This is a criminal revision under section 435/439, Cr.P.C. Moved by petitioners Muhammad Khan, son of Nathey Khan, Sarwar, son of Allah Ditta, and Muhammad Rafique, son of Ismail, against their conviction and sentence awarded by Ch. Abdul Latif Khan, Magistrate 1st Class, Sheikhupura, vide his judgment, dated 22-4-1974. The learned trial Court convicted the petitioners under section 430/34, P.P.C. And sentenced each of them to undergo six months' rigorous imprisonment in lieu of the allegations that they caused a cut in the canal bank for illegal irrigation on 17-9-1972, within the area of village Chanianwali, District Sheikhupura. However, the learned trial Court acquitted Abdul Sattar and Nazir co---accused. The appeal filed by the petitioners against their conviction and sentence was dismissed by the learned Sessions Judge, Sheikhupura, vide his judgment, dated 5- 2-1975.
2. The brief facts of the prosecution case are that on 17- 9- 1972, Syed Nazim Husain, Overseer got information regarding a cut in Mananwala canal minor in the area of village Chanianwali, District Sheikhupura. He further reported the matter to the Sub-Divisional Officer, Irrigation who went on the spot and inspected it and found an illegal cut on the canal minor. The complainant also reported the matter to the police and accordingly the case was registered on 29-9-1972 by the police at Police Station Chuharkana, District Sheikhupura. After completion of the investigation, the police submitted a challan against the petitioners and the two acquitted co-accused. The prosecution examined as many as nine witnesses to prove its case against the petitioners. There are three eye- -witnesses produced by the prosecution in the case. Umar Din (P.W.I) has stated in his statement that he saw Rafique, Sarwar and Muhammad Khan causing a cut in the canal with their Kassis.
Thus, the water from the canal started flowing through that cut towards the fields. The witness further stated that he raised an alarm whereupon the accused ran away. Muhammad Sharif (P.W.2) stated that after the morning prayers, he went at the spot and on hearing the noise he saw Muhammad Khan, Sarwar and Rafique accused coming from the spot with Kassis in their hands.
This witness also stated that he saw the cut in the canal. He further stated that Umar Din P.W.1 and Ghulam Farid were also present on the spot. Ghulam Farid (P.W.3), father of Umar Din (P.W.1) stated that at the morning prayers time he saw Rafique, Muhammad Khan and Sarwar accused while making cut in the canal and on their alarm the accused ran away. Niaz Muhammad S.D.O., Irrigation (P.W.4) stated that on information conveyed by the complainant Syed Nazim Husain, he inspected the spot on 17- 9- 1972 and himself saw the breach in the canal. Ghulam Dastgir (P.W.5) stated that he prepared the statement (Exh.P.A.) of illicit irrigation. Allah Dad (P.W.6) stated that the police took into possession the statement (Exh. P.A.) vide memo. Exh.P.A./l. Abdul Rashid (P.W.7) is a witness of the aforesaid recovery, Masood Ahmad A.S.I. (P.W.9) investigated the case and prepared the formal F.I.R. (Exh.P.B./2) which was recorded by Habibullah on his report as Exh.P.B./1.
3. Petitioners Muhammad Khan, Sarwar and Muhammad Rafique were charged under section 430/34, P.P.C. But they did not plead guilty to the said charge. In their statements under section 342, Cr.P.C. They totally denied the prosecution allegations and stated that they have been involved due to enmity.
4. It is contended by learned counsel for the petitioners that the occurrence in the case took place on 17-9-1972, but the report was lodged with the police on 29-9-1972 after the expiry of 12 days. The prosecution has failed wholly to explain this fatal delay in lodging the F.I.R. It is stated by learned counsel that Syed Nazim Husain, Overseer who was the complainant in the case, has not been produced by the prosecution. It is also stated that although the F.I.R. Was lodged with the police station after 12 days, despite that the names of the petitioners were not mentioned as accused persons in the F.I.R. This creates considerable doubt in the prosecution story. It is next submitted that the evidence of the eye--witnesses (P.Ws. 1, 2 and 3) is interested an inimical, inasmuch as it is admitted in the evidence that there is criminal litigation going on between the petitioners and the witnesses. From the eye-witness account it is submitted by learned counsel that the police came at the spot two or three days after the occurrence. This being so; it is not understandable as to why the registration of the case was so much delayed. Learned counsel for the petitioners maintained that this is admitted in the evidence that the canal was broken thrice from the same place from which the breach in question took place on 17-9-1972. From this he argued that the Canal authorities were negligent and they did not reinforce the place of breach of the canal. Finally it is contended that this would be a case of no evidence at all. Muhammad Rafique Butt, Advocate, who appeared on behalf of the State, was not able to rebut the weighty contentions raised by learned counsel for the petitioners.
5. I have heard learned counsel for the parties at length and have gone through the whole evidence very minutely. I have come to the conclusion that the prosecution has failed to prove its case against the petitioners, inasmuch as the eye-witnesses produced by the prosecution have admitted in their statements that they have criminal litigation with the accused. Umar Din (P.W.1) has candidly admitted in cross-examination that before the instant occurrence, he had a fight with the accused persons. Muhammad Sharif (P.W.2) is a chance witness. He has stated that he saw the accused persons while going leisurely. The witness further conceded that he had litigation with the accused in the High Court. Ghulam Farid (P.W.3) stated in his statement that the police reached the spot on the second day after the occurrence. He further stated that the minor had already broken thrice before the alleged occurrence. Thus, these witnesses cannot be relied upon because their statements are full of contradictions and they do not inspire confidence. In my considered view, the witnesses are interested, partial and are not telling the truth. This being so, I reject the ocular account of these witnesses.
6. It is also in evidence that the canal minor in question had broken thrice before the occurrence took place. This means that the defective place of the bank of the canal minor was not properly and effectively repaired by the canal authorities. This is the reason that the breach was caused to the bank so occasionally. It is possible that because of heavy pressure of water the place in question might have been broken for the fourth time. It is not understandable, as stated earlier, as to why the lodging of the F.I.R. With the police station was so much delayed. The prosecution witnesses have not said a single word so far as this fatal delay is concerned. There is considerable force in the argument of learned counsel for the petitioners that since the body of the F.I.R. Does not contain the names of the petitioners as accused persons, their names might have been included in the list of accused persons on the conspiracy of the witnesses who were inimically disposed against the petitioners.
7. For the reasons stated above, I have come to the definite conclusion that the prosecution has failed to prove its case against the petitioners beyond reasonable doubt. I, therefore, set aside the conviction and sentence awarded to the petitioners and proceed to acquit them. They are already on bail. They shall be discharged from the bail bonds they have executed. The revision petition is accordingly accepted.