' Shah Jehan and his brother Sher Zaman, respondents were acquitted vide order dated 18-6-2002 of learned Deputy Collector/Canal Magistrate-11, D.I. Khan in a private complaint lodged by appellant Ellahi Bakhsh under section 70 of Canal and Drainage Act.
1873.
2. Brief facts of the case leading to the filing of instant appeal are that Ellahi Bakhsh, appellant, filed a complaint under section 70 of Canal and Drainage Act, 1873 against Shah Jehan, Sher Zamart and Habib, in the Court of Deputy Collector/Canal Magistrate, D.I. Khan to the effect that respondents at the instance of their co: accused Habib demolished water course of appellant illegally leading from Moga No.77400/L Takarwah Rajbah, situated in the limits of village Rangpur Shumali, Tehsil Paharpur, District D.I. Khan depriving the appellant of his due right of irrigation.
3. The complaint remained pending the Court of trial Magistrate where evidence of the complainant was recorded. Thereafter, accused were examined and after hearing the parties, the impugned order was passed. However, during pendency of the complaint, appellant effected compromise with accused Habib and he was acquitted under section 248, Cr.P.C.
4. Mr. Muhammad Kamran Niazi, Advocate, for the appellant contended that the impugned order is bereft of cogent reasons and is not a speaking order; that the water course in question was the only source of irrigation of the land of appellant which was demolished by the respondents as deposed by Patwari Halqa and report of learned trial Court but all these facts have not been properly appreciated by the learned trial Magistrate and excluded out of consideration, which has resulted in manifest injustice.
5. Mr. Farooq Akht at Advocate for the State adopted the arguments advanced by learned counsel for the appellant maintaining that impugned order of acquittal is the result of misreading and non- reading of evidence and cannot be allowed to remain intact.
6. On the other hand, Mr. Ahmad Ali Khan, Advocate for the respondents defended the impugned judgment and maintained that it is based on proper appreciation of evidence as the appellant had not been able to prove that the water course was demolished by the respondents which deprived the appellant of his only source of irrigation.
7. A right to obtain the passage of water over another man's property can be secured legally by the Canal Department acting on its own authority or it can be obtained on the application of a private person to the Divisional Canal Officer under section 21 of the Act. Such a right can also be obtained by a private agreement. But where a person constructs water course on his own land and merely permits another to use it, he cannot be held guilty under section 70 if he subsequently discontinues the permission and removes the water course, since the Act in no way contemplates that one man has a right to the passage of water for his fields through fields of another except that such right is derived under the Act from the canal authorities or obtained by private agreements.
8. Water course 'means any channel which supplies water from a distributory (and very rarely from a canal) and is not maintained at the cost of Government: Therefore, water course passing through one's land is a water course within the meaning of the Act.
9. It is evident from the record that the complainant's turn is Khata No.15 whereas Shah Jehan respondent turn is Khata No.17. Water flows from complainant's land and comes to the land of Shah Jehan and land of one Altaf Hussain intervenes. In the circumstances, there appears to be no occasion for the respondents to cause obstruction or demolish the water course.
10. Perusal of record reveals that water course in question is not marked on 'Shajra plan' as well as on Warabandi map Complainant has no right to use it. As per Warabandi list (Exh.C.W.5/1), the complainant's turn is at Khata No.15 while accused Shah Jehan's turn is at Khata No.17. As a rule of Warabandi, the complainant has to take water from Khata No.14. Hence, this situation does not support the case of prosecution.
11. It needs no reiteration that the right to take water from a water course must be established through cogent and convincing evidence. It must not be based on shaky evidence. The evidence of Patwari in such like cases is of vital importance. In the instant case, the appellant has totally failed to establish the existence of water course and its demolition at the hands of respondents justifying him to ventilate his grievance through filing complaint under section 70 of the Act (ibid). Ramji Lal and others v. Emperor AIR (29) 1942 Allahabad 102, Hukman and others v: Emperor AIR 1921 Lahore 327 and Hetani Lambardar v. Mokha PLD 1956 Lahore 490.
12. For the above reasons, I hold that the learned trial Magistrate has rightly acquitted the respondents and the impugned order being perfectly correct calls for no interference of this Court in its appellate jurisdiction. The appeal fails which is hereby dismissed.