Through the instant petition under section 561-A, Cr.P.C. The petitioners Muhammad Hussain and Abdul Majeed have sought the quashment of , a portion of the judgment passed by the- learned Additional Sessions Judge D.I. Khan on 17-7-1999 wherein it is stated that the watercourse demolished be restored to its original position where it was.
2. The epitome of the instant matter is that Abdur Rashid respondent No,2 had filed a complaint under section 70 of the Canal and Drainage Act against the petitioners in the Court of Canal Magistrate D.I. Khan stating therein that the petitioners along with their co-accused duly armed with deadly weapons demolished his watercourse measuring 13/14 karams. The petitioners were put to trial and the evidence was recorded and resultantly the petitioners were convicted under section 70 of the Canals and Drainage Act and were sentenced to suffer three months R.I. Each and a fine of Rs, 200 each. In default of payment of fine further one month R.I. Was ordered. Such convictions and sentences were challenged by way of an appeal before the learned Sessions Judge D.I. Khan and it appears that the appeal was transferred to the diary of Additional Sessions Judge D.I. Khan. The respondent No,2 had also filed a revision in the same Court for the enhancement of the sentences. After hearing the appeal and revision, the learned Additional Sessions Judge accepted the appeal of the petitioners and their convictions and sentences were set -aside. However, the abovementioned impugned sentence was added in the interest of justice but the revision was dismissed.
3. The petitioners have now sought the abashment of the impugned portion and the learned counsel appearing on their behalf has contended that in view of section 522, Cr.P.C. The restoration of the immovable property can be ordered only in case of conviction, but in the instant case when the conviction was set aside and the accused were acquitted then the direction regarding the restoration of the demolished watercourse to its original position is unwarranted.
4. On the contrary, the learned counsel appearing for the respondents have opposed the present petition by arguing that the order regarding the restoration of the demolished watercourse is perfectly justified and equitable which is not open to exception on the line of arguments advanced on behalf of the petitioners.
5. I have heard the rival arguments and anxiously examined the record and the relevant position of law. There is no cavil with the proposition that the restoration of the immovable property under section 522, Cr.P.C. Can be ordered only when the conviction is recorded. A critical analysis of the situation and the matter in controversy would show that in the instant matter the situation is not totally governed by section 522, Cr.P.C. The said section of law deals specifically with the restoration of immovable property. The instant matter cannot be equated with the restoration of property envisaged by the said section. In the juristic science, the concept of possession is used in various senses. There are, amongst others, two well-known kinds of possession. One is the Corporeal possession and the other is called incorporeal possession. The Incorporeal possession is the possession of anything other than a material object, such as a way over another's land; or a trade-mark, a patent etc. It is commonly called the possession of a right. The Incorporeal possession is also quasi possession something which is less than possession and in such kind of possession it is necessary that there must be the actual continuous use and enjoyment of the right.
It is obvious that in the instant case, the watercourse meant for flowing water to the land of the respondent No,1 was demolished. This is not a piece of land of which the respondent No,1 was dispossessed so as to bring it within the definition of depriving a person of his possession of the immovable property. The demolition of the watercourse has virtually deprived the respondent No,1 of his right of irrigating his land. Thus, it cannot be equated with the dispossession of immovable property contemplated by section 522, Cr.P.C. The learned appellate Court while seized of the matter in appeal was possessive of the powers conferred upon it by section 423, Cr:P.C. And the order passed by the learned appellate Judge is the outcome of the said section of portion law, the relevant whereof is reproduced below:--- ' SECTION 423, Cr.P.C.(1)...............
(a)............. Make any amendment or any consequential or incidental order that may be just and proper.
6. Thus, clause (d) of the said section is very much clear on the point which gives ample powers to the appellate Court to make any consequential or incidental order which may be just and proper.
Such an order 'is to be passed by the appellate Court keeping in view the attending circumstances of the case and to secure the ends of justice.
7. Thus, in this matter the watercourse demolished by the petitioners was not the immovable property in the strict sense which is envisaged by section 522, Cr.P.C, It was the order of restoration to the original position of a watercourse with which the right of the respondent No,2 for carrying water to his land was attached. As such, such an order cannot be made a subject of attack on the ground of applicability of section 522, Cr. P.C.
8. In wake of the above discussion, the impugned portion of the order does not suffer from any illegality or jurisdictional defect nor it is unjustified in circumstances of the case. Consequently, this petition is dismissed as without any force. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.