1. This is an appeal filed under section 417 of Cr.P.C., whereby the acquittal order, dated 12-2-1998 passed by the 1st Judicial Magistrate, Sukkur in direct Complaint No. 238 of 1997 entitled Ali Mardan v. Muhammad Bax and another has been assailed.
2. The matter had been fixed for Katcha Peshi, however, with the consent of both the learned counsel it was argued finally before this Court today, hence I propose to dispose of the matter through this order.
3. The brief facts of the matter per the appellant are that he owned some agricultural land bearing.
4. Survey Nos. 396, 398, 400 to 403, 405, 453, 454, 456 and 459, situated in Deh Miani Baghat, Taluka Rohri, District Sukkur, which was irrigated through Sluice No.14 meant exclusively for the applicant's use. In the year 1998, the respondent/acciised purchased adjoining land bearing Survey Nos.448, 451, 452 and 60 paisa out of Survey No.449 from one Dad Muhammad in the same Deh and these were irrigated through Sluice No.15.
5. In the year 1992, F.C. Suit No. 44 of 1992 was filed by the respondent against the applicant and others in the Court of lInd Civil Judge, Sukkur, praying that the plaintiff's utilization of water from Sluice Na. 14-L be upheld and the defendants be restrained from dismantling the Kasi (channel) of the plaintiff constructed on such sluice except in due course of law. Alongwith the suit an application was also filed under Order 39. rules 1 and 2, C.P.C. praying for interim stay. This application was dismissed vide order, dated 21-1-1993, passed by the learned trial Court against which the respondent filed an appeal before the Court of learned District Judge, Sukkur being Civil Appeal No. 7 of 1993, whereupon vide order, dated 3-9-1996 the findings of the learned trial Court as to interim stay was set aside and a temporary injunction as prayed for by the plaintiffs was granted to the extent of their survey numbers till decision of the suit or after expiry of six months whichever occurred earlier.
6. Upon expiry of six months in question, the respondents again started irrigating their lands from the sluice, which feeds the appellant's lands and consequently on 11-6-1997 a legal notice was sent to the respondents by the appellant through his counsel. However, this did not deter the respondents and consequently the matter was reported to Mukhttarkar Rohri, who visited the site on 10-7-1997 in the presence of respondent Muhammad Bux and the appellant. Thereafter, a direct complaint was filed on 13-7-1997 before the learned 1st Judicial Magistrate, Sukkur against the respondents. The statements of the appellant complainant and that of his witnesses were recorded and after evaluating the evidence necessary process was issued against the respondents and finally- the charge was framed on 9-10-1997. Thereafter, the respondents filed an application under section 249-A, "Cr.P.C. which was heard and they were acquitted vide impugned order. dated 12-2-1998. and hence this appeal.
7. On the basis of the foregoing facts, learned counsel for the appellant has submitted that the watercourse in question was sanctioned in favour of the appellant's father prior to independence and the appellant's family has been cultivating their lands from such watercourse for a very long time. On the other hand, the lands of the respondent was never cultivated at all before they purchased it. He has further contended that acquittal can only be resorted to once a Court comes to the conclusion that there could be no probability at all of conviction. Learned counsel has accordingly submitted that from the reasoning in the impugned order it is not very clear as to whether no possibility at all of conviction could exist. He has also submitted that after evaluation of the evidence before the trial Court it had issued process whereafter it was bound to proceed as per law viz. framing of the charge. recording of pleas, evidence and then pronouncement of judgment.
8. However, per learned counsel, after framing of the charge no fresh material was placed before the learned trial Court which could justify the acquittal. In support of this proposition, learned counsel has relied upon Muhammad Sadiq v. The State and others (1999 M LD 2549) and Malik Muhammad Ibrahim v. The State and 4 others (1985 PCr.LJ 929). Even otherwise, learned counsel has submitted that since the ratio of the impugned order was the pendency of a civil dispute between the parties, at best the private complaint could have been adjourned sine die till the decision of the civil suit which course of action has been recommended by the superior Courts in cases of this nature, as held in Abdul Haleem v. State and others (1982 SCM R 988), Muhammad Akram v. Mir Afzal and 4 others (2000 MLD 862) and Zafaruddin Ahmed Zubair and 2 others v. The State and another (1999 M LD 909).
