P L D 1959 W (PLP)

S. 33-Unauthorised irrigation‑Case not made over to police for detailed investigation Accused cannot be held responsible for penalty on basis of allegation said to leave been proved to satisfaction of Divisional Canal Officer Sada Hussain, Deputy Collector for Irrigation Branch. The allegation in the first instance was that Shah Muhammad, Nawab Din, Nizam Din and Nazir Ahmad obtained unauthorised supplies of water by cutting a bank between the watercourse and the minor se that the supplies in the watercourse were augmented. This was alleged to have been done by them on the night between the 8th and 9th December 1953. Allegations were made against them by the other irrigators of the watercourse who are now repre sented by the petitioners before me. They had shown an irrigation official that the cut had been filled in with fresh earth which was still loose. The Zilledar checked the irrigation in the lands of Shah Muhammad and three others on 11‑12‑53 and found that 23 acres had received irrigation. The report of the Zilledar does not state in so many words that he had made sure that each of those 23 acres was still wet from Irrigation, but it is clear that the fields which had been grown by the said four persons in that locality were more than 23 acres. Thus, the Zilledar must have prepared a check list of such fields only as were wet with fresh irrigation. The said four persons had the right of obtaining water from the watercourse for 36 hours. In that period, 15 acres or so can be irrigated in the normal way. These four persons state that it is also possible to carry the irrigation to 23 acres during 36 hours. I have, however, no doubt that this is an overstatement. Altogether, it appears that the allegation against the four irrigators was justified. The Executive Engineer had imposed a penalty on the 23 acres at six times the crop rates. The Deputy Commissioner heard the appeal of the four persons penalised and expressed surprise at the fact that the Irrigation authorities had not made over the case to the Police. He also thought that the other irrigators, who are inimical to these four persons, might have engineered a false case against them. He, therefore, thought that the case was a doubtful one. He consequently could not put the blame on the four named irrigators only but on all the irrigators of the watercourse including the party of the petitioners. The penalty imposed was Rs. 750‑6‑0. I am altogether not convicted that the offence of Shah Muhammad and three others has been proved. The suspicions of the Deputy Commissioner are justified. When the guilty persons had been named before the Irrigation authorities, the case should have been made over to the Police for a detailed investigation. The Deputy Commissioner's conclusion, however, cannot be supported because the present petitioners cannot by any stretch of imagination become responsible for a penalty on the basis of the allegations said to have been proved to the satisfaction of the Divisional Canal Officer. Altogether, it would be a proper decision if the penalty is remitted in toto so that neither of the two parties concerned is held responsible. I accept this petition for revision and direct accordingly. K. M. A. Petition accepted.