Supreme Court of Pakistan in the case of Ghulam Muhammad v. Muzammal Khan and others (PLD 1967 SC 317), in which their Lordships observed that jurisdiction under section 561-A should be rarely and reluctantly invoked by the High Court and that to when the charge on its face or the evidence, even if believed, would not disclose any offence. I have examined the facts of this case in the context of these observations and have come to the conclusion that this is one of those cases in which the proceedings should be quashed. After all the allegations in the F. I. R. Were that the petitioners, while armed with deadly weapons, had prevented the complainants from taking the turn of their water but the Investigating Agency found these allegations baseless. Not only this but the turn of water which the respondents claimed was on the basis of the order of the Executive Engineer and since the said order was without jurisdiction, -the claim of the complainants was clearly misconceived.
4. In the result this petition is allowed and the proceedings against the petitioners pending in the Court of the Resident Magistrate, Shajabad are quashed.