9. In reply, Mr. A.M. Mobeen Khan, learned counsel for the respondents, has firstly submitted that earlier a private complaint was filed by the appellant in 1992 which was dismissed vide order, dated 6-1-1994 passed by FCM, Rohri. The appellant filed an appeal against such dismissal order, but such appeal was also dismissed on 31-10-1995, by the learned Vth A.S.J., Sukkur. Learned counsel has referred to all these documents which he has tiled alongwith his statement on 22-8- 1998. Consequently, he has submitted that once the matter has been finally decided by .a judicial forum, the second complaint filed on the same cause of action was a case of double jeopardy, which is prohibited under Article 13 of the Constitution as well as section 403, Cr.P.C. In support of this proposition, he has relied upon Achar and 6 others v. The State (1999 PCr.LJ 181). Secondly, learned counsel has submitted that in terms of section 417(2), Cr.P.C. special leave to appeal has to be obtained within thirty days of the acquittal order before this Court can entertain the appeal.
10. Next, learned counsel has submitted that the present complaint is not the cutting of the complainant's watercourse, but that after expiration of stay order by the Civil Court the respondents are continuously using the watercourse. This per learned counsel could never be an offence and at most it would amount to contempt of Court before the Civil Court, as the prayer in the suit before the Civil Court was that the appellant be restrained from interfering in the respondents' use of their watercourse, which would at the most entitle the appellant to interfere in such watercourse after the stay has been vacated. Obviously, this does = not mean that the respondents could not use the watercourse.
11. Learned counsel's next contention is that as the offence is under section 430, P.P.C. viz. mischief by injury to works of irrigation or by lawfully diverting water is a cognizable offence hence the appellant should have first gone to the police. This is not stated in the complaint and to that extent, therefore, the complaint itself was not, maintainable. Learned. counsel has also submitted that no inquiry is necessary at the preliminary stage, if no case is made out. For this proposition, he has relied upon Abdul Wahab Khan v. Muhammad Nawaz and 7 others (2000 SCM R 1904) and Muhammad Salim and 4, others v. Fazal Muhammad and another (2001 SCM R 1738).
12. Next, learned counsel has submitted that a charge could also not be framed against the respondents before the learned trial Court as no time And place was given as contemplated under section 220, Cr.P.C., for which he has relied upon Kenneth Marshal v. The State (1997 Cr.LJ 694). So also it has also not been stated that at what place the. alleged cut to the watercourse was given.
13. Finally learned counsel has contended that the respondents/accused proceedings before the trial Court could be acquitted at any stage for which he has relied upon State v. Ashiq Ali Bhutto (1993 SCM R 523). Finally learned counsel has contended that admittedly the dispute between the parties is of a civil nature which was sub judice. before the Civil Court and hence institution of a criminal case in order to pressurize the respondents.. would certainly amount to an abuse of the Court's process and as such the respondents were correctly acquitted in the circumstances. He has referred to Javid Hamid v. Hassam Jan and 2 others (PLD 1991 Peshawar 121) in this regard.
14. In rebuttal, Mr. Abdul Qadir Shaikh for the appellant, has submitted that Muhammad Salim v. Fazal Muhammad (supra), was not applicable since the Hon'bleSupreme Court found that no evidence was present in the private complaint for issuing process whereas in the present case process had already been issued after the preliminary inquiry under section 202, P.P.C. Secondly,' learned counsel has submitted that there is no question of double jeopardy since the first cause of action arose in 1992 when the respondents cut the watercourse and used the water from the said course. Subsequently, it was filled up and then again cut in 1997 and such allegation is contained in the complaint, filed before the learned Magistrate. In this respect he has submitted that filing of a police case and private complaint concurrently would only amount to double jeopardy and has relied upon Achar and 6 others v. The State (1993 PCr.LJ 181) in this regard.
15. I have heard both the learned counsel and my conclusion is as follows: It is quite apparent that the dispute between--the parties is one of a civil nature since it pertains to the alleged use of the respondents' utilization of water from Sluice No. 14-I which the applicant claims to be for his own use exclusively. As much is apparent from the plaint in F.C. Suit No. 44 of 1992, which was filed by the respondents against the appellants and others before the learned. IInd Senior Civil Judge, Sukkur. The plaintiffs/respondents have clearly stated .in the plaint that their lands are also irrigated of Sluice No. 14 and in support thereof relied upon the Revenue Record and have accordingly prayed that the learned Civil Court be pleased to declare that the plaintiff's use of water from Sluice 14-L to be lawful and that the defendants be restrained from dismantling the plaintiff's Kasi constructed for the purpose of obtaining water from the said sluice etc. It would also be seen that prior to the filing of the suit on 11-4-1992 the appellants had also filed a direct complaint before the 1st Classs Magistrate, Rohri, alleging that the respondents had in April, 1989 obtained water from Sluice 14, which was meant exclusively for appellant's use and hence committed an offence for which they were accountable. The respondents moved an application under section 249-A, Cr.P.C. for their acquittal, which was allowed vide order, dated 6-1-1994 passed by the learned Civil Judge and FCM, Rohri mainly on the grounds that the dispute between the parties was of a civil nature and that in the circumstances of the case there could not be any possibility of a conviction. The order of the learned FCM, Rohri was appealed before the Vth ASJ, Sukkur who vide order, dated 31-10-1995 upheld the order of FCM, Rohri also on the basis that there is a civil dispute amongst the parties and that even otherwise the details of the incident were not given in the complaint viz., as to where and when the cut was given to the watercourse and neither any witness has been cited in the complaint. A perusal of the record would also show that the prayer in the civil suit was to prevent the appellants from interfering in the respondent's use of water through Sluice No.14-L. The application for interim stay was dismissed by the learned Civil Court on 21-11-1993 whereafter the respondents filed an appeal before the learned District Judge, Sukkur viz., Civil Appeal No. 7 of 1996 who set aside the trial Court's order vide order, dated 3-11-1996 and allowed the temporary injunction as prayed for to the extent of the respondent's land till the decision of the suit or expiry of six months whichever occurs earlier.
16. In the second complaint, filed by the appellants before the 1st Judicial Magistrate, Sukur on 1-8- 1997, the allegation is that after expiry of six months the respondents have again started cultivating their lands through Sluice No. 14 by giving the watercourse a cut and thus committed an offence under section 430, P.P.C. In this respect, it would be seen that this is the second attempt on the part of the appellants to agitate their grievances against the respondents b way of a private complaint after their first complaint had pot achieved the desire result. It would also be seen that the cause of action for both the complaints is the same viz. that the respondents by giving a cut to the watercourse have unlawfully diverted the water meant exclusively for the appellants. In the circumstances of the case, in my view the second complaint would certainly not be maintainable as the matter has reached finality when the learned Vth Additional Sessions Judge, Sukkur had dismissed Criminal Revision Application No. 11 of 1994 filed by the appellant against the respondents. Even otherwise, it would be seen that the second complaint was filed on the vacation of the stay order granted by the learned Appellate Court on 3-11-1996. This stay order was to the effect that the appellant's application for temporary injunction filed before the learned trial Court was allowed wherein the prayer was that the respondent's use of water from Sluice 14-L may not be disturbed by the appellant. At the most, therefore, after" expiry of six months the appellants would be free to obstruct the respondents of water for the said watercourse which is not to say that the respondents had previously not been using such water and had given a fresh cut to the water- course after expiry of six months.Consequently, in my view, not only is the matter, of a Civil nature being sub judice before a civil Court but also the nature of the offence itself for which no detail has been given cannot possibly result in any conviction in view of the aforesaid facts.
17. Regarding learned counsel for the appellant's contention that after the issuance of process and framing of the charge the learned trial Court was bound to proceed in accordance with law and record evidence etc. in my opinion in view of State v. Ashiq Ali Bhutto (supra) acquittal can be recorded at any stage provided the trial Court had reached the conclusion that there was no possibility of any conviction.
18. As regards learned counsel for the appellant contention that the criminal proceedings be adjourned in order to await the results of the civil suit between the parties, in my opinion this would be an unnecessary exercise as I have already reached the conclusion that in the circumstances of the case there is no possibility of a conviction. In the cases cited by learned counsel for adopting this course of action viz. Abdul Halim v The State, Muhammad Akram v. Mir Afzal and 4 others and Zafaruddin Ahmed Zuberi v. The State (supra), the facts were different since, the dispute of a civil nature between the parties was regarding documentation viz power of attorneys and Sale Agreements. In the present case a criminal offence has been alleged against the respondents which as observed above has not all been substantiated